The FCPA Blog has written often about why FCPA defendants face nearly overwhelming odds when they go to trial. Reasons mentioned are that juries hate bribery, there’s always plenty of evidence, the government can stack the charges, and so on.
With the odds already stacked in the government’s favor, why, many are asking, would the Lindsey prosecutors cheat?
The government is always a ‘repeat player’ in the U.S. court system, and that gives it an enormous advantage against FCPA defendants, who are usually ‘one-shotters.’
Those terms were coined in the early 1970s by Professor Marc Galanter. He wrote a seminal paper (available on his website) called “Why the ‘Haves’ Come Out Ahead: Speculation on the Limits of Legal Change.” It examined the implications of wealth, experience, and status as it relates to the outcome of legal proceedings within the American court system. The article has remained one of the most thought-provoking examinations of the contemporary court system.
Galanter noted that the basic ideology of equality through representation within the court system is flawed. While having legal representation for both involved parties may present the appearance of equality, which is a necessary basis for finding the truth, the repeat players can greatly influence the actual balance of equality through the representation that they obtain. In line with Galanter’s basic hypothesis, the repeat players can therefore create an atmosphere within the court system that is more inclined to pursue their own interests as opposed to the truth.
The realities of a repeat player’s status can greatly affect the equality, and therefore the outcome of any court proceedings within the adversarial system. Thus, the question naturally arises regarding the equality, fairness, and actual degree of truth-seeking that can exist in a court system where the most dominant player is the government itself. Perhaps the most crucial element to the Constitution of the United States is protecting the rights of the people from the potentially tyrannical power of the government.
As Judge Matz said, most prosecutors work with professionalism, integrity and fairness. But for reasons known only to the prosecutors involved in the Lindsey case, the potentially tyrannical power of the government — the ultimate insider of our court system — was on display.
In the realm of FCPA enforcement and beyond, the Lindsey prosecution showed why the Constitutional protections are needed.
Joe Cassin is a law enforcement officer in Texas. He can be contacted via the FCPA Blog here.