Post-Conviction Proceedings (From Business Crimes - A Guide for Corporate and Defense Counsel, P 327-407, 1982, Jeffrey Glekel, ed. - See NCJ-90533)

• NCJ Number: 90540
• Author(s): S V Wilson
• Date Published: 1982
• Length: 81 pages
• Sale Source: Practicing Law Institute
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

By playing an active role in the sentencing process, defense counsel for white collar offenders can favorably impact the sentencing decision, and by using the available posttrial motions, notably the motions for new trial and reduction or modification of sentence, a more favorable disposition may be achieved for the client.

Abstract

Defense counsel should make every effort to see that all favorable factors that can influence the sentencing decision are considered in the presentence investigation and report. In sentencing proceedings for white collar offenders, defense counsel should point out the punitive effect of the criminal proceedings and conviction relative to the client's professional and community standing, the negative and costly consequences of incarceration, and the positive impact to be gained from community service and restitution to be obtained from the client's continuing to work in the community. A particular sentencing alternative should be recommended. An appellate review of the sentence may be pursued if there is evidence of error in the sentencing process. Deferred prosecution is an alternative disposition that may be sought before trial, which gains probationary supervision for a period of time, after which (if successfully completed), the case is dismissed. A motion to correct an illegal sentence is usually made under the contention that the court acted in excess of its authority under applicable statutes, and reduction of sentence may be achieved if new evidence bearing upon the sentencing decision has been uncovered. Motion for a new trial may be based on the 'interest of justice' or on 'newly discovered evidence.' Justice may require a new trial on occasions of jury misconduct or irregularities, prosecutorial misconduct, violation of the right to counsel, or judicial misconduct. Other postconviction remedies include (1) habeas corpus, a means of securing release from unlawful confinement; (2) coram nobis, which seeks vacation of conviction because of an error of fact; and (3) arrest of judgment, when the indictment or information does not charge an offense or if the court was without jurisdiction over the offense charged. The appendixes contain Federal paroling policy guidelines and benchmarks relevant to white collar crimes. A total of 303 footnotes are provided.