In today’s NY Times, Joe Nocera lambastes Bill Lerach’s lack of remorse and notes that his crimes weren’t victimless. To which I would add: given that Lerach’s Portfolio defense of his crimes demonstrates that he lied in his sentencing letter to the court and the allocution he made, and given that Lerach got a reduced sentence under the Guidelines for “acceptance of responsibility” because of those false representations, why isn’t the government looking to make a criminal contempt or perjury charge? (We’ll give John Keker the benefit of the doubt that he didn’t know what was in Lerach’s heart when he falsely told the court “Mr. Lerach has stepped up and accepted responsibility.”) Surely Judge John Walter doesn’t condone this sort of thing.
If the government doesn’t step up here, it’s further evidence that they got rolled in their plea negotiation with Lerach.
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I was an AUSA in that office, and practice criminal defense now.
The USAO almost never charges perjury or obstruction separately based on a defendant lying at trial or at sentencing. I suspect it’s a cultural thing, plus if I recall correctly you’ve got to get all sorts of DoJ approval to do it. I think it would be widely perceived as sour grapes by a party unsatisfied with the result, and an attempt at the second bite of the apple (to further abuse the fruit metaphor). I suspect most federal judges would not like it, as it appears to impinge on their power.
And by the way, for clarity, the guilty plea alone was sufficient to get the acceptance of responsibility adjustment. Any letter or statement of apology is just frosting (and an appeal to leniency within a guideline range, and post-Batson, to go below the guidelines). A judge certainly can refuse to give acceptance based on lies in such statements, but it is unlikely that the 9th Circuit would overturn a judge who declined to do so.
[…] Frank has some further thoughts on that point. And note (from Nocera) that Lerach’s “everyone did it” swipes at his colleagues […]