Ralph Cioffi and Matthew Tannin, the managers of Bear Stearns’ hedge fund  High-Grade Structured Credit Strategies Fund which trafficked in subprime mortgages, were arrested yesterday in the Eastern District of New York.  The indictment disclosed Tannin’s ill-conceived email comment, “the entire subprime market is toast.”

This case is custom made for the WSJ Law Blog, so if you want to learn all the gritty details, check out the many posts with more to come, no doubt.  Slater’s got it covered like flies on a hedge fund. 

What was curious about yesterday’s “arrest” was that the feds chose not to allow Cioffi and Tannin to surrender, as they would have surely been happy to do, but instead decided to put on a show.  The pair were forced to do the dreaded “perp walk.”  Like common criminals.  

(Credit: Associated Press)

The AP photo at left shows Matthew Tannin cuffed and held firmly by two unnamed federal agents.  Were they grasping him so tightly to prevent his sudden escape, ripping his arms away from their manly hold and Tannin pulling a “Cool Hand Luke” with the secret cache of pepper stored in the inside pocket of his custom-made suit? 

Don’t be silly.  Tannin was suitably dressed to appear before the court for arraignment on his indictment.  Since he’s out of a job, he had no other good reason to put on a tie.  Normally, he would just be padding around the house in his $4,700 monogrammed robe, like anyone else.  He dressed for success in anticipation of an arraignment, and would have been just as happy (happier even?) to have shown the marshals the way.

The WSJ provides the explanation for this needless phenomenon:

“For a little insight, we checked in with William “Mitch” Mitchelson, a former AUSA and current white-collar defense lawyer at Alston & Bird in Atlanta. Mitchelson, back in March of 2006, helped write this comprehensive piece in the National Law Journal on the perp walk.

“In high profile cases, it lets the public know that law enforcement is taking action against a problem,” says Mitchelson. “It also encourages people with evidence to come forward.”

Which brings us to the point of this post:  When you do white collar defense, preparing the client for the first 24 hours of his new life of misery is critical. 

Tannin (who is represented by Susan Brune) shows some indication of a well-prepared defendant.  He’s appropriately dressed, suited yet conservative, for the cameras.  But the pic shows two problems.  First, the scowl on his face suggests that he’s an angry man.  It makes him look evil, clearly an image he would be better off avoiding.  This photo will appear over and over, and will be the image that people hold of him as this case progresses.  The facial expression should be benign. This requires a studied awareness and plenty of practice, since he’s not a happy camper in the photo and may well be in a bit of discomfort.  Cuffs will do that. 

Think of Tom DeLay’s mugshot as he was booked by the Harris County Sheriff.  This is possibly the finest example of a defendant using a bad situation to his advantage.  He should have asked for copies to distribute for his next election campaign, it was that good.  When you look at it later, there is absolutely no way you would think that this is a mugshot, denying Texas authorities their effort at humiliating him.  It was brilliant.

Speaking of cuffs, it is particularly difficult to wear them well.  Despite plenty of opportunity, handcuff makers have put shockingly little effort into increasing their comfort over the years.  When hands are cuffed behind the back, it tends to force a person’s shoulders to stiffen and cause a person to force them backward in order to relieve the pressure on the wrists.  This, in turn, causes the defendant to thrust his chest forward, making him look defiant and aggressive.  Again, not the look we’re going for.

While the discomfort of being cuffed is real, it’s far better to suffer a little wrist stress for the few minutes it takes to walk from the agents’ car to the courthouse door than to appear a hunted man, straining to break free.  There is little a defendant can do to control his image during the perp walk.  It’s designed that way, so the government can show the public what they’re getting for their law enforcement tax dollars.

Of course, there is also the wealth of details every defendant needs to know about being unceremoniously seized to be put on public display.  Prepare them for what to say, and what not to say, as they are interviewed.  Prepare him for the questions from the press, and how to smile and say nothing as the cameras click away and the screams of ugly words come flying.  Explain how he must keep his cool no matter what, and how only by happily relinquishing physical control over his person for 10 minutes can he maintain true control over his life.

Given the opportunity, defense counsel should always try to arrange for a voluntary surrender, both to expedite processing and to avoid the perp walk circus.  But it’s not in our control, and we frequently get burned even when a prosecutor promises to let us walk our client in with dignity.  So regardless of whether you believe that you’ve got it covered, prepare your client for what might come and save him from the shock and humiliation that will haunt him for a long time after the perp walk is over.

Bear in mind that regardless of whether the case results in a win, lose or draw, the image of the perp walk and mug shot are usually the ones that others remember, and the taint from bad images will linger long after the case is over.  You have one chance to get it right.

And for those of you who may not quite understand what this whole subprime mess is all about, here’s a reprise of the official explanation.