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Summer replacement TV series generally suck, and this summer crop is no exception. It’s always the same problem. The glossy show kicks off with a bang, then sputters. Ratings plummet. Ax falls. Next. Such is the certain fate of the newest reality show — let’s call it “Feds,” a spin-off of “Cops.” In “Feds,” dark-suited agents (“Men in Blue II”) drive unmarked cars up and down Wall Street until they spot a swell in a three-piece suit. The old rule (three strikes and you’re out) has given way to the new order (three pieces and you’re in). The granite-faced agents wrestle the blushing businessman to the pavement, slap on handcuffs and parade him before TV cameras. In TV talk, this is a great visual, so the press loves it. Publicity-hungry prosecutors love it. And the public will love it, at least for a few weeks. Ratings were strong for the first episode (“Rigas Mortis”), which introduced the show’s catchy theme song: “Bad boss, bad boss, Whatcha gonna do? Whatcha gonna do When they come for you?” John Rigas, the 77-year-old founder of Adelphia Communications, had the bad fortune of being featured in the debut. Not since J.R. Ewing of “Dallas” fame has a J.R. been so vilified by the press, public and prosecutors. The sight of the elderly executive walking past a gauntlet of cameras drew boffo ratings. Not in the Nielsens, but on the Dow. Following Rigas’ arrest, the Dow spiked. The public clamored for more suits in chains. More arrests seemed like the perfect tonic for a slumping stock market. Never mind that a 77-year-old was not likely to run far or fast. Never mind that his attorneys knew in advance that their client would be indicted and were prepared to turn him in. Never mind that under our system Rigas is presumed innocent, as are the two sons arrested with him. Never mind all that because there were cameras to play to, a stock market to jump-start and careers to build. So the second episode of the show (“WorldCom vs. WorldCop”) hit the airwaves. This time, however, after the agents paraded two execs before the cameras, the market tanked. The feds are learning the tough lesson that the Dow average, like the Nielsen ratings, is fickle, subject to myriad factors and capable of distinguishing between showmanship and substance. Let’s hope they also learn that the power to arrest — an awesome power that is physically and psychologically debilitating to the target — ought not be used as a PR ploy. NO PARADES The decision to have a defendant picked up (instead of allowing him to surrender) should not be based on political calculations. Parading defendants before the cameras smacks of desperation by an administration overeager to prove to a skeptical public that it can and will crack down on corporate crime. In light of the presumption of innocence and to accord equal treatment to all defendants, the decision whether to arrest should turn on only two questions. First, is the defendant a flight risk? Second, is he likely to commit additional crimes if not picked up? If the answer to both questions is no, let the defendant surrender on his own. Contrary to the ad for the Steven Spielberg/Tom Cruise thriller “Minority Report,” not everybody runs. The beauty of the two-pronged test is that it treats all defendants alike, whether white-collar or blue-collar or no collar, whether in a large, medium or small media market, and whether or not the prosecutor plans to run for office down the line. In many instances it will be appropriate to treat white-collar defendants as flight risks, especially if they have overseas or liquid assets. The recent spate of arrests, however, appears to be motivated more by fear of losing ratings points and fall elections than by fear of losing defendants. It is particularly troubling that the arrest warrants emanate from the U.S. Attorney’s Office in the Southern District of New York (known in the Department of Justice as the Sovereign District of New York). While U.S. Attorney in the Manhattan office in the 1980s, Rudy Giuliani practically patented the perp walk. Despite repeated offers by white-collar defendants to surrender themselves, Giuliani would regularly march into their offices at midday, with reporters in tow, and have them cuffed and paraded before co-workers and a TV audience. Basing the decision to arrest on the desire to create a bigger media splash undermines the presumption of innocence. Because of that crucial presumption, the government should use the least drastic means at its disposal that is consistent with ensuring the defendant’s appearance at trial. All defendants are presumed innocent, and a few turn out to be innocent. Indeed, several of the white-collar workers forced to undergo Giuliani’s trail of tears were later acquitted at trial or had the charges against them dropped by the government. If the DOJ has forgotten that bitter lesson, it needs to spend less time on its new reality series and more time studying The History Channel. Paul Coggins is a principal in the Dallas office of Fish & Richardson, a national intellectual property, complex litigation and technology firm. He is a former U.S. Attorney for the Northern District of Texas. His e-mail address is [email protected].

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