Last week the FCPA Blog published a provocative post, “Lori Loughlin: How ‘clearing her name’ could ruin her life.” While I’m sure it was a difficult post to write, it was an equally uncomfortable post for me to read.
The discussion about Ms. Loughlin’s right to a trial, the presumption of innocence, and the prosecutorial statistics about her chances of success was the easy part. The hard part was about a defendant’s decision whether to go to trial or not — a crossroad filled with life-changing complications and conflicting emotions.
A criminal defendant might risk trial simply because the government’s evidence is faulty. Perhaps it was wrongly obtained or could otherwise be inadmissible. Testing the government’s evidence can sometimes result in dismissal before the start of the actual trial or in an acquittal by a judge or jury after the trial. But I never made it that far in my decision making, nor did I consider those options.
In April 2007, Billy Jacobson (at the time, Assistant Chief of FCPA Enforcement at the DOJ) called my lawyer, stating that I was the target of a criminal investigation for violating the FCPA. It was time, my lawyer told me, to seriously consider whether to start cooperating with the DOJ or begin preparing for trial.
I responded, “I’m going in.” And with that response, my cooperation had begun even before our first meeting with the DOJ a few months later.
For me, that call from Billy Jacobson was my “line in the sand,” as a DOJ prosecutor later described it to Judge Leon at my sentencing. From that day on I was prepared to admit my guilt and make peace with my past, while praying for a different future.
I didn’t cooperate and plead guilty because I was coerced. (Judges, by the way, are very careful to make sure defendants aren’t pressured by anyone to plead guilty or otherwise give up their rights.) I wasn’t even thinking about the odds of losing a jury trial and risking a long sentence. What guided me was the emotional impact of apologizing, showing remorse, and embarking upon a lifetime of seeking forgiveness, all as described in the Handbook of Forgiveness that’s referred to in the earlier post about Lori Loughlin. I wanted what all of those elements ultimately bring together — reconciliation and peace, with oneself, with friends and loved ones, and with society at large.
I was facing decades in prison in two countries. After I cooperated, Judge Leon decided that eighteen months, of which I served fourteen and a half months, was a fair and just sentence. Judge Leon could have followed the DOJ’s recommendation (under the 5k.1 process) to give me a non-custodial sentence, but didn’t. After my sentencing, one of the FBI case managers turned to me and said, “Well, it might not mean anything to you now, but going to prison means that no one can ever say you avoided justice.” And he was right, both from a criminal justice perspective and a restorative one.
But I also know that not everyone is going to forgive me. I am sure that some of my former colleagues remain bitter. A relationship with one of my children is still fractured due to my own selfishness and poor decisions.
After her sentencing, Felicity Huffman said: “My hope now is that my family, my friends and my community will forgive me for my actions.” Some will, some won’t. Some will move from hurt and bitterness to forgiveness over time. As the FCPA Blog said about Ms. Huffman, “She feels terrible shame about what she did, just like we would.” That”s right.
Last week I talked to a leadership team from a medical device company. I had a tough time making it through one question about how my behavior impacted relationships with my children. The profound pain I inflicted on others and on myself never goes completely away. But facing justice — criminal and restorative — can help bring an eventual peace from a self-inflicted disaster that was more frightening than I can even describe.
What would I say today to Lori Loughlin? I’m not sure. If she believes in her own innocence, how could one possibly argue for her to admit to a crime? But if she only wants to test the government’s evidence, or present a novel defense theory, or bring a string of evidentiary motions that might actually win her case “on a technicality” or even through a jury acquittal, she might in fact achieve criminal-justice satisfaction but live a life of never ending emotional turmoil.