“It is a truism that ignorance of the law is no defense, but to be convicted, defendants in criminal cases must have an intention or knowledge of wrongdoing, known in the law as mens rea, the Latin phrase for “guilty mind.” This happens to have been a lifelong theme of Justice Antonin Scalia, who worried that the requirement, long a bedrock of Anglo-American criminal law, was being eroded by overzealous prosecutors, vaguely worded criminal statutes and judge-made criminal law…
…“It’s obviously been a difficult couple of years for him,” said Austin Bonner, who was a co-editor on the Georgetown Law Journal with Mr. Warren, and now works for a law firm in Washington. “But he handled it amazingly well. I can’t speak for him, but his case has certainly changed my views of the legal system. This has really taught me a lot about the power of the prosecutor and has made me think differently about my own criminal cases.”….“The prosecutor has more control over life, liberty and reputation than any other person in America,” according to Robert H. Jackson, the former Supreme Court justice.”, James B. Stewart, “A Deal in the Dewey Case Still Leaves Troubling Questions”, The New York Times, February 19, 2016
“I would never have read an article like this, nor blogged about it, before being inappropriately sued civilly by the SEC and FDIC, where they made false allegations. Our country is going to miss Justice Scalia! Here’s a related point that isn’t mentioned in this outstanding article: I feel strongly that the federal government should not be able to sue individuals civilly. Most, even relatively wealthy ones, don’t have anywhere near the financial resources to properly defend themselves against our government’s unlimited resources and therefore, they are almost always forced to settle. As a result, the facts and truth are never fully heard and decided in a court of law. I think that’s un-American and might also violate individual rights under the Constitution. Why? Today, civil enforcement actions can have almost as much negative affect on a person’s life, liberty, and reputation (and therefore ability to make a living) as a criminal matter. That’s why I feel strongly that the government should only be able to sue institutions civilly and must charge individuals with crimes, where the burden of proof is higher and where those who cannot afford legal counsel are provided with one.”, Mike Perry, former Chairman and CEO, IndyMac Bank
A Deal in the Dewey Case Still Leaves Troubling Questions
Zachary Warren, with his mother, Christie Warren, leaving Manhattan Criminal Court after an arraignment in March 2014. Credit Carlo Allegri/Reuters
At the end of 2008, during the depths of the global financial crisis, two top officials at the law firm Dewey & LeBoeuf invited a young colleague, Zachary Warren, to dinner at Del Frisco’s, a Midtown Manhattan restaurant. Mr. Warren was 24 years old, a couple of years out of Stanford and headed to law school at Georgetown in the fall.
Over steaks and red wine, the group discussed the troubled state of Dewey’s business. Though Mr. Warren’s title was “client relations manager,” his unenviable job was to prod partners to get their clients to pay their bills. He knew next to nothing about accounting.
In what seems a classic case of being in the wrong place at the wrong time, that dinner precipitated a chain of events that imperiled Mr. Warren’s legal career and could have landed him in jail.
In March 2014, two years after Dewey collapsed in bankruptcy and long after Mr. Warren had left the firm, he was indicted on multiple felony counts for what the Manhattan district attorney, Cyrus R. Vance Jr., called “a massive effort to cook the books.” By then, his co-defendants — the firm’s top lawyers and administrators — had trouble remembering who Mr. Warren was.
District Attorney Cyrus R. Vance Jr. of Manhattan. Mr. Vance’s office dropped the charges against Mr. Warren this week. Credit Brian Harkin for The New York Times
This week Mr. Vance’s office essentially dropped the case, agreeing that Mr. Warren will face no charges as long as he obeys the law for a year and completes 350 hours of community service. He will not face disbarment and is free to continue his legal career.
Mr. Vance deserves credit for ending Mr. Warren’s ordeal, and his lawyers said Mr. Warren, now 31, is “deeply grateful.” (They said Mr. Warren himself could not comment, since he remains under the government’s scrutiny for another year.)
But given the flimsy evidence of any wrongdoing by Mr. Warren that surfaced during the long Dewey & LeBoeuf trial of three other law firm officials that ended in a hung jury in October, the real question is why Mr. Warren was charged in the first place.
“The prosecutor has more control over life, liberty and reputation than any other person in America,” according to Robert H. Jackson, the former Supreme Court justice.
It’s a point Mr. Vance has said he has taken to heart. In a speech to the New York City Bar Association just after Dewey & LeBoeuf collapsed, he said, “an investigation may uncover outrageous immorality and mounds of suspicion; but when investigative work up until trial fails to produce convincing evidence of guilt, we should not proceed — regardless of any public pressure to move ahead.”
But convincing evidence of guilt seems to have been missing from Mr. Warren’s case from the beginning. Charges against the firm’s former chairman, Steven H. Davis, were also dismissed in another deferred prosecution agreement after no one at trial testified that Mr. Davis knew about, ordered or condoned any fraudulent practices. (Mr. Vance has said his office plans to retry the two other defendants, Stephen DiCarmine, the firm’s former executive director, and Joel Sanders, its former chief financial officer.)
The events involving Mr. Warren — the steak dinner and several subsequent business meetings — were also covered at the trial, and the evidence against Mr. Warren seemed equally flimsy. No one testified that Mr. Warren had expressed any concern or awareness that what he or his bosses were doing to try to meet the firm’s end-of-year financial targets might be wrong.
Throughout the case, Mr. Warren’s lawyers emphasized that Mr. Warren didn’t think he was doing anything wrong, and had no reason to think so. He was only trying to get clients to pay their bills. After the steak dinner, he went back to the office and spent nearly the entire night contacting partners and clients around the globe. Indeed, Mr. Warren was so confident he had nothing to worry about during the investigation that he didn’t even take a lawyer with him to his interview with prosecutors.
It is a truism that ignorance of the law is no defense, but to be convicted, defendants in criminal cases must have an intention or knowledge of wrongdoing, known in the law as mens rea, the Latin phrase for “guilty mind.” This happens to have been a lifelong theme of Justice Antonin Scalia, who worried that the requirement, long a bedrock of Anglo-American criminal law, was being eroded by overzealous prosecutors, vaguely worded criminal statutes and judge-made criminal law.
In a statement on the agreement with Mr. Warren, Joan Vollero, a spokeswoman for Mr. Vance, said prosecutors “are confident that, had this case proceeded to trial, we would have met our burden of proof.” Nonetheless, “we believe today’s outcome is the fair and appropriate resolution at this juncture.”
But the test should not be whether prosecutors can win. Rather, as Mr. Vance has acknowledged, it should be whether justice is being served. Ms. Vollero declined to comment beyond the statement.
Still, for Mr. Warren it’s a happy ending of sorts, one that his friends say vindicates a faith in the American legal system that was intermittently shaken during his two-year prosecution.
“It’s obviously been a difficult couple of years for him,” said Austin Bonner, who was a co-editor on the Georgetown Law Journal with Mr. Warren, and now works for a law firm in Washington. “But he handled it amazingly well. I can’t speak for him, but his case has certainly changed my views of the legal system. This has really taught me a lot about the power of the prosecutor and has made me think differently about my own criminal cases.”
Not everyone caught in a prosecutor’s sights is as fortunate as Mr. Warren. Five other low-level former Dewey & LeBoeuf employees pleaded guilty to charges and agreed to testify. None were lawyers, so they did not face the risk of disbarment, and prosecutors agreed not to seek any jail time. Several testified that at the time, they did not believe they were doing anything wrong. They may have concluded that it was easier and less costly to accept a blemish on their record than fight the charges.
Many impoverished and disadvantaged defendants have even fewer resources to fight prosecutors’ accusations. While Mr. Warren does not come from a wealthy family, both of his parents are prominent lawyers with wide contacts in the profession. His mother is a professor at William & Mary Law School and his father is a retired California state judge.
Mr. Warren is a product of elite schools and clerked for a federal trial court judge. He then landed a prestigious clerkship on the United States Court of Appeals for the Sixth Circuit.
Prominent lawyers took up Mr. Warren’s cause. One former chairman of a large Manhattan firm told me that Mr. Warren’s prosecution had generated widespread concerns within the New York bar, and that he had conveyed that concern to Mr. Vance.
Mr. Warren’s lawyers had a long list of witnesses willing to testify to their client’s integrity. Among them was J. Frederick Motz, the federal judge in Baltimore for whom Mr. Warren clerked. “I think the world of Zach,” Judge Motz told me this week. “Had the case gone to trial, I would have happily testified to his reputation for truthfulness.”
Before he was indicted, Mr. Warren had a job offer from the prestigious law firm Williams & Connolly in Washington, perhaps best known for its work in white-collar criminal defense cases. But as a matter of policy, the firm rescinded the offer after the government charged Mr. Warren.
He was initially disappointed, but the decision may have had a silver lining. Mr. Warren went to work for a smaller Pittsburgh firm willing to overlook his status as a criminal defendant. “He made the most of it,” Ms. Bonner, the Washington lawyer, said. “He was in court, on his feet, taking depositions. Most junior associates can only dream of that kind of experience.”
This week, Williams & Connolly renewed its job offer, and Mr. Warren accepted.
A version of this article appears in print on February 19, 2016, on page B1 of the New York edition with the headline: Dewey Deal Still Leaves a Question.