Justice Department wrong to encourage prosecutions it’s fearful of losing

The American Bar Association held a big shindig down in Miami last week, with hundreds of white-collar criminal defense lawyers gathering to get up to speed on developments in the law. Because of COVID, it’s been a while since everyone was able to get together in person. The event is known for panels that include top government officials explaining the future of white-collar prosecutions and what is to be expected in the coming years. This conference was no different — in fact, Deputy Attorney General Lisa Monaco gave the keynote address on corporate crime.

Her speech included a comment that jumped out to me and should be a serious cause of concern for white-collar criminal defense lawyers. While recognizing that “cases against corporate executives are among some of the most difficult that the department brings, and that means the government may lose some of those cases,” she explained that “the fear of losing should not deter [prosecutors].”

But the fear of losing is exactly what should deter prosecutors from bringing the weight of the criminal justice system against an individual.

The mere filing of a criminal case against a corporate executive will likely lead to that person’s firing, financial ruin, inability to work, reputational harm, emotional scarring, and the like — even if the individual is eventually exonerated. Filing a criminal case should be no small matter.

Monaco, of course, knows this. She also knows that over 97 percent of people charged will plead guilty to something — so, there is no real fear of losing. It is well documented that even innocent people are now forced to plead guilty because of the ridiculously high risk of proceeding to trial and losing (many years in prison) versus pleading guilty and going home relatively quickly.

Knowing that almost everyone will plead guilty has emboldened the government to push the envelope and bring questionable white-collar cases, like the recent criminal charges against executives for agreeing not to hire their competitor’s employees, a first for the Department of Justice.

Although there are civil and regulatory remedies for these companies and executives, the line between criminal and civil violations has been blurred. The truth is that there is no good guidance for when a civil case turns into a criminal one. And that’s a real problem, especially where criminal defendants have to rely on “law and order” judges to screen out meritless cases. Once a criminal case is brought, a person’s life is on the line. So, if a prosecutor believes that he will not prevail — if he has “the fear of losing” — then a criminal case should not be brought.

But the pendulum might start swinging in the other direction.

By bringing these questionable cases, executives may risk criminal trials even though they risk significantly more incarceration (the trial tax), if they proceed to trial and lose.

Take that antitrust prosecution I mentioned above in which DOJ now says for the first time that agreeing not to poach a competitor’s employees should be a crime. The defendants in those newly-minted cases have brought powerful and persuasive motions to dismiss. And in full-disclosure, I — along with a number of other lawyers — have filed a friend-of-the-court brief for the National Association of Criminal Defense Lawyers, urging the court to grant those motions.

If those motions are denied, the defendants hopefully will chose to fight and go to trial instead of surrendering — because the theory of prosecution has never been tested. And once a few defendants start having the courage to fight, others will follow suit. 

Monaco also discussed “corporate culture” in her talk and said: “A corporate culture that fails to hold individuals accountable, or fails to invest in compliance — or worse, that thumbs its nose at compliance — leads to bad results.” 

Monaco should focus on DOJ culture. The Department of Justice is wrong to foster a culture of bringing weak cases, novel prosecutions, and charges that it fears it will lose just so that it appears to be tough on corporations or white-collar defendants. If a prosecutor is afraid that the case will not be successful, the right thing to do would be not to bring the case.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country, and hosts the popular podcast, For the Defense. Follow him on Twitter @domarkus.