Selective Prosecution: Illegal or Just Unfair?

Posted on Jun 1, 2017 in Blog Entry: Criminal Cases, Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. So-called selective prosecution is only illegal if a defendant is singled out for a purpose that is itself wrongful, such as discrimination based on race, gender, or political or religious affiliation. Like claims of a prosecutor’s vendetta, allegations of selective prosecution may get some press play but are almost never heard by juries. Actually, there is nothing illegal about prosecutors being selective. Law enforcement has every right to allocate limited human and financial resources and pursue some but not all perpetrators. No matter how many people are traveling 72 mph in a 55-mph zone, the two who are pulled over have no right to complain about the hundreds who continued to speed on down the highway. Nor is there anything illegal about targeting high-profile wrongdoers. In fact, in the federal system, where only a small fraction of potential crimes are actually the subject of federal indictments, prioritizing high impact cases is the name of the game. From the prosecutor’s standpoint, a defendant loaded with publicity value creates plenty of free advertising for the message of law enforcement about crimes and punishment. Prosecuting Winona Ryder for shoplifting at Saks Fifth Avenue made a more potent warning to prospective thieves than the conviction of an unknown. Similarly, bringing tax evasion cases against actor Wesley Snipes and businesswoman Leona Helmsley was a powerful message to potential tax cheats. What makes selective prosecution illegal is an improper purpose. A prosecution mainly motivation by vindictiveness, if provable, would qualify. So would targeting particular political leaders or members of a racial or ethnic minority. But the last time the Supreme Court validated a selective prosecution defense was during the nineteenth century. In the famous case of Yick Wo v. Hopkins, the court found that a San Francisco ordinance imposing stricter requirements on laundries was only enforced if the operators happened to be Chinese. Unless a discriminatory effect as well as a discriminatory purpose can be proven, no claim will be sustained. Such selectivity could also be a constitutional violation if, say, a prosecutor targeted only defendants of a particular faith or political affiliation. In such instances, it is not the mere act of selecting some defendants rather than others. It is instead selecting them on grounds that violate their First Amendment or equal protection rights. Much of what is claimed to be discrimination results from efforts to target prominent people. Perhaps celebrities and politicians are indeed discriminated against in this sense, but such extra scrutiny is an occupational hazard. As long as neither political ideology nor demographics are the motivation, it is not illegal discrimination. It is the price of fame. For the latest news and updates for Kendall Coffey, be sure to follow him on...

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The Lars Larson Show: Director James Comey Fired: An Interview With U.S. Attorney Kendall Coffey – May 10th, 2017

Posted on May 26, 2017 in Media Appearance: Spinning the Law with Kendall Coffey

Kendall Coffey, one of the top rated business litigation attorneys in Miami, FL, made an appearance on the Lars Larson Show to offer his insight in the recent firing of FBI Director James Comey. Learn more about Mr. Coffey’s law background here: http://www.law.miami.edu/faculty/kendall-coffey Lars Larson: Welcome back to the Lars Larson show. It is Tuesday night, and the biggest news of the night is that the Director of the FBI of the United States has been fired from his job by President Donald Trump on the recommendation of the Attorney General and the Assistant Attorney General. I want to get a perspective on this and what this means, and whether or not it was the right thing to do. I think it was the right thing to do. I thought Comey should have been fired a long time ago, but it’s a pleasure to welcome back to the program former U.S. Attorney and prominent South Florida lawyer Kendall Coffey, who has worked with Democrats, and you are a Democrat. Mr. Coffey thank you very much. Listen, I think it’s fantastic, I don’t get that many Democrats on the program. Kendall Coffey: Well, I confess to the allegation. Thanks for having me on anyway. And it’s not a joyous occasion, in the sense that James Comey is a dedicated guy. I think he was a well-intentioned guy, and he served this country long and very well. On the other hand, you know, maybe the FBI needs a fresh start because the controversies continued, and he made, I think, a mistake that he never really got away from when he injected himself back in July of 2016 as the decider on the Hillary Clinton email investigation. He should have gone by the book. Once you sort of start writing a new book, it’s not in the existing law enforcement protocols. You know, all of a sudden you get into some crazy chapters, and of course we all know where it went from there. So I have to say, it may end up being the best thing. I know there are going to be all kinds of accusations about politics and [that] the president didn’t want investigat[ion into] Russia and stuff like that. I don’t think that’s it at all. I just think [it] became this accumulation of concerns and complications and, frankly, some mistakes, [and it’s] time for a fresh start. The critical thing is of course going to be who is selected next because it is one of the most important government positions outside of the United States Cabinet in the Supreme Court, in the country. So all eyes will be watching the president as he finds a replacement for James Comey. LL: Well, Mr. Coffey, I hope I didn’t put you off with the glee in my voice, but I want you to understand it this way. It’s the same kind of...

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Kendall Coffey on Fox News: What happens next after Comey ousting? – May 10th, 2017

Posted on May 17, 2017 in Media Appearance: Elections and Courts with Kendall Coffey

Kendall Coffey, one of the country’s top litigators presently working as a partner at Coffey Burlington in Miami, Florida, appeared on Fox News’ Fox & Friend to discuss the recent firing of FBI Director James Comey. For more from Mr. Coffey, follow him on Twitter. Abby Huntsman: Welcome back. FBI Director James Comey fired, and to no one’s surprise, the left immediately attacking the president. Jeffrey Toobin: This is the kind of thing that goes on in non-democracies. Chuck Schumer: I told the President, Mr. President, with all due respect, you are making a big mistake. AH: So what happens next? Here to weigh in is Kendall Coffey. He is a former U.S. attorney, under President Bill Clinton. Thank you so much for being with us this morning. Kendall Coffey: Thanks for including me. AH: So you’re an important voice to talk to, as this is all breaking, and there are so many important questions still left to answer.  But the biggest one is, what happens next, and how hard is it going to be to find that perfect replacement for him? KC: Well, they thought Comey was the perfect choice in the first place, so I think there’re going to be that much more careful this time. But the profile that you need at this point is someone with solid law enforcement credentials, obviously bi-partisan support to an extent, and some demonstrated independence. I think that person exists, and the most important thing about all of this, despite the present commotion, is getting somebody who the public respects and who will restore all credibility to the FBI. Martha McCallum: Well as for now, it’s Andrew McCabe, Deputy Director. He’s going to be filling in for a short time. Can you tell us a little more about him? He’s going to be next in line for a couple of days, so to speak. KC: Yeah, he’s a career guy, been there more than 20 years. A little bit of a controversy because his wife had been a Democratic legislative candidate a couple of years ago. But the important thing to remember is that this has never been the James Comey investigation, and it’s not now the Andrew McCabe investigation. This is an investigation by career FBI agents, their supervisors, prosecutors—including, by the way, the U.S. Attorney for the Eastern District of Virginia, who launched some subpoenas recently in the matter, and he was an Obama appointee. So there’s a lot of reason to trust this process going forward, but I think McCabe is going to get some extra looks because of his connection with the Democratic Party. AH: Well, you mentioned Democratic Party, Kendall. A lot of politics always involved with something like this. Democrats, though, they are telling Trump he should not have fired James Comey. But they were the ones calling foul for how [it took] long...

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Defense of Insanity: Overly Successful or Overrated?

Posted on Apr 7, 2017 in Blog Entry: Criminal Cases, Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. Even for defendants who are mentally ill, the legal defense of insanity is rarely successful – especially since the laws changed in the wake of the insanity-based acquittal of John Hinkley Jr., President Reagan’s attempted assassin. Insanity might seem like a really good idea, at least for a defendant caught red-handed in criminal activity. In everyday conversations people are quick to suggest that an otherwise guilty person can get off by claiming insanity or even temporary insanity. Such defendants are crazy, the public speculates, but crazy like a fox. The legal reality is galaxies apart from this popular wisdom. In criminal prosecutions, a plea of not guilty by reason of insanity is presented in 0.85 percent of cases, less than one in a hundred. Such strategies succeed no more than a fourth of the time. So the odds of an accused criminal beating the rap by wrapping himself in a straightjacket are roughly on in four hundred. Ironically, even individuals who are clearly mentally ill are not necessarily considered insane for legal purposes. Unless the affliction it’s an extremely narrow definition of what constitutes insanity for legal purposes, mental disease is no defense. Just consider the number of prison inmates who have serious mental disorders. This poses increasing problems for corrections officials who lack the resources to provide them with proper care. In the past, an insanity defense was more readily available. Things changed in 1981 with the attempted assassination of President Ronal Reagan and the subsequent trial of assailant John Hickley Jr. By any standard, Hinckley was mentally ill. Obsessed with movie star Jodie Foster, he thought killing President Reagan was a great way to get her attention But public uproar greeted his acquittal in 1982 by reason of insanity. Some 83 percent of Americans believed that justice was not done Neither the public nor the jury usually knows that an acquittal by reason of insanity is not much of a victory. Insane defendants, especially violent ones, spend many years in mental hospitals that are the equivalent of prisons. In fact, Hinkley would spend close to twenty-eight years in a mental facility before being allowed limited visits to his mother’s house. Some states do not even permit an insanity defense. The US Supreme Court determined in 2006 that Arizona did not violate the Constitution by preventing a defendant from presenting the defense of legal insanity. In That case, a young man, who believed that aliens were out to get him, killed a police office in Phoenix. No one accused the defendant of faking. His mental illness was undeniable. The Supreme Court found that the state could hold him accountable nonetheless, and it allowed the conviction and life sentence to stand. Texas mother Andrea Yates was likewise impaired when...

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Pop Law: Do Celebrities Get Special Treatment?

Posted on Mar 28, 2017 in Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. The public usually assumes that celebrities receive preferential treatment at every turn in criminal cases, as well as in civil proceedings. Their lawyers tell a different story. The one point of agreement is that celebrities, like other people with lots of money, can hire the best legal representation. Additionally, a Martha Stewart can afford public-relations consultants and even public-opinion surveys, while ordinary defendants may be getting advice from only their family members and drinking pals. Except for the issue of financial resources, celebrities are otherwise less favored by the system than one might think. Certainly, when it comes to being investigated, no one receives more scrutiny than a celebrity. Prosecutors and investigators look under every rock and behind every blade of grass. After all, if proceedings are brought, famous people become famous cases, and high-profile trials define the careers of prosecutors and sometimes of police and of criminalists. Additionally, celebrities may have more difficulty getting favorable plea deals. Few prosecutors want to face public outrage and press rancor for supposedly letting a celebrity off the hook. As to prison time for guilty celebs, judges usually try to sentence the rich and famous as if they were neither. When cameras are hovering nearby, judges know they will not be rewarded for leniency. Fraudster Bernie Madoff received a one-hundred-fifty-year prison sentence, five times his likely life expectancy. At the other end of the criminal spectrum, Paris Hilton was sentenced to forty-five days in jail for violating probation by driving without a license. Her sentence was certainly not lenient to begin with, but her modest legal problems were about to become a ratings gangbuster that attracted extensive coverage from cable news. When she was released early due to medical issues, a national uproar ensued. Within hours, the judge ordered her back into court and then on her way back to Los Angeles County jail. Professor and legal analyst Laurie L. Levenson attributed Hilton’s above-par punishment for traffic violations to the reality that “people are fed up with celebrity justice.” Being tough on Paris Hilton may have seemed harsh to her family and her fans, but for most of the public, the judge seemingly stood tall when Paris Hilton went down. Keep up with the latest updates from Kendall Coffey on Twitter,...

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