“You have the right to remain silent.” With a plethora of well-publicized case law as well as long-running television series such as NYPD Blue, Law & Order and CSI, these words have become part of the national vernacular, universally understood to protect a defendant’s right against self-incrimination. In essence, the defendant has the right to remain silent — and is presumed innocent until guilt is proven beyond a reasonable doubt in a court of law.

But does the defendant have the right not to have his own image used against him before trial? Can the defendant avoid being handcuffed and arrested in full view of the media, which often are tipped off to the arrest, and then paraded about by the police while the cameras click and videos record? Unfortunately, for criminal defendants, the answer often is no.

Known as the “perp walk,” this practice is becoming an increasingly common and popular media phenomenon. Once largely reserved for notoriously violent crimes that threatened the safety and security of the community, the perp walk has been extended to indicted chief executive officers and other corporate executives. Indeed, whether for a law enforcement purpose or less laudable objectives of gaining advantage or inflicting intimidation, it now is common for white-collar defendants to be placed in what one federal appeals court has described as “a posture connoting guilt.” Lauro v. Charles, 219 F.3d 202, 212 n.7 (2d Cir. 2000).

How does a defense attorney know if a client suspected of a white-collar crime will be subjected to the perp walk? The answer is simply that defense counsel won’t know unless the prosecutor tells him — and in the federal system, the decision whether to have the defendant arrested is left to the sole discretion of the prosecutor.

Once a prosecution is initiated, either through the filing of a written complaint or an indictment returned by a vote of the grand jury, the rules governing federal criminal procedure give the government a choice: The prosecutor may request that the court issue an arrest warrant or a summons. The arrest warrant commands that the defendant be arrested and brought before the nearest available magistrate judge. The summons, on the other hand, orders the defendant to appear before the magistrate judge at a stated time and place. Fed. R. Crim. P. 9. The ultimate decision to issue an arrest warrant or a summons rests solely in the discretion of the prosecutor — and courts are hesitant to become involved. U.S. v. Fastow, 292 F. Supp. 914, 919 (S.D. Texas 2003).

The purpose of Federal Rule of Criminal Procedure 9 is to secure the defendant’s presence in court. Laurie Levenson, Federal Criminal Rules Handbook (2006). Historically, prosecutors used the arrest power in those instances when the defendant posed a risk of flight or danger to the community. Given that white-collar defendants often do not pose a flight risk or a danger to the community, prosecutors commonly chose to issue a summons, rather than an arrest warrant, allowing the white-collar defendant to voluntarily surrender to the court. Thus, white-collar defendants rarely were subjected to the formal arrest and subsequent perp walk. While the practice of allowing white-collar defendants to voluntarily turn themselves in to the court raised cries of unfair treatment for the rich and privileged, such treatment was generally justified on a legal analysis of the relevant factors.

PROSECUTION TOOL

Times, however, have changed. Instead of focusing on risk of flight or danger to the community, certain prosecutors now are using the arrest power as a crime-enforcement method in the crackdown on white-collar criminals.

Rudolph Giuliani is given credit for “patent[ing] the perp walk” for white-collar defendants during his tenure as U.S. Attorney for the Southern District of New York. Paul Coggins, “Lights! Cameras! Arrests!,” Texas Lawyer, Aug. 19, 2002, at 42. When the time came to arrest three prominent Wall Street traders and bankers that his office accused of insider trading, Giuliani directed that the defendants be arrested at their offices, handcuffed and escorted from the building to a mob of press that had been previously alerted. Charges against one of the defendants were dismissed, although damage to his reputation based on the perp walk and media frenzy was irreparable. Joel Cohen, “No More ‘Perp Walks,’” NLJ, Aug. 5, 2002, at A25.

This trend of formally arresting those accused of white-collar crimes and subjecting them to the spectacle of the perp walk escalated following the Enron debacle. Take, for example, the front-page arrests of ImClone System Inc.’s Sam Waksal and Adelphia Communication Corp.’s John Rigas, among others, although their lawyers urged voluntary surrenders in meetings with prosecutors.

Prosecutors defend the use of the arrest power and perp walk for white-collar defendants on multiple grounds. First and foremost, forcing white-collar defendants to do the perp walk sends out a clear and strong message that, regardless of ethnic background, wealth or power, no one is above the law. Steve Reich, “Arrest and the White-Collar Defendant,” Law J. Newsletters, Business Crimes Bulletin, May 2003. Second, the bold image of a corporate executive in handcuffs being escorted by police officers may deter others from similar conduct. Id. Third, prosecutors claim that the publicity surrounding the perp walk keeps the public informed of law enforcement’s crime-fighting efforts and enhances transparency in the system. Id. Fourth, prosecutors argue that the media exposure of the arrestee’s image may encourage unknown witnesses to step forward with information relevant to the case. Id.

Although not usually included on the prosecutor’s list, perhaps the most important reason is that subjecting the white-collar criminal defendant to the perp walk is a strategic move that shifts the balance of power in favor of the prosecutor by putting intense pressure on the defendant, which may make him or her more eager to cooperate. Cary Spivak & Dan Vice, “Perp Walks More Common in Windy City,” Milwaukee J. Sentinel, May 9, 2005, �A2 at 2.

Numerous legal challenges to the perp walk have been raised in the courts. Defense attorneys have argued for change of venue on the grounds that the perp walk has so tainted the jury pool that the defendant cannot have a fair trial in the district. Fastow, 292 F. Supp. 2d 914, 915-916. Others have pursued challenges under the Fourth Amendment, arguing that the perp walk in question amounted to an unreasonable search and seizure. See, e.g., Lauro, 219 F.3d 202, 207-208; Caldarola v. Co. of Westchester, 343 F.3d 570, 573 (2d Cir. 2003).

‘DESIGNER SUITS AND HANDCUFFS’

Recognizing that the perp walk does have Fourth Amendment implications, the 2nd U.S. Circuit Court of Appeals has held that the practice must serve a legitimate law enforcement purpose to be constitutional. Lauro, 219 F.3d at 212. Therefore, perp walks that are staged for the media with no legitimate law enforcement purpose will not be upheld, while those that are choreographed, but serve a legitimate law enforcement purpose, will pass constitutional muster. Caldarola, 343 F.3d at 577.

“A recent surge in ‘executive perp walks’ has featured accused white-collar criminals in designer suits and handcuffs. Whether the accused wrongdoer is wearing a sweatshirt over his head or an Armani suit on his back, we suspect that perp walks are broadcast by networks and reprinted in newspapers at least in part for their entertainment value,” the court said. “Yet perp walks also serve the more serious purpose of educating the public about law enforcement efforts. The image of the accused being led away to contend with the justice system powerfully communicates government efforts to thwart the criminal element, and it may deter others from attempting similar crimes.” Id at 572-73.

GOVERNMENT LIMITATIONS

In addition to the prohibition on staged perp walks that the court imposed, government policy provides some limitations in federal cases on the prosecutor’s ability to provide assistance to the news media. “U.S. Attorneys’ Manual” �1-7.600. Specifically, the policy provides that, when an arrest warrant is to be executed, “no advance information will be provided to the news media about actions to be taken by law enforcement personnel, nor shall media representatives be solicited or invited to be present.” Id.

Moreover, prior to assisting the news media in photographing, taping or televising a law enforcement activity, the prosecutor should seek the approval of the appropriate U.S. Attorney, who should consider whether such assistance would “[u]nreasonably endanger any individual,” would “[p]rejudice the rights of any party or other person” and is legally permissible.

With the limited protections that are in place, the issue in this uncertain environment is what, if anything, a defense attorney can do to avoid the perp walk in a white-collar case. The reality is that the answer may depend largely on where the case is prosecuted. Statistics indicate that there is a higher likelihood of perp walks for those white-collar defendants prosecuted in New York, Chicago and Houston (see Spivak and Bice, supra) than in other cities such as Denver. Greg Griffin, “Nacchio Joins the CEO Shuffle (But Skips the ‘Perp Walk’)”, Denver Post, Dec. 22, 2005, at C-01. Regardless of location, however, there are several preparatory steps that a defense attorney can take when defending a white-collar case.

First, defense counsel should know the practice in the district in which the case is being prosecuted. Both prosecutors and judges have opinions on how the arrest warrant power is used. After all, while Rule of Criminal Procedure 9(a) removes discretion from the court about whether a warrant should issue, the court has an interest in avoiding excessive pretrial publicity. Knowing the views of the U.S. Attorney or district attorney and the judges in the jurisdiction on pretrial publicity is helpful to giving a client advice about what may happen if an indictment is returned and how to best negotiate a nonpublic surrender of the defendant.

Second, defense counsel should negotiate with the prosecutor. If it appears that a white-collar suspect will be charged, the defense attorney should ask the prosecutor whether a voluntary surrender may be arranged in lieu of an arrest and perp walk. Documenting this request in a letter to the government, explaining why the client is not a flight risk or danger to the community and why the interests of justice are best served by issuance of a summons, is an option also worth considering. This approach can be particularly effective in cases in which the possibility of charges being filed has been known for some time, or when there have been pre-indictment proceedings at which the client has appeared.

If the prosecutor will not commit that a voluntary surrender will be allowed, or if the prosecution is taking place in a district in which the arrest and perp walk are the norm for white-collar defendants, there are several alternatives that may be pursued.

In a federal case, one idea is to contact the U.S. Marshals Service directly. A defense attorney can advise the federal marshals that the defendant intends to surrender him/herself as soon as the warrant is issued. The Marshals Service can then advise when the office opens — an early surrender is usually best — and the most innocuous place to enter the building. These arrangements simplify processing both for the Marshals Service and the client, and may allow the defendant to avoid the perp walk.

If the defense attorney learns that the client will be indicted, an option is to accompany the client to the courthouse when the indictment is presented in open court. Once the indictment is presented, the client may surrender himself or herself to avoid a subsequent arrest.

This method is not foolproof. In January 2003, Michelle Marie Valencia, a former senior natural gas trader for Dynegy Inc., sat with her attorney in the courtroom of the magistrate judge on criminal duty for the Southern District of Texas in Houston for two days, Thursday and Friday, waiting to be indicted and surrender. Mary Flood, “Is ‘Perp Walk’ Just — Or Just Mean?,” San Francisco Chronicle, July 9, 2004, at A15. Valencia’s attorney called to inform the prosecutors that they would be back at the courthouse at 9 a.m. on Monday morning. Instead, Valencia was arrested at her home at 7:30 a.m. that Monday in front of her children. According to her attorney, Valencia was being punished for refusing to cooperate with prosecutors.

MITIGATING THE DAMAGE

In any event, if the client resides outside of the jurisdiction in which the charges are filed, a defense attorney should, unless asserting a defense to extradition or removal, have the client travel into the district so that the client is spared an arrest in front of family or at work, and the subsequent travel to the charging jurisdiction courtesy of the government.

Another alternative is to contact the media and publicly announce that the defendant expects to be charged and is prepared to voluntarily surrender. While this does not necessarily avoid the perp walk, such an approach may take some of the wind out of the media stories and lessen the shock value for the general public.

Finally, the attorney should prepare the client.

Even when a prosecutor has committed to allowing a voluntary surrender, a defense attorney should never promise the client that there will not be a perp walk, because there is no way to guarantee that it will not occur. The most important step is to walk the client through the entire arrest process, and to prepare the client for the potential perp walk — from the element of surprise, to the shock of handcuffs, to the subsequent media frenzy. A defense attorney should tell the client to talk to his or her family or employer, as appropriate, in an attempt to reduce the shock should the arrest and perp walk occur.

If the perp walk does occur, there may be ways for a defense attorney to mitigate the damaging publicity. An attorney should have a media strategy in place that fits with the local rules of court and state bar rules. In general, the best strategy is for the attorney to provide some favorable background on the client with a short statement to the media. That statement also can be made publicly following arraignment, and if the client is released, the photo of the client outside of court without the handcuffs makes a better picture than the prior perp walk.

Also, the client should be prepared to look as professional as possible under the circumstances.

The increase in white-collar case perp walks in a post-Enron world finally may be pushing the envelope of judicial tolerance, particularly in cases in which the appearance of the defendant at trial is assured and the safety of the community is not implicated.

The courts have indicated that letting the public know that a criminal prosecution has commenced is a proper government function; imposing humiliation on the accused before a finding of guilt isn’t. Through constructive dialogue or careful planning, the defense lawyer may be able to avoid having the client depicted in what the Lauro court described as “that humiliating position” known as the perp walk.

William R. Mitchelson Jr., a former Assistant U.S. Attorney for the Middle District of Florida, leads Alston & Bird’s government investigations and compliance team from the firm’s Atlanta office. Mark T. Calloway, a former U.S. Attorney for the Western District of North Carolina, is a partner in the group in Alston & Bird’s Charlotte, N.C., office.