01 July 2009

A Defense Lawyer’s Role

For those defendants willing to take the risks of going to trial, an able defense lawyer can challenge even the extraordinary powers of the government. Barry Pollack represents individuals and corporations in criminal investigations and trials as a member of the Washington, D.C., law firm Miller Chevalier. This article appears in the July 2009 issue of eJournal USA, “Anatomy of a Jury Trial.”

By Barry Pollack

The United States criminal justice system affords the government extraordinary powers in the prosecution of criminal offenses while simultaneously imposing substantial burdens on the government’s ability to obtain a conviction. Both the power granted to the government and the limitations placed on it create a challenging role for criminal defense lawyers.

When criminal charges are brought, a defendant enjoys substantial procedural protections, including the right to the appointment of an attorney if the defendant cannot afford one. However, sentences, even for nonviolent first-time offenders, can be Draconian. Prosecutors have tremendous discretion to plea bargain cases, offering lesser charges with reduced sentences in return for an admission of guilt or the defendant’s assistance in the prosecution of others, or both. The combination of nearly boundless discretion to reduce charges and sentences and the lengthy prison sentences that attach to many charged offenses offers prosecutors tremendous negotiating leverage to resolve cases without testing factual allegations through the adversary system of a courtroom trial.

Two recent examples illustrate the disparity between those who accept a plea bargain and those who proceed to trial. The chief financial officer of telecommunications giant MCI/WorldCom implemented a massive accounting fraud at the company. He pled guilty and received a five-year sentence. The chief executive officer went to trial. He was convicted and sentenced to 25 years in prison. Similarly, the chief financial officer of the Houston, Texas, conglomerate Enron Corporation pled guilty to accounting fraud and received a six-year sentence. Another senior executive who proceeded to trial was convicted and was sentenced to 24 years in prison.

For those who do proceed to trial, the risks are high, but the potential reward is great. At trial, the government bears the burden of proving the defendant guilty to the unanimous satisfaction of 12 jurors. The defense has the right to compel the production of documents and physical evidence and to compel witnesses to appear. However, the defense often flies blind because witnesses need not speak to the defense in advance of trial and the government has only limited obligations to disclose evidence it has gathered. Further, each witness has a right not to incriminate himself and can decline to testify. Unlike the government, the defense cannot compel a witness to testify under a grant of immunity. Accordingly, the defense typically cannot prove innocence. Rather, the defense exposes weaknesses in the government’s case and attempts to sow doubt among the jurors.

A criminal defense attorney has both the right, and indeed the obligation, to marshal all possible facts and arguments on behalf of the defendant, with the limitation that defense counsel may not knowingly advance false testimony.

Challenging Government

In the U.S. federal court system, the conviction rate is approximately 90 percent. However, the government’s burdens at trial are substantial, particularly when opposed by skilled defense counsel with adequate resources to investigate the facts and bring legal challenges. For those who have the fortitude to test the government’s evidence through the adversary process, the reward can be an acquittal and vindication. The government, unaccustomed to having its evidence challenged, may find that its witnesses are not as firm or its evidence more susceptible to an interpretation consistent with innocence than it anticipated.

I have been a criminal defense lawyer for nearly 20 years. While there have been exceptions, in most of my cases the result was fair and the process admirable.

The prosecution of executives from Enron Corporation illustrates both the powers and limitations of the government. Allegations of widespread fraud at Enron quickly led to its public vilification as a company that falsified financial records and the public perception that its employees were wealthy manipulators who profited handsomely while individual investors were left suffering the consequences.

The U.S. Department of Justice poured extraordinary resources into the prosecution of alleged fraud at Enron. More than 100 people were named as alleged conspirators in the collapse of Enron, approximately 20 guilty pleas were taken, and about a dozen executives defended their cases at trial. The government’s record in the Enron cases that actually went to trial was mixed. Two people were acquitted of all charges, and a jury was unable to reach a verdict against several others. Some who were convicted obtained reversals on appeal. Ultimately, however, the government obtained the conviction of the two highest ranking officials at Enron.

My own client, a former Enron accountant with limited resources, could easily have pled guilty and likely would have served a fairly modest sentence. However, he firmly believed in his innocence. Despite the extraordinary resources of the government, the disdain with which the citizens of Houston (and members of the jury) held Enron, and the likelihood of many years in prison if convicted of even a single offense, my client chose to take on the U.S. government and force it to prove its case. I assisted him in challenging, through cross-examination, the government’s witnesses, many of whom had been promised they would not be prosecuted in return for their testimony. I also assisted in presenting his defense, including expert accounting testimony, and, most importantly, his own testimony.

At the end of the day, a jury of his peers unanimously found him not guilty of all charges. For those like my client in this case, who have the courage to accept the extraordinary risks that a criminal jury trial entails, the system can and does work, and work well.

Nathan Lankford, an associate at Miller Chevalier, assisted in preparation of this article.

The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.