2 Mistrials, 1 Acquittal & A DOJ Listening Problem
Law360
Law360
Lisa Phelan spoke to Law360 about the acquittal for the defendants in the U.S. Department of Justice (DOJ) Antitrust Division’s price-fixing case against chicken industry executives, which prosecutors were trying for the third time following two mistrials despite warnings from the judge about limited evidence.
“The division seems to currently be overly confident that circumstantial evidence can win price-fixing cases,” Lisa said.
According to Lisa, antitrust crimes are different from bribery or fraud cases where juries "can tangibly see money moving between accounts or false statements in documents." Sherman Act prosecutions, for alleged agreements in restraint of trade, instead need to show a "meeting of the minds" between the defendants, she said.
"This type of evidence only comes from direct testimony of insider witnesses, and the long-standing policy at the division was that you needed at least two such witnesses to have a winning case,” she added. “DOJ relied heavily in these chicken trials on documents and agent testimony, which is just not persuasive to most juries without those multiple insider witnesses.”
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Practices