By Sara Kropf
Jury selection as a funny thing. As I’ve said before, it is far more art than science.
Most courts have a list of standard questions of the ask every juror during jury selection. One of those questions is whether or not the prospective juror is biased for or against a law enforcement witness.
This question leads to the unfair exclusion of African-American jurors.
Courts should stop asking it.
The Purpose of Voir Dire
Voir dire is the process by which the court, and sometimes the parties, ask prospective jurors questions to determine if they would be fair jurors for the case. In many courts, the judge will first ask a list of fairly standard questions to the entire jury pool. Then, each juror will be called to the bench to be asked follow-up questions by the court and the parties about their initial answers to the questions.
The Supreme Court has said that “[v]oir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu’Min v. Virginia, 500 U.S. 415, 431 (1991). That does not mean that any question is an appropriate one during voir dire. For example, I’ve never seen a court allow the parties to ask a jury to describe her political views.
The Supreme Court has invalidated laws and practices that systematically exclude racial minorities from juries and prevents parties from using peremptory challenges to strike a prospective juror based on race. Voir dire may not be used to advance one party’s agenda to exclude racial minorities from the jury.
The Standard Question about Law Enforcement Officers
But what if a standard question asked by the court systematically excludes members of the jury pool who are African-American? What then?
By Dan Portnov
Last week, the government moved one tiny step closer to being able to “outsource” its criminal investigations to non-DOJ actors. In a post-trial order, Southern District of New York Chief Judge Colleen McMahon excoriated the government for effectively outsourcing its investigation into trader Gavin Black’s Libor rigging to his former employer Deutsche Bank. Nevertheless, Judge McMahon denied Black’s motion for relief under Kastigar v. United States and, in a separate order, affirmed the conviction at trial of Black and his co-defendant and fellow trader Matthew Connolly.
Just what happened here and what does it mean for companies and individuals under DOJ investigation?
By Sara Kropf
The Report on the Investigation into Russian Interference in the 2016 Presidential Election (a/k/a the Mueller Report), is a veritable treasure trove of obstruction-of-justice efforts by the President.
We’ve written before about obstruction of justice, here and here. Ultimately, the Mueller Report does not make an explicit finding that the President broke the law. It defers to the opinion of the Office of Legal Counsel (OLC) that a sitting president may not be indicted and therefore concludes that “fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”
The story doesn’t end there.
Reading together two of the Mueller Report’s conclusions leaves the distinct impression that this matter could be far from over.
First, the report reminds us that the OLC recognized (a) that a criminal investigation of the President is permissible and (b) that a President does not have immunity from criminal prosecution after he leaves office. Therefore, said the report, the SCO “conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
Second, the report makes clear that if it could clear the President, then it would do so explicitly. But it doesn’t. In fact, “[w]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”
President Trump is not “exonerated”
The evidence against him has been preserved
Possible prosecution after President Trump leaves office
By Dan Portnov
Occasionally we work on cases or investigations that involve highly wonky subject matter – stuff that only lawyers or legislators would know and care about. One of those recent matters touched on the Stop Trading on Congressional Knowledge (STOCK) Act, a (relatively) recent piece of legislation that attempts to extend insider-trading concepts to elected officials, among other things. Since our interest has been piqued, and the STOCK Act covers a broader swath of conduct than its name implies, we thought it a good idea to explain some of the basics of the STOCK Act, and whom it might affect.
I’m in trial this week in a white-collar criminal case. Since I couldn’t manage to find the time to write a substantive post, I thought I’d write instead about something practical: what I bring with me to court when I’m in trial.
Being in trial is a physical event. You are lugging boxes back and forth to the courthouse. Even with electronic courtrooms, we usually still need paper copies of all the exhibits to give to the judge and to the witness on the stand.
Plus, as a defense counsel, I’m always holding back a few impeachment documents in hard copy to use at just the right moment.
The problem with all this stuff is that most courthouses won’t let you leave it in the courtroom overnight because of security concerns. That is not such a big deal for the AUSA who likely has an office in the courthouse building. But for a defense lawyer, it’s a huge hassle to have to drag everything to and from court each day.
Apart from all the documents I need for trial, here’s a list of the items that I bring with me every day:
By Dan Portnov
Last week I had the pleasure of attending a fascinating panel on congressional investigations hosted by MoloLamken. The panel featured defense attorneys Karen Christian, Reginald Brown, Amy Jeffress and Raphael Prober and was moderated by Molo’s Justin Shur.
We have written about congressional investigations before (here and here), and note that they are indeed unique creatures. The panel reinforced this notion. Among some of the key takeaways and tips from the panelists:
A judge says a lot of things during a sentencing. Two of them are really, really important.
First is the number of months in prison. “One hundred twenty” is a lot different from “a year and a day.”
Second is whether the sentence imposed for multiple offenses is “consecutive” or “concurrent.”
Consecutive is bad. It means that sentences for the various crimes of conviction will be served one after another.
If you are convicted of one count of mail fraud, one count of wire fraud and one count of conspiracy and sentenced to 18 months on each one, then your total prison sentence is 54 months, if the judge says they are consecutive sentences.
Stacked is a less formal way of saying “consecutive.” The sentences for each crime of conviction are stacked on top of each other. (If you were wondering why there is a picture of pancakes with this post, this is why.)
Concurrent is good. It means that the sentences for the various crimes of conviction will be served at the same time. For the example above, you would serve 18 months total.
This post is the seventh in a series of posts for non-lawyers, or non-securities lawyers, who might suddenly find themselves on the wrong end of a Securities and Exchange Commission document request, subpoena or call from Enforcement division staff.
By Dan Portnov
In our last SEC Investigations 101 post we teased the Wells Notice but ultimately wrote more about pre-Wells strategy in the SEC investigation: the white paper and the pre-Wells meeting. So let’s jump right in. Enforcement staff have issued the Wells notice. What now?
“Each of us is more than the worst thing we’ve ever done.”
– Bryan Stevenson
The fundamental truth of Mr. Stevenson’s quote is tested every time a defendant is sentenced after conviction.
Too often, prosecutors act at sentencing as though they cannot fathom that my client is anything more than the crime he committed. During my sentencing presentation, I try to show the judge that my client is much more. One of the key parts of that presentation is my client’s statement.
That statement is so important. And so damn scary.
Before we get to why it’s so scary, you need to understand the basics of how the federal sentencing process works. In the movies, the defendant is found guilty and then the judge issues a sentence from the bench right away.
That’s not how it works.
By Dan Portnov
SEC investigations can last a long time. Even when the Enforcement staff comes charging out of the gate, the investigative pace invariably slows once there are terabytes of documents and hundreds of pages of testimony to review. The staff might even lose contact with your lawyer for months at a time, causing your lawyer to sagely advise you not to poke the sleeping bear.
And then the other shoe drops: the SEC wants to charge you with securities laws violations. Your lawyer tells you that a Wells Notice is coming. What exactly is a Wells Notice? And is there anything that you can do at this stage to avoid litigation with the SEC?