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Tuesday, September 27, 2011

Under Investigation: What Do I Do Now?

In an article in today's New York Times on the practice of prosecutors undercharging defendants but threatening to charge additional crimes in order to induce (or coerce) a defendant to agree to a guilty plea to the original charged crime, one alarming statistic jumps out: Of all the federal criminal cases in federal district courts across the country, only about one percent result in acquittals. Nearly 90% of cases result in convictions through guilty pleas (even to only one of several charges, or to lesser charges upon plea bargaining and what is called fact bargaining) and the rest are convictions at trial.  About eight percent of cases are dismissed, but this number does not a significant number of investigated cases which never lead to any charges being filed.

Extrapolating the above data, the one percent of cases which result in acquittal at trial (and are not dismissed cases prior to trial) come from the approximately three percent of cases which do go to trial.  This suggests that going to trial is far from a slam dunk for the government, and that a good case in which the facts suggest reasonable doubt may end up with a defendant being found not guilty. 

Criminal defendants who honestly believe in their innocence should hesitate to be intimidated into pleading guilty to something they did not do, and should consider retaining someone (like myself) to help them with developing the mental toughness and training necessary to withstand the intimidation of a criminal investigation and trial.

The data above also mean that the best time to seek exoneration for someone who is under investigation is prior to the criminal indictment. This is most true in the world of "white collar" or non-violent crimes such as those involving financial misconduct, fraud, perjury, obstruction of justice, tax evasion and similar tax crimes, and other violations of regulatory agency rules which have been criminalized.

The downside is that the government controls the process, access to evidence including -- critically -- to exculpatory evidence that tends to negate the (assumed) guilt of the accused, and can use its resources to investigate and intimidate.

These facts make it critical that anyone potentially under government investigation hire lawyers and investigative lawyers who can understand potentially complex situations, complex legal theories of culpability, and analyze an incomplete set of facts and evidence to make educated guesses as to what probably happened or exists. The latter point is crucial when federal evidentiary rules require the government to turn over exculpatory evidence -- that is, as determined first by the government -- only months if not weeks before the trial. By this time, of course, one has already been charged, lost his or her reputation and often lost his or her employment. 

The lesson: If you are innocent, don't let yourself get pushed around.

I would welcome inquiries from anyone who needs, or knows someone who needs, advice or assistance in these situations.

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