Norm Pattis, the galloping ghost of the blawgosphere, questions why summary judgment, the stop-gap of wasteful civil action, isn’t available in criminal prosecutions. 

There are occasions in which the criminal justice system is misused. A complaining witness can bring what is essentially a civil complaint to prosecutors and huff and puff about how they’ve been defrauded. The prosecution swears out a warrant. The defendant is arrested and then what?

The catch here is in the details.  In New York State courts, the judge has the authority to inspect the grand jury minutes, and dismiss or reduce the indictment.  The power is there, though rarely exercised.  In federal court, there is no equivalent animal at all.  Once a defendant is indicted, the prosecution plays out to its conclusion, whether plea, trial or dismissal/deferred prosecution, as the government desires.  Coupled with Sol Wachtler’s oft-quoted observation that a prosecutor could indict a ham sandwich, and the criminal defendant finds himself in for the long haul, with all the cost, damage to reputation and ancillary harm that comes along for the ride.

In many instances, this may not seem to be much of a problem.  After all, if the defendant is accused of murdering someone or dealing drugs, then the issue may well need to be played out to its natural conclusion.  Not that there aren’t pervasive problems, but the allegations tend to be sufficient to go to the mats, and it’s then up to the court at trial to do its job.

But Norm properly points to a somewhat different arena, where conduct that could just as easily, and might well have ordinarily, been addressed in the civil arena ends up forming the basis for an indictment.  In white collar crime, this is pervasive, with claims of fraud or mundane regulatory violations are transmuted from everyday disputes between warring tribes into crimes. 

What isn’t seen is that claims such as this are a dime a dozen in civil actions, and then one gets plucked out of the middle and ends up the subject of a criminal prosecution.  As every white collar criminal defense lawyer has heard, “why me?”  We hear that everybody does it, it’s pervasive, everybody knows about it, and yet this one in a hundred (million?) time it moves from your basic civil suit over money into a criminal prosecution over freedom. 

Norm attributed this to the degree of huffing and puffing a complainant can muster, getting prosecutors to take on a case that would otherwise never find its way onto the federal agents’ agenda.  It’s often a matter of juice, when a complaining witness has some greater influence with somebody in government that enables him to catch a friendly ear and persuade the prosecutor that his nemesis is a public enemy.  Frequently, the goal of the complainant is to get the government to do its dirty work for it, to obtain the judgment (conviction) and recovery the damages (restitution) with a hand far heavier than the complainant could muster. 

These cases pose an entirely different issue for criminal prosecution, as there is such great overlap between the civil and criminal realms in white collar crime that it seems no more than sheer kismet that one ends up a defendant in a civil action rather than a criminal prosecution.  Neither is any more heinous than the other, and in many instances not heinous at all. 

In fact, what constitutes criminal fraud to a jury may be nothing more than standard hard bargaining to a seasoned industry executive.  Jurors may not know the game, but those who play it daily know it all too well.  Prosecutors likely don’t know the game either, but then it’s hard to know much when you come to the job with such narrow life experience.  The commonplace can appear outrageous when you’ve never seen it before.

The difference for these white collar defendants is that they play on a level field in civil proceedings, including being given as much faith by the judge as the plaintiff.  Ironically, judges don’t have nearly the disdain for civil defendants as they do for criminal, even when both are accused of engaging in the exact same conduct.  And of course, the civil defendant has the opportunity, after he’s obtained a wealth of discovery to which no criminal defendant in his wildest dreams would be entitled, can seek to put a quick stop to the proceedings if there’s nothing behind them.

So why shouldn’t this be available for the criminal defendant as well?  Not that it would be granted often.  It wouldn’t.  Not that it would likely be applicable in most instances.  It wouldn’t.  But when it would, when it should, why put the criminal defendant through the entire system, soup to nuts, with no stop gap when the prosecution is running on empty?

The experience of being the defendant in a criminal prosecution is punishment in itself.  It’s not just the destination, but the journey.  Regardless of the outcome, criminal defendants are compelled to endure the journey, whether they deserve to or not.  If there was summary judgment, a means of cutting short the trip, it would make the journey far too painless.  We can’t have that.