How Cooperation Agreements Make a Mockery of the Right to Trial by Jury

This is from Ellen Podger at law.com:

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.

...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.

...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.

The government doesn’t bear the cost of its own screwups. The prosecution had no incentive to be right back then and now they have even less of one now since it would be suicide for any company to risk trial. It’s the Spitzer play book, make wild accusations of wrong doing, leak documents to the press, and threaten prosecution to force a deal and claim victory.

We covered this with Enron here: http://nastybrutishandtall.com/2006/10/skillings-show-trial-has-predictable.html