1 novembre, 2006 18:20

If there is one word that marks the federal criminal justice system of today, it is "cooperation." Regardless of whether it involves an individual or a corporation, cooperation with the Department of Justice produces incredible benefits.

You need only look at former WorldCom CFO Scott Sullivan receiving five years as part of a plea agreement, and compare it to the sentence given to Bernie Ebbers, who risked a trial and incurred a sentence five times greater. Or Jamie Olis, a former midlevel employee at Dynegy, who, after trial, initially received a sentence of 24 years. Even when the 5th Circuit modified the sentence, the six years post-trial was a far cry from the month received by his co-worker, who pleaded guilty and cooperated with the government. The contrast is even greater to the situation of his boss, who allowed the illegal activities to occur but received only an 18-month sentence.

And just recently, former Enron CEO Jeffrey Skilling received a prison sentence of more than 24 years after trial, compared to the six years that former Enron Chief Financial Officer Andrew Fastow received after entering a guilty plea and agreeing to cooperate with authorities.

The benefits of cooperation are not exclusive to the sentencing of individuals. Companies are quick to accept an agreement to avoid the ramifications of a trial. The demise of Arthur Andersen demonstrated the high cost incurred when challenging a government prosecution. The Supreme Court's reversal of the conviction didn't help resuscitate the company -- serving instead as a mere postscript on Andersen's tombstone. The government's ability to destroy a company, irrespective of legal accuracy, sent reverberations through the business world, resulting in companies across the United States entering into deferred prosecution agreements with the Department of Justice to avoid an Andersen-like destruction.

As part of a deferred prosecution agreement, companies may pay huge sums of money to the government, waive their attorney-client privilege and, in some cases, allow the government to monitor their internal affairs. A company's cooperation may even extend to allowing a U.S. Attorney to personally attend a special board meeting where a CEO is removed, as demonstrated by the case of Bristol-Myers.

Whether it be an individual or company, it is clear that those who play in the government's sandbox will be their friends and will reap enormous benefits through a sentence reduction or deferred prosecution. In contrast to the rewards received for cooperation, availing oneself of the constitutional right to trial by jury is an incredible gamble, with the stakes raised higher than ever before, as the sentencing guidelines provide for draconian sentences in white-collar cases.

Even when a person is fortunate enough to have a jury return a "not guilty" verdict, the government may come back with new charges. Just ask Richard Scrushy, the former CEO of HealthSouth, who received a not guilty verdict in his first trial, but got a guilty verdict when the government struck a second time.

The disparity in sentences between cooperators and those opting for a trial is a function of sentencing guidelines, which can dictate whether an accused receives what is essentially a life or death sentence. It is also a function of prosecutors who leverage the enormous consequence of a jury trial against a reasonable sentence for providing cooperation.

The government needs cooperators to make their cases. Cooperators also provide a more efficient system that reduces the costs for a government prosecution. But when the risk of a conviction after trial is so distinct from that received for cooperating with the government, it diminishes the right to a trial by jury, an essential part of our constitutional democracy.

Justice Byron White, in the famed case of Duncan v. Louisiana, 391 U.S. 145 (1968) noted the importance of this right when he stated that "the right to trial by jury is granted to criminal defendants in order to prevent oppression by the government." Id. at 155.

We have to wonder whether this right is fully realized when so many individual defendants and companies are folding to government demands because of the high risk entailed in proceeding to trial.