White-collar crime cases are a challenge to handle

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Minneapolis criminal defense attorney Allan Caplan spoke last week about his representation of Deanna Coleman, the woman whose testimony brought to light a $3.5 billion Ponzi scheme orchestrated by businessman Tom Petters. (Photo: Bill Klotz)

On a gorgeous August afternoon two years ago, Minneapolis criminal defense attorney Allan Caplan was considering going out for a walk when he got a phone call that ended up sending shockwaves throughout the state of Minnesota.The phone call was from Deanna Coleman, and she was ready to talk about a long-running fraud scheme involving a well-known Minnesota businessman. And talk she did — discussing everything from the preparation of phony purchase orders to the role of Tom Petters and others in the plan to her complicity in the case.“It was the best story I had ever heard,” said Caplan, who’s been practicing criminal law for more than three decades.The call from Coleman, who was the vice president of operations for Petters’ company, led to a massive investigation that resulted in Petters’ arrest and conviction for orchestrating a $4 billion Ponzi scheme. Caplan discussed his representation of Coleman last week at a program sponsored by the Minnesota chapters of the Turnaround Management Association and the Association for Corporate Growth. Other speakers at the event were assistant U.S. attorney John Marti, one of the prosecutors on the Petters case, and former assistant U.S. attorney Hank Shea, now a business ethicist from the University of St. Thomas. Minneapolis attorney David Schultz was the moderator. In discussing the intense investigation that took place after Coleman’s confession, Marti said he knew this was a high-risk investigation and the prosecution had to get it right. He said the media attention generated by the case didn’t make it any easier.“When there are cameras pointed at you, that makes it a much different and much more interesting experience,” he said.In fact, high-profile white-collar criminal cases are not for the faint at heart. In addition to intense media scrutiny, they involve high stakes and high stress.“These are significant cases,” Minneapolis criminal defense attorney James Volling told Minnesota Lawyer. “They have significant consequences for individuals, their families and others, including the victims. There are a lot of emotions at play and the consequences are severe.” To speak or not to speakLarge-scale fraud matters like the Petters case inevitably attract media attention, often getting front page play for days (or weeks or months) on end. Defense attorneys say their strategy for dealing with the attention — or not dealing with it — is something that has to be determined on a case-by-case basis. Defendants are in a sort of Catch-22 when it comes to the media, said Minneapolis criminal defense attorney William Michael. The advantage of being the defendant is that you don’t have to share with the prosecutor the theory of the defense. But if you provide it to the media it negates that advantage, he explained.Nonetheless, Michael agrees with most lawyers who say that at least some response to the allegations is generally in order. “I think it’s beneficial to speak to the media to the extent you can,” he said, noting that in some cases it may be necessary to counter negative publicity. According to Minneapolis attorney Mark Larsen, not responding to questions or saying “no comment” can actually be a disservice to the client in some cases. Oftentimes even something as simple as a statement that the client denies the allegations and intends to try the case in the courtroom is enough, he said.Larsen said that in some cases, however, if the government is making factually incorrect statements about the case, it’s appropriate to speak up. He has, on occasion, even issued a press release attempting to correct the errors. Volling added that if the government goes to the media and makes statements that could prejudice the jury pool, then he may talk as well. “Leaving unrebutted statements out there when you know there is a response and there’s another side to the story is problematic,” he said.Ultimately, however, it depends on the case and the individual defendant, Volling said. “Generalizations don’t work.” A lot at stakeHigh-profile cases add an additional level of stress on those involved as well. Marti said that during the year he worked on the Petters case, he barely slept or saw his family. “A lot had to happen in that year,” he said, explaining that it took a tremendous amount of time to go through the financial documents and evaluate how to best present the case. It generally takes a team of people — lawyers, investigators, paralegals, technology and financial personnel — to prosecute or defend large-scale fraud cases.The cases tend to be document intensive — in terms of hard copies and electronically stored information — so there’s a lot to keep track of and a lot to manage, said Volling.Moreover, attorneys pointed out, a lot more than money is stake. “There is liberty at stake. There are lives at stake,” said Volling. “It’s highly emotional and you have to understand that you’re not just a legal adviser. You’re there through the most difficult moments of somebody’s life.”Michael agreed, noting that a criminal defense lawyer’s job is more than simply addressing the legal issues in the case. There is also the psychological impact on the client, the financial impact and the potential collateral consequences of the charges, he said. Defense counsel must manage time and expectations at the same they are determining the best legal strategy and arguments to make, as well as investigating the case, uncovering facts and understanding where the government is coming from, said Volling. “There are a lot of different balls to keep up in the air,” he said. “Because so much is at stake, they require tremendous focus and effort.” Volling acknowledged that the cases are highly stressful for the prosecutors as well. They have to deal with the media, the public, and often, very emotional victims, he said.Impartial jurorsFinding jurors who haven’t been tainted by the media attention surrounding a high-profile case is an additional challenge, particularly for defense attorneys.Attorneys say they can’t help but wonder if potential jurors who say they’ll be fair are truly able to put what they already know about the case out of their minds.Larsen said that in cases where the judge is conducting voir dire, it’s sometimes helpful to ask if he can pose the question directly to jurors himself. He believes it’s worthwhile to look the jurors in the eye and ask if they’re sure they’ll only use the evidence presented in the courtroom to come to a verdict.Attorneys warn that before taking on a high-profile criminal case, one has to know what he or she is getting into. The cases can take a long time, and there are good days and bad days, said Volling. “A lot of it is just being prepared to work with your client through the ups and downs of these matters,” he said. Michael added that defense lawyers also have to understand that while the defendant’s reputation in the community is important and the news stories are important to the public, the attorney has to focus on the end game. “We need to focus on what the result will be in a court of law, not in the court of public opinion,” h
e said.