When you are a prosecutor, the government can do no wrong.

When you go from being a prosecutor to being a defense attorney, all of a sudden, you see the government doing wrong.

From abuse of prosecutorial discretion to outright prosecutorial misconduct.

Why, all of a sudden, do we see what we haven’t seen before?

Matthew Jacobs was a federal white collar crime prosecutor for ten years in Sacramento, California.

He’s now a partner at DLA Piper in Sacramento, California.

“There are three main ways in which the government can be wrong,” Jacobs told Corporate Crime Reporter in an interview last week.

“One is an honest mistake based on a misunderstanding of the facts or a mis-evaluation of the case. I’m not sure I would call that prosecutorial discretion. If they understood the facts correctly, they probably would have not pursued the matter at all.”

“Then there is the issue of abuse of prosecutorial discretion.”

“Assuming that the prospective defendant is guilty of something, is it worth pursuing? Is it a matter that is worth prosecuting given the potential collateral consequences, loss of license, whatever it may be?”

“For something that is in the scheme of things a minor transgression?”

“Now there’s a third type of wrong and that is prosecutorial misconduct.”

“I’ve seen a lot of the first and second types of – let’s just call it being wrong.”

“And I’ve seen significantly less of the third type. I don’t think there are a lot of prosecutors out there who are intent on going after people who are not guilty – I won’t say innocent people. But there are prosecutors who are willing to bend the rules or break the rules to get an advantage.”

“When I do see hints of that, it tends to be by law enforcement agents as opposed to the prosecutors.”

“And it can come from kind of an enjoyment of the power that they have or the kind of heightened focus on a subject or target that leads them to use inappropriate or illegal means of investigation.”

“Obviously there are instances where investigators go way overboard. You’ve got the Ted Stevens situation, you’ve got the situation in Los Angeles on the FCPA case a few months ago that involved quite egregious and repeated violations of discovery rules.”

“I haven’t personally been involved in cases of that magnitude and I hope I never am, but it’s certainly something I’m on the lookout for.”

Jacobs says that the transition from being a prosecutor to being a defense attorney “was difficult at first.”

“One of the things that you learn pretty quickly when you become a defense attorney is that the government can be wrong,” Jacobs said.

“It can be kind of a surprising realization. But once you figure that out, and it doesn’t take very long, then it becomes extremely important to your clients to be able to utilize your knowledge of the workings of the prosecutor’s office and to explain to your clients that the government got this wrong.”

“I’ve been really quite surprised by the number of times that the government has gotten things wrong.”

“Often, it’s not just a question of guilt or innocence. Although certainly the government makes mistakes in that regard. But it can be a matter of – they got my client’s role wrong. They think he or she is a more important part of what they are investigating.”

“It can be extremely important to show that so that the consequences that are visited upon the client are not as grave as the government would otherwise think they should be.”

“In other cases, the facts are just presented to us and it’s damage control.”

“We just try to make sure that our clients are not hurt as much as they might otherwise be given the facts as they’ve been presented.”

“So, I didn’t find the transition very difficult – which was a little bit surprising to me.”

“I know a lot of my colleagues look back at their days in the U.S. Attorney’s office wistfully and think that those were the best days of their careers.”

“I’m not like that. They were certainly good years. I don’t wish that I hadn’t had them. I enjoyed my time there. I enjoyed wearing the white hat. I absolutely enjoyed saying that I represented the US government.”

”But I’ve really enjoyed the variety and the freedom. That was another thing. Once you get out of government you realize how constrained you were in the types of things that you could do.”

“Right now, I’m in different courts, I’m in different states, I’m in different federal courts, I’m in administrative agencies, I’m dealing with an individual’s problem or I’m dealing with a silicon valley company’s problem or I’m dealing with a Japanese company’s problem.”

“I’m working with my colleagues in London or Hong Kong. And there’s just a much wider variety of activities and challenges on a day to day basis that makes the practice very different and very rewarding compared to being an Assistant US Attorney.”
Jacobs says he’s seeing corporations being less willing to self report.

“I think the trend is away from self reporting,” Jacobs said. “And it’s probably a consequence of the diminishing value of self reporting.”

“There’s an old saying – no good deed goes unpunished. I think that there have been instances where the expected benefits of self reporting and early cooperation have not been forthcoming.”

“In fact, one can come out of that process feeling like they should never have self reported at all because they would not have been any the worse off.”

“And the activity may never have come to the government’s attention at all.”

“I’m more hesitant about counseling a client to self report. That depends on which US attorney’s office or government agency we’re talking about. And it depends on my experience and the intelligence that I obtain from colleagues in the defense bar about the value of self reporting.”

[For the complete q/a format transcript of the Interview with Matthew Jacobs, see 26 Corporate Crime Reporter 30(12), July 23, 2012, print edition only.]