Thursday, February 15, 2007

A Blue-Collar Reaction to a White-Collar Defense

Further to the issue of the Libby defense, I'd like to point out that this is another tried and true example of how blue collar criminal defendants are treated differently from white collar criminal defendants.

Consider the typical blue collar criminal case where evidence is circumstantial. When have you ever heard of a blue-collar case in which the defense has been permitted wide latitude to rebut evidence of intent with third-party testimony of what a busy man the defendant is? When have you ever heard of a blue-collar case in which the defense is allowed to rebut evidence of intent with the argument that what the defendant is alleged to have done is stupid and no one would be stupid enough to do what the defendant is alleged to have done? The prosecutor's rejoinder to those arguments on closing is that the criminals we tend to catch are the stupid ones; the really smart ones get away.

Here, Libby's lawyers argue that a busy man like Scooter, who holds down "the equivalent of two full-time jobs" and whose head is filled with the important information of state has a reputation as a brilliant but forgetful man, so it is entirely conceivable that he simply forgot the truth when he testified both to the grand jury and gave an interview to an FBI agent. I can accept the idea that Scooter -- far busier than I am with a far more demanding job than I have -- might not remember all of the details of a particular event that took place weeks or months previously. Heck, I often forget things that happened two minutes ago on the way from the kitchen into the bathroom. But in order for me to believe that Scooter's brain is so full of something that the something pushed out the memory of who outed Valerie Plame, I think that I would need to know what else was in his head, and the defense certainly tried to offer evidence of that.

Imagine how your typical judge would deal with the issue of a blue-collar defendant seeking to put his friends and family on the stand to testify about how busy and distracted the defendant was at the time that he allegedly formed the conspiracy/bought gun/entered the convenience store. If your answer was, "inadmissible", then you win.


Sobek said...

Your comparison doesn't work very well. You're right that no judge will allow evidence that the Defendant was too distracted to realize what he was doing when he walked into the bank and pointed a gun at a teller. It's simply nonsense.

But Libby isn't accused of doing something like that. He isn't even accused of leaking Plame's identity (which was never a crime, because she was never a covert agent). He is accused of making obstructing justice by making false or misleading statements during an investigation.

With a bank robbery, the memory of the defendant has nothing to do with the part where he pulled out a gun and pointed it at people, and the intent can be fairly inferred from the later action. In a case of intentionally making a false statement, the memory of the defendant has everything to do with whether he intended to mislead when he made the statement. Perhaps there is a fair inference of intent, but the inference is rebuttable by evidence to the contrary.

Craig J. Albert said...

You've missed the point. In all of the crimes, regardless of whether they're thought-crimes, speech-crimes or action-crimes, the trier of fact needs to infer intent. Pointing the gun is pretty strong evidence, indeed, but why does the defendant there not get the opportunity to present evidence of third parties to rebut that inference? Libby got to do that without testifying on his own, and your argument seems to be that, well, we're really talking about what was in Libby's mind as being the core issue in this speech-crime/thought-crime case, while in the bank robbery cse case it's an important issue, but not the core issue. But it's awfully hard for the bank robber to argue that it wasn't he who held the gun, so for him, intent might very well be the core issue on the defense. And what I point out is that there is a double-standard when it comes to how we allow white-collar defendants to defend as compared with how we allow blue-collar defendants to defend.

Sobek said...

"Pointing the gun is pretty strong evidence, indeed, but why does the defendant there not get the opportunity to present evidence of third parties to rebut that inference?"

Because the hypothetical evidence you proposed is such that no reasonable jury could possibly take it seriously. It's an effort to waste the court's time to put someone on the stand to testify "Joe pointed the gun but only because he was so distracted thinking about 'Prison Break' that he didn't realize he was committing a felony." If you get me a better piece of proffered evidence my conclusion might change.

"...there is a double-standard when it comes to how we allow white-collar defendants to defend as compared with how we allow blue-collar defendants to defend."

At least in part due to the usually very different natures of white and blue collar crime. Libby is accused of lying. That's a crime that occurs almost completely in one's head -- the Constanza defense, as it were. Same with the guy transferring money from one bank account to another -- did he mean to wire funds to himself, or was it an accident? Same with the exec who dumps his stock before 4th quarter sales are revealed to be lower than projected. What was his intent? The crime all hinges on what was in his head at the time. Sometimes people type the wrong number into the computer quite innocently. Sometimes people say one thing and realize it was false at a later date.

The guy who points a gun -- sure, you still need intent, but there's enough evidence from the action because people don't walk into a bank and point a gun unless they mean to commit robbery. Sure, it could happen I suppose -- maybe he was duped. Maybe he was coerced. Maybe he thought he was at a firing range instead of a bank. Maybe he thought the teller was a robber and he was trying to protect people. In any of those cases, I think evidence of intent is relevant and admissible. But memory lapse?

When you say "so for him, intent might very well be the core issue on the defense," if there's some plausible story to support the evidence, then sure, let it in. Just not for an implausible story, like "I was really busy working in the White House and forgot that I wasn't supposed to point a gun a bank tellers."

Craig J. Albert said...

What Sobek says merely proves my point. When he tries to distinguish these two cases by saying that the blue-collar defense shouldn't be permitted because "no reasonable jury could possibly take it seriously", he makes a prediction as to how evidence is going to play in the mind of the jury, and he makes a value judgment that says that certain types of evidence -- here, evidence of intent in a non-thought-crime -- isn't worthy of presentation to the jury at all. But to that I'd say, what's the harm? When you argue that "no reasonable jury would take it seriously", what you're really saying is that either you're afraid that the jury will take it seriously, contrary to your assertion, or that you haven't empaneled a reasonable jury, which is an indictment of the jury selection process, or that a "reasonable" jury is a jury that shares your values, rather than those of the defendant. If the jury won't take it seriously, then allow the defendant the latitude to present the non-cumulative evidence and then let the jury take a vote, reject it and convict him.

And, by the way, it's not a criminal defendant's job to tell a story; rather he has the right to poke holes in the prosecution story (or non-story) without telling a story of his own. We shouldn't be conditioning a defendant's right to present a defense on his weaving it together into a nice story.

Sobek said...

"But to that I'd say, what's the harm?"

It's a waste of the jury's time, for one thing.
For another, I agree with you that I'm making a value judgment about the jury that would take such a defense seriously. You seem to reject that value judgment out of hand, so let me come up with a more ridiculous hypo.

I'm accused of robbing a bank. There are fifteen eyewitnesses, my fingerprints on the gun, videotapes of me yelling "give me all your money or I'll shoot," and I'm apprehended by the cops while the robbery is in progress. During trial, I want to proffer evidence that I walked into the bank, was abducted by space aliens who replaced by body with a duplicate, the aliens committed the crime, and then replaced me after I was in police custody.

As before, I submit that no reasonable jury would take that story seriously. I see no social value in wasting a jury's time, the judge's time, the prosecutor's time, or everyone's money by allowing such testimony to go before the jury. In this case, the evidence is so far out that the prosecutor might not object (because he knows it will prejudice the jury against the lunatic who just gavev that testifimony under oath), but if he does object, and I'm the judge, I'd sustain it.

So I agree with your characterization of my view is that certain evidence is not worthy of submission to a jury. Incidentally, the FRE agrees with me, because it excludes hearsay, certain bad acts, cumulative evidence, etc. I'm making a simple relevance argument. Here, it's based on the fundamental differences between your typical white- and blue-collar crimes. I haven't seen anything in your post or comments that suggests you disagree that there are fundamental differences.

"And, by the way, it's not a criminal defendant's job to tell a story; rather he has the right to poke holes in the prosecution story..."

True, but what evidence is he allowed to marshall to poke those holes? If I understand your argument, you're saying "pretty much anything, no matter how far out." I'm saying, not if it has no probative value. Doesn't seem like such a controversial statement to me.

Craig J. Albert said...

For now I'm going to simply shrug my shoulders and point at Sobek, holding him up as an example of the kind of attitudinal bias that I was referring to in the first place. Thanks to Sobek for providing me with a living example. And I'm really delighted to see that there are still people like Sobek who are so sensitive to the needs of the folks who've been empaneled for juries that they'd prevent the defendant from presenting an hour's worth of testimony that probably isn't going to help him in order to allow the jury can get home in time for Wheel of Fortune.

Sobek said...

Condescension. That's some high-quality rebuttal.

May I assume, then, that you would allow a defendant to present evidence of alien abduction? Is there any theory so ridiculous that you wouldn't allow it in a court?

Craig J. Albert said...

Couple of answers, and then I'm going to let Sobek have his last word because he seems like the kind of person who can't live without having the last word.

First, it's not condescension. I not trying to persuade Sibek of anything, because that would be impossible. I'm holding Sobek up as an example of the point that I've made, which is that our legal establishment is comprised in large part of people who think that there's a substantive and qualitative difference between the blue-collar version of the "I forgot" defense and the white-collar version of the defense. The justifications for the difference get masked in labels like "it would be cumulative" or "it would waste the jury's time" or "no reasonable jury would believe it" (which really means "no jury comprised of people who think like me would believe it, so why even start down that road and risk that the jury might believe it"), when in fact there's little harm to allowing the jury to hear a bit of it. Most likely, the jury will not believe it, so there's a dual function served by admitting the evidence. First, the defendant is convicted anyway, thereby advancing society's goal of convicting the guilty. Second, the defendant realizes that his story -- no matter how bizarre or unlikely -- has been heard, so he can't complain that he hasn't gotten a fair hearing. Third, society sees that the defendant has gotten the second, and therefore is convinced that when their time comes, they'll get a fair hearing too. So it's important that the defense is heard, no matter how improbable the defense.

Second, yes, I'd give the defendant quite a bit of latitude in presenting a defense -- even the space aliens defense. But I would hope that the defendant's lawyer in that case is better prepared than Sobek, because the important issue in that case isn't "bad acts", "cumulative", "hearsay" or "relevance"; rather, it's a simple issue of notice of an alibi defense under R 12.1 of the Federal Rules of Criminal Procedure. (Sobek wants to play with the federal rules here, so that's where we'll play.) Now the defendant has a two obvious choices. First, he can present third-party alibi witnesses; those are the ones who saw the space aliens take the defendant and (perhaps) the ones who saw them bring him back. Second, he can take the stand on his own, which is of course fraught with problems; even Scooter think that his "bad memory defense" was worth subjecting himself to cross. (Scooter might have tried the "abducted by evil space aliens" defense, and put in documentary evidence of the day he signed on to work for the Cheney administration.) Then the prosecution goes to work on the witnesses, which ought to be quite a show.

At the end of the day, a witness is exactly what the word suggests: someone who testifies as to what he saw or heard or felt or smelled or tasted. He tells that to the jury, and the jury decides whether, based on that evidence and that of the other witnesses, whether the prosecutor has met its burden of proof. The odds are stacked so heavily in favor of the government that you ought to have a really good reason -- better than, "the jury wants to go home to watch Wheel of Fortune" before you tell the defendant that he can't bring forth certain evidence.

So, to sum up, first, thanks to Sobek for providing my living example. I have a sneaking suspicion that he'll provide us with many such examples in the months to come. Second, Sobek likes to have the last word, so I'll let him have it in response #9, which will end this thread.

Anonymous said...

“Presumed Guilty” The other side of the story from a “little guy” accused of big white collar crimes…I am currently under Federal indictment and awaiting a trial for allegedly committing white collar crimes I am not guilty of committing. I have never committed a crime of any type, paid my taxes, respected others and even law enforcement. I believed that overall our law enforcement agencies were honest and their agents honorable, I was so very wrong. I operated several small businesses that unfortunately failed to gain enough funding to realize their full potential. Many of my investors and clients were retirees...THEY LOST MONEY, and I have to take responsibility for someone else’s poor choices. Everyone's a Victim now, especially the elderly! I am very sorry that people lost money and would do anything within reason to change the past, but that's not going to happen! I wanted to give everyone my side of the story or at least a summary of it.

My life, marriage, and reputation have all been flushed down the toilet. I spent over $100,000 on paying for the best legal advice I could find, a prominent securities attorneys and I even had a full time corporate Attorney on staff plus he was a major shareholder and I STILL GOT INDICTED ANYWAY, AMAZING ISN’T IT? My disclosures were over the top and my agreements very detailed. In 2002, the State of California sued me and by default won an eight figured multi-million dollar judgment against me personally. I went Bankrupt, started drinking heavily, friends disappeared, I was the subject of multiple search warrants in march of 2003 which produced nothing that was not already on public file.

Mistakes were made by me, I took risks and they did not pay off. Are we going to prosecute everyone who dares take a risk? Entrepreneurs are the life blood of this mighty country! Guilt has been presumed since the beginning. "PRESUMED GUILTY" First with ridiculous civil judgments and penalties for untold millions and when no assets turned up after a few years, a criminal indictment is sought after and it's almost a word for word copy of the States Civil case, Imagine that?

The trial could take months because I have over 100 Witnesses I want to call and the A-USA will have that and more. Their case is very weak but will probably be effective, the prosecutor will simply parade dozens of seniors who will sob and point at me…Sounds like a fair trial with a jury of my peers, right?

"Presumed Guilty" Hand cuffed, booked, stripped, searched, finger-printed, kept in jail for two weeks, made bond-cannot have a glass of wine, was subject to drug testing with the lowest life crack heads in my area, every week, I have to report in each week, I have to have permission to leave the city I live in for any reason. I cannot work in any of the fields I have experience in or am licensed to work in. ALL THIS AND still no trial.


“Presumed Guilty”

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