By Laura K. Gasiorowski, Esq.

My partner Robert Stahl and I recently met with a potential client who was served with a Grand Jury Subpoena and was concerned about the potential criminal investigation and charges. This client came to the meeting with a detailed list of questions for us, many of which concerned our background, experience, and approach to handling a federal criminal case. These questions prompted me to think about what is the most important qualifications for hiring the right lawyer when a client is facing potential prosecution by the federal government.

Facing criminal charges is one of the most serious and stressful experiences anyone can endure. Whether you’re under investigation or have already been charged, one of the most important decisions you will make is choosing the right attorney to represent you. The stakes are high — your freedom, reputation, and financial future are all on the line. When the criminal charges might be federal, it is even more important to make sure that you choose the right attorney to defend you. When it comes to defending against complex federal charges, especially white-collar crimes such as fraud, embezzlement, or insider trading, not all criminal defense lawyers are the same. Here’s what you should look for when hiring a white collar criminal defense attorney:

1. Federal Court Experience Matters: Federal cases are vastly different from state criminal cases. The criminal statutes are more complex, and the penalties more severe. Federal cases also differ from state cases in terms of procedures, judges, prosecutors, and the applicable Rules. Make sure your attorney regularly practices in federal court, particularly in the jurisdictions where your case is pending (e.g., the Southern District of New York, Eastern District of New York, or District of New Jersey). At Stahl Gasiorowski, our primary practice area is federal criminal defense, which includes white-collar criminal defense and corporate investigations, in the District of New Jersey, and in the Eastern and Southern Districts of New York. We can, and have, handled federal criminal cases in Pennsylvania, California, Massachusetts, Maryland, Alaska and West Virginia as well.

Ask: – How many federal cases have you handled in this district? – What types of federal charges have you defended?

1. Specialization in White Collar Crimes: These cases often involve complicated financial transactions, regulatory issues, and intricate investigations that often require the assistance of investigators, experts and e-discovery providers. Electronic discovery in federal white collar cases can be staggering… in the terabytes… and require significant resources, time and familiarity with review platforms. In addition, all federal criminal cases require a deep familiarity and experience with the Federal Sentencing Guidelines, which your attorney must understand in order to assess your potential sentencing exposure, as well as the complicated law regarding determination of forfeiture, restitution and losses for Guideline purposes. In many cases, there are also parallel civil investigations, by the SEC, FINRA or other entities. Your attorney should have a track record defending clients charged with white-collar offenses like wire fraud, securities fraud, tax fraud, or conspiracy and other violations of federal law.

Ask: – Have you defended clients in cases similar to mine? – Do you have experience dealing with federal prosecutors, agencies like the SEC or IRS, or parallel civil investigations?

1. Reputation and Credibility: Federal prosecutors respect experienced defense attorneys who have a proven reputation in the courtroom. Judges, too, take notice of skilled advocates with a history of effective, ethical representation. Familiarity with the prosecutors (AUSAs) in the United States Attorneys’ offices, with the Judges on the bench, and with the Pretrial Services and Probation Officers is an asset when negotiating a plea, seeking to reduce charges, obtaining release or more lenient release conditions, or obtaining services for your client.

Look for: – Recognition by legal organizations – positive client testimonials – peer endorsements from other attorneys

1. Strategic Approach to Early Intervention: The earlier your attorney can get involved in your case, the better the chances of limiting your exposure to charges or penalties. Look for a lawyer who emphasizes early intervention — engaging with prosecutors before charges are filed can sometimes prevent an indictment altogether.

Ask: – How would you approach early negotiations with the government in my case?

1. Trial Experience: You may be surprised to learn that the vast majority of federal criminal cases resolve with pleas, not trial. This is because such cases are more thoroughly investigated than state cases, with greater resources. In federal trials, there is a significant “trial penalty” that may result in a more severe sentence. Sometimes, the best attorney may not be the one with the most trials under their belt, because many white-collar defense attorneys are successful by avoiding charges altogether, or resolving cases short of a trial through plea or alternative dispositions. That said, while many cases resolve through negotiations, hopefully resulting in no charges, reduced charges and a favorable plea or other disposition, you need an attorney who is fully prepared to go to trial if necessary. A lawyer who isn’t afraid to take your case before a jury can often secure better plea deals or dismissals simply because the prosecution knows they’re facing a formidable opponent who is willing and able to go to trial if necessary.

Ask: – How many federal jury trials have you conducted? – What were the outcomes of those trials?

1. Personal Attention and Communication: Federal cases can drag on for months or even years. Choose an attorney who will provide personal attention, keep you informed at every stage, and answer your questions honestly. At Stahl Gasiorowski, we take on a limited number of clients and cases so that we can provide that personal attention and devote the time necessary to thoroughly investigate and prepare a defense. We are criminal defense attorneys first and foremost. As a small firm, we provide big firm expertise, and obtain big firm results, at a better price point, and without layers of administrative assistants and lower level associates. Our partners will be handling your case.

Ask: – Who will be handling my case day-to-day? – How often will I get updates?

Bottom Line: If you or your business is under federal investigation or facing white-collar criminal charges, choosing the right lawyer is your first line of defense. Don’t settle for general criminal defense — find an advocate with federal experience, a deep understanding of white-collar law and the sentencing guidelines, and a reputation for winning tough cases or achieving good results with alternatives to incarceration, favorable pleas or non-prosecution agreements.

If you’d like a confidential consultation to discuss your federal case, contact us today. We have extensive experience defending individuals and businesses in federal courts in New Jersey and New York, and we’re ready to fight for you.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under complex federal and state investigations with terabytes of discovery. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Ms. Gasiorowski at lkg@sgdefenselaw.com or Mr. Stahl at rgs@sgdefenselaw.com.

Federal agents and AUSAs serve subpoenas that demand the production of huge amounts of documents and data. They seek search warrants that authorize the seizure of every electronic device at the location to be searched – computers, servers, external hard drives and cell phones. They seize tens of thousands of emails, texts and other forms of communication from businesses and individuals. This common investigative tactic results in an exponential growth in seized data to be reviewed and turned over in discovery to the defense.

A few years ago, after several high profile cases exposed the Department of Justice’s failures in processing and timely disclosing seized data to the defense, the DOJ told U.S. Attorney’s Offices around the country to collect less evidence. In late 2022, a training program was implemented to teach more than 6000 federal prosecutors to be more selective in the evidence sought and seized. This was the so called “smart collection” approach.

This approach was developed because DOJ struggled to fund and find the software and personnel needed to store and analyze the volume of electronic evidence seized. In fiscal year 2023, DOJ requested $27 million for U.S. Attorneys’ offices “e-Litigation modernization”, including 52 new positions and technology upgrades. This was in addition to DOJ’s $1.5 billion e-discovery vendor services contract awarded in 2020 and set to expire in 2027.

Putting aside the government’s issues and budget, seizures of terabytes of data require an enormous expenditure of time and resources for the defense. Effective review of the data requires hosting a search platform that can search millions of pages for key words, names and dates in an expedient fashion. Outside vendor platforms can cost thousands of dollars a month just for the platform. Add to that the time spent by paralegals and associates conducting the actual searches and initial review of the documents, and then the further review by the attorney handling the case. One can quickly see that only well-funded clients, or ones with some type of insurance or corporate backing, can afford zealous representation.

The costs for the review of massive amounts of documents and other data, coupled with potentially much lengthier prison sentences post-trial rather than a negotiated plea, account for the 95-97% rate of pleas in the federal system. Few individuals can afford the costs of a trial – legal and discovery fees, expert witness fees and the so-called “trial penalty” (harsher sentences after a loss at trial).

DOJ must do better at seizing and turning over data that falls within the confines of the items authorized to be seized in the warrant, and limiting the scope of the documents sought in grand jury subpoenas. Courts must enforce discovery obligations on the government and compel the government to produce the discovery in a timely and organized fashion that permits defendants to be properly and zealously represented, including those defendants that cannot afford costly search platforms.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under complex federal and state investigations with terabytes of discovery. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rgs@stahlegasiorowski.com Ms. Gasiorowski at lkg@stahlegasiorowski.com.

Cryptocurrency has been at the forefront of debate between various law enforcement and regulatory efforts to impose stricter controls and regulations and those who view it as a form of currency that should not be closely regulated. Within the past two weeks, both the SEC and the Treasury Department have defended their enforcement actions and requested additional tools to combat cryptocurrency fraud and misuse.

The SEC again defended its authority to regulate crypto, despite critics claiming that cryptocurrency is a commodity not an SEC regulated security. At the SEC Speaks in 2024 event, Enforcement Chief Gurbir Grewal maintained that the SEC’s enforcement actions have been consistent and principled, tied to federal securities laws and court precedents. The SEC’s position is that if a crypto asset was offered and sold as an investment contract, it’s a security under the Howey test. The SEC rejects the argument that crypto products are currencies and beyond the reach of SEC regulation. To date, various courts have upheld the SEC’s position.

The Treasury Department has once again called on Congress for additional tools to combat cryptocurrency use by terrorist organizations who circumvent restrictions and embargoes to gain access to funds. One of the recent requests was to introduce secondary sanctions that would allow the Treasury Department to target digital asset providers, even extraterritorially. Included in the various requests was extra funding for the Office of Foreign Assets Control.

A number of Senators support strong anti-money laundering restrictions on cryptocurrency. Many in the crypto sector do not comply with know your customer, documentation of account holders, source of assets and other anti-money laundering measures. Other Senators want only a “light regulatory system” that imposes restrictions on centralized retail crypto exchanges to bring crypto out of the “Wild West”.

Clearly, cryptocurrencies will continue to be subject to increasing regulations and enforcement as Congress and regulatory agencies understand the nuances and complexities of ever developing and expanding platforms.

Stahl Gasiorowski Criminal Defense Attorneys are experienced in defending individuals charged with various crypto related offenses, including wire fraud, money laundering, unregistered currency exchange and securities fraud. To contact us call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com or Laura K. Gasiorowski at lkg@sgdefenselaw.com

A recent high profile case highlights the federal government’s ability to seize a convicted defendant’s accounts to satisfy an Order of Restitution after a conviction at trial or a guilty plea. The Second Circuit recently held that the retirement funds of Evan Greebel, the former convicted attorney and Martin Shkreli’s codefendant, could be seized in partial satisfaction of the restitution amount owed. Greebel was convicted in a separate 2017 trial for assisting his client Shkreli’s fraudulent taking of funds from Retrophin to pay Shkreli’s hedge fund debts, and for manipulating the stock price of Shkreli’s drug company. After conviction, Greebel was sentenced to 18 months in prison and ordered to pay $10.4 million in restitution.

In its opinion, the Second Circuit upheld the trial court’s decision that Greebel’s 401(k) accounts at his former law firm were subject to garnishment in an effort to collect the restitution amount. The Second Circuit held that the Mandatory Victims Restitution Act (MVRA) gives the government full access to retirement funds, and that ERISA’s prohibition on disbursing retirement funds to third parties is trumped by the MVRA.

It is well-established that under 18 U.S.C. § 3664(m)(1)(A), the Government may enforce a restitution order in the manner provided by subchapter B of Chapter 229, or 18 U.S.C. § 3613. An order of restitution may be executed in accordance with the practices and procedures for the enforcement of a civil judgment under federal law or state law or by all other available and reasonable means. 18 U.S.C. § 3613 (a) and (f).

The MVRA broadly permits the United States to enforce a restitution order “against all property or rights to property of the person fined.” Pursuant to §3613(c), once restitution is ordered, all the defendant’s property becomes subject to a lien in favor of the United States, and for purposes of debt collection, such lien is treated like a tax lien. §3613(c). Thus, any property the IRS can reach to satisfy a tax lien, a sentencing court can also reach in a restitution order – bank accounts, retirement funds, stock accounts and even Social Security benefits. Additionally, while periodic payments (usually monthly payments through the Probation Department) in satisfaction of a restitution order are limited to 25% of the defendant’s disposable income, one time lump sums payments, such as the garnishment of a retirement or bank account, are not limited.

The only issue left unanswered by the Second Circuit in Greebel was whether the government could seize all the funds, or whether it had to leave the defendant sufficient funds to pay the 10% tax penalty for early withdrawal of retirement funds. In many instances, the amount left to a defendant to pay tax penalties and taxes on garnishment of retirement accounts can be negotiated with the government.

Stahl Gasiorowski Criminal Defense Attorneys have represented scores of clients facing restitution and forfeiture orders and garnishments. We actively and aggressively protect clients’ rights. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.

The Department of Justice just announced charges against 21 individuals in a nationwide crackdown of COVID-19 related prosecutions that resulted in $150 million worth of fraud. The schemes were varied and involved medical doctors, medical labs, marketers and others in the healthcare field.

For instance, two owners of a lab in California allegedly billed more than $125 million in fraudulent claims. In Maryland and New York drive through test site operators are accused of using confidential patient information to bill for lengthy office visits that never occurred. In New Jersey, five individuals were accused of paying or receiving kickbacks for referring COVID tests to a particular lab. Even though the tests were medically necessary, and the lab only billed the allowable rate to the government program, the lab was accused of violating the anti-kickback statute that prohibits paying individuals or companies to refer tests.

The Maryland case charged a physician with submitting false claims to Medicare and private insurers. The defendant owned drive through COVID testing sites. Employees gathered patient information at the sites and later submitted false claims for complex in office visits for other healthcare procedures that never occurred.

In Florida, a registered nurse was charged with signing huge numbers of medically unnecessary doctor’s orders in exchange for sham telemedicine consulting fees. Another case in Florida charged individuals with fraudulent Medicare billing for medical equipment that was obtained by paying kickbacks to marketing companies that solicited patients for equipment they didn’t need.

In other schemes, defendants in California were charged with allegedly counterfeiting vaccine cards. Another case involved a hospital pharmacy director who obtained authentic Moderna dose lot numbers and used them to falsify vaccine ecards.

In New Jersey, one of the District’s first healthcare fraud trials just resulted in a guilty verdict against a medical sales representative of a diagnostic lab who paid kickbacks to a physician for referring tests to the lab. In an effort to disguise the kickbacks, the marketer placed the physician’s medical assistant on the lab’s payroll. In a related scheme, the marketer was paid for promoting medically unnecessary compound medicines that certain insurance plans covered. The defendant and others paid kickbacks to doctors to prescribe the unnecessary compounds without even examining the patients.

Other cases have charged individuals with fraudulently obtaining relief funds from the Coronavirus Aid, Relief and Economic Security Act. A 2020 bill that provided billion in emergency financial assistance.

These and scores of other cases highlight federal authorities continuing investigations and DOJ’s aggressive prosecution of a variety of healthcare fraud schemes. These schemes involve medically unnecessary compound medicines, genetic cancer tests, kickbacks on prescriptions for DME – durable medical equipment – such as braces, as well as COVID-19 tests.

Federal healthcare laws and regulations are complex. There are countless ways for doctors, pharmacists, lab owners and marketers to violate these laws. Stahl Gasiorowski Criminal Defense Lawyers have extensive experience representing individuals and corporations accused of healthcare fraud. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rgs@sgdefenselaw.com.

When someone pleads guilty or is convicted of a federal or state crime, there are serious collateral consequences, in addition to potential jail time, forfeiture, restitution and other fines and penalties. The term ‘‘collateral consequence’’ means a collateral sanction or a disqualification, a penalty, disability, or disadvantage that is imposed by law as a result of an individual’s conviction for a felony, misdemeanor, or other offense, but not as part of the judgment of the court. Collateral consequences are legal and regulatory restrictions that limit or prohibit people convicted of crimes from:

• Accessing employment
• Business and occupational licensing
• Housing
• Voting
• Possession of firearms and hunting licenses
• Education
• Military service

A federal conviction results in the loss of the right to:

• Vote,
• Possess firearms,
• Sit on a jury
• and may result in travel bans from many countries.

Depending on the type of crime, the person’s professional license may be suspended, or the person may be banned or debarred from certain federal programs for a period of years.

There are more than 45,000 state and local laws and regulations that have profound ramifications for those with criminal records. Roughly 600,000 people leave prisons every year hoping that their punishment has ended, only to encounter a combination of laws, rules, and biases forming barriers that block them from jobs, housing, and fundamental participation in our political, economic, and cultural life. These collateral consequences illustrate the excessively retributive nature of our criminal justice system.

Currently, 30 states disenfranchise at least some people based on past conviction. Some collateral consequences serve a legitimate public safety or regulatory function, such as keeping firearms out of the hands of people convicted of violent offenses, prohibiting people convicted of assault or physical abuse from working with children or the elderly, or barring people convicted of fraud from positions of public trust. Others are directly related to a particular crime, such as registration requirements for sex offenders or driver’s license restrictions for people convicted of serious traffic offenses. But some collateral consequences apply without regard to the relationship between the crime and opportunity being restricted, such as the revocation of a business license after conviction of any felony.

These consequences create social and economic barriers for individuals reentering society by denying or restricting benefits otherwise available to all Americans. Collateral consequences can also adversely affect adoptions, housing, welfare, immigration, employment, professional licensure, property rights, mobility, and other opportunities. The effects of such restrictions often increase recidivism and undermines meaningful reentry.

Despite these sweeping adverse consequences, defendants are generally not entitled, as a matter of due process, to be warned of these consequences, either before accepting a plea or upon conviction. Although the U.S. Supreme Court has required consideration of certain immigration effects of a criminal conviction, the Court left open what other disenfranchisements might rise to the level requiring constitutional protection.

The attorneys at Stahl Gasiorowski Criminal Defense advise all of our clients of the potential collateral consequences of their plea or conviction. We routinely represent licensed professionals that may face parallel administrative actions or hearings seeking to suspend their license based upon the criminal investigation or charges

Stahl Gasiorowski Criminal Defense Lawyers have extensive experience in serious federal and state criminal cases. The founder of the firm, Robert Stahl, is a Certified Criminal Trial Attorney by the Supreme Court of New Jersey, a Fellow of the American College of Trial Lawyers and a former Assistant U.S. Attorney who tried some of the largest fraud and tax cases in the District of New Jersey. He has been aggressively defending serious cases in federal and state courts for more than 25 years.

“These are people with brain damage, they’re f–king retarded, they’re on the goddamn spectrum. But they’re our brothers, our sisters, our neighbors, our coworkers — they’re part of our country. These aren’t bad people, they don’t have prior criminal history. Fuck, they were subjected to four-plus years of goddamn propaganda the likes of which the world has not seen since fucking Hitler.”

So spoke Albert Watkins, attorney for multiple defendants charged in connection with the January 6, 2021 attack on Congress and the Capital building. As a result of these inflammatory and crude comments, Mr. Watkins is again the center of media attention and the attorney for Christopher Kuehne, who was charged along with Watkins’ clients Felicia and Cory Konold and three other individuals, has moved to sever his case.

Watkins hasn’t retracted or modified his statements or issued a mea culpa. Instead, speaking to Law&Crime.com, he posited that his “less than politically correct” description of the people storming the Capitol that day was part of a calculated strategy to call attention to his “longstanding pleas for compassion and understanding of those…with mental health issues and disabilities.”

However, referring to someone who may have been diagnosed with a mental disease or developmental disorder as having “brain damage”, being “f–king retarded” or on the “goddam spectrum” lacks compassion and understanding, and denigrates the experience and lives of people on the spectrum and struggling with cognitive, behavioral, or psychological problems or deficits. For those of us familiar with such issues, in family, friends, or our client population, his remarks are painful, punishing, and self-defeating.

An individual’s struggle with mental health problems, intellectual disabilities or developmental disorders like Autism Spectrum Disorder may in fact impact judgment, behavior and decision making, and thus constitute important mitigation evidence that would warrant a more favorable plea or a lesser sentence. As an attorney with a background in mitigation, I have used such information in very positive ways to mitigate a client’s culpability, either in plea negotiations to lessen charges, or in sentencing. However, Mr. Watkins’ media ploy seemed less an effort to help his clients and more a decision to insert himself in the spotlight. If the former really were his intention, one must question his judgment in thinking that he would invoke either compassion or understanding by describing people on the Autism spectrum, suffering from cognitive or intellectual disabilities, or living with mental health conditions in the negative, hurtful and dehumanizing way in which he did.

Stahl Gasiorowski Criminal Defense is here for all your criminal legal needs. Stahl Gasiorowski Criminal Defense is here for all your criminal legal needs. We are committed to treating all our clients with respect, while vigorously advocating on their behalf. Please feel free to contact the firm’s NJ office at 908.301.9001, or the firm’s NYC office at 212.755.3300, or email Mr. Stahl at rgs@sgdefenselaw.com.

Anyone facing a federal sentencing knows how difficult and daunting the U.S. Sentencing Guidelines can be for many types of crimes. For financial crimes, the amount of loss, number of victims, complexity of the scheme and the like can quickly ratchet someone with no prior offenses into the 10+ year range. With a system that does not allow for early release on parole, like most states, and that credits a defendant with only 54 days a year good time credit, sentencing in the federal system can be particularly harsh.

The Sentencing Guidelines, created in an effort to have greater uniformity in sentencing for similar crimes, have been advisory rather than mandatory since 2005. A report by the U.S. Sentencing Commission reviewing 150,000 sentences in drug; illegal reentry; fraud; and “other” cases by federal judges in 30 major cities revealed the prevalence of sentencing disparities.

The results illustrate several important facts. First, there are wide differences in sentences imposed by judges within the same city; the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to the case. Second, most judges across the country on average gave below the low end of the recommended guideline range. Third, sentences typically vary more from the advisory guideline range as the sentencing ranges get higher. For example, in economic crimes, where the advisory range exceeds 60 months (5 years) based upon the amount of loss, the majority of sentences go farther below the advisory range.

Given the above statistical analysis, what can experienced federal criminal defense attorneys do to maximize the benefit his or her client receives at sentencing? A number of federal judges recently spoke at the ABA Conference in New Orleans for the White-Collar Bar meeting. The judges emphasized three important factors they consider at sentencing:

One, a detailed sentencing memo from the defense that clearly and succinctly addresses the individual sentencing factors that warrant consideration for a below guideline sentence. Those factors usually include the defendant’s personal background and prior good deeds that distinguish him from other similarly situated defendants. Considerations typically include the defendant’s involvement in the community, church and charitable organizations prior to the charged offense; physical or mental health needs or treatment; and post-offense conduct that reflects a commitment to leading a law-abiding, respectful life.

Two, the defendant’s future plans to maintain a law-abiding life, including whether he has the support of his family, friends, and/or employer.

Third, what the defendant says at the sentencing. Many judges indicated this was critical in determining an appropriate sentence. Specifically, the judges wanted to hear the defendant accepting full responsibility for his actions, speaking with them sincerely and candidly without reading from a script.

In deciding the best course of action, it is always important to remember that the court wants to know why they should take a chance on a particular defendant and sentence them below the guideline range.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

After more than two years of careful research and deliberation, the National Association of Criminal Defense Lawyers (NACDL) released The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The “trial penalty” refers to the substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a conviction at trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. The report notes that to avoid the trial penalty, defendants must surrender fundamental rights which are essential to a fair justice system. The release of this report has garnered support from leading criminal justice reform entities, all of which agree that the incursion on the right to a trial poses a clear threat to justice.

The data revealed that after a 50-year decline, fewer than 3% of federal criminal cases result in a trial. That means that more than 97% of federal criminal cases were resolved by guilty pleas. In a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system seems self-evident.

The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. Mandatory minimum sentencing provisions have played an important role in reducing the trial rate from more than 20% thirty years ago to 3% today. Instead of using these mandatory sentencing laws for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who exercised their right to trial. The Sentencing Guidelines also contribute to this lopsided result, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not. Finally, the report found that federal judges are complicit as well. In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big. The same judges who will go along with a plea bargain that undercuts a severe Guidelines range are too reticent to stray from the sentencing range after trial.

The report concludes that these excessive trial penalties, undermine the integrity of our criminal justice system. Forcing the government to its proof in a trial is a constitutional right guaranteed under the Sixth Amendment. The “innocence problem”, is the fact that prosecutors have become so empowered to enlarge the delta between the sentencing outcome if the defendant pleads guilty versus the outcome if he goes to trial and loses, that even innocent defendants now plead guilty. A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy its’ burden of proof beyond a reasonable doubt, whether the person is guilty or innocent.

Misconduct and mistakes by law enforcement, witnesses and prosecutors are only revealed through an open and public trial. When the trial process is subverted and limited to only a few select cases, mistakes and misconduct go undetected and result in innocent lives spending years incarcerated. Moreover, when misconduct goes undetected, it flourishes and expands. There are many recent examples of police detectives in various jurisdictions planting evidence, using the same corrupt informant to identify alleged homicide suspects, and other miscarriages of justice.

Robert Stahl, and his firm, Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.