TFD

Civilization and Its Discontents: Burying the Boston Marathon Bomber

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 14 May 2013 14:00:27 GMT

Americans conceive of our struggle against terrorism as an us-versus-them battle between our civilization and those who would seek to destroy it. But the recent controversy over the burial of Tamerlan Tsarnaev shows that our civilization can also fall victim to our own sometimes brutish impulses.

My latest column for Forbes.com, co-authored with my research assistant Zachary Bloom, addresses the ethical obligations that we as a civilized society must remember to obey in the wake of terrorist attacks. You can find it on my “Injustice Department” blog.

Beware the FBI when it is not recording

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 13 May 2013 21:32:40 GMT

Civil libertarians are used to sounding the alarm about pervasive government surveillance in the era of cellphones, drones and the Internet. But, as alleged Marathon bomber Dzhokhar Tsarnaev’s classmate Robel Phillipos is now discovering, an equal threat to liberty is the FBI policy forbidding recording of interviews.

My latest column, which ran in this Saturday’s (May 11^th) Boston Globe, explains the danger faced by witnesses and defendants who talk to the FBI. You can find it on the Globe’s website.

O’Brien indictment: the sausage factory and the democratic process

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 03 May 2013 17:04:54 GMT

Former Probation Department Commissioner John O’Brien was recently federally indicted for bribery and racketeering, after a series of Boston Globe stories and an official investigation showed that the probation department under O’Brien was giving preferential treatment to job candidates recommended by legislators and some judges in exchange for favorable treatment by the legislature in budgetary decisions. In my most recent column for Massachusetts Lawyers Weekly, coauthored with my friend and former law partner, Judge Nancy Gertner, we argue that, though the Probation Department’s hiring practices were not crimes under the present federal criminal code. It would be hard to find a government official who would not be subject to prosecution under such a large and nebulous definition of “corruption” and “fraudulent pretenses” as the U.S. Attorney describes in the O’Brien indictment.

The column after the jump...

Bulger’s immunity defense: what appearance of justice requires

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 22 Apr 2013 16:35:06 GMT

Public confidence in the justice system suffered a major blow when the late-1990s trial of Stephen Flemmi revealed the federal government’s cozy relationship with Whitey Bulger and the Winter Hill gang. Federal Judge Denise Casper, the new judge recently assigned to Bulger’s trial, now has a golden opportunity to help restore that confidence. Casper’s upcoming first major ruling will be pivotal. She has to decide whether to reconsider a decision by her predecessor, Judge Richard Stearns, that Bulger and his lawyers will not be allowed to present Bulger’s asserted immunity defense to the jury unless they first convince the judge that the federal government actually granted Bulger effective immunity. In my most recent column for Mass Lawyers Weekly, I argue that Casper must take a second at this ruling.

The column after the jump...

KPMG and Scott London: Long-Forgotten Devil's Deal Means Feds Are Unlikely to Bring Corporate Charges

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 18 Apr 2013 15:58:54 GMT

On March 20 former KPMG partner Scott London admitted to passing confidential inside information to his friend Bryan Shaw, who reportedly traded on that information, making over a million dollars. In my most recent “Injustice Department” column for Forbes.com, co-authored with my research assistants Juliana DeVries and Zachary Bloom, I explain how appalling violations of trust are nothing new to the KPMG leadership, considering their long-forgotten devil’s deal with the U.S. Department of Justice back in 2004, whereby the firm “cooperated” with the government and threw its employees and clients under the bus. A culture of betrayal is made almost inevitable by the prosecutorial tactics of the DOJ, which turn colleague against colleague and company against employee on the basis of not-always-truthful testimony.

You canfind the column here, on my "Injustice Department" blog.

Climbing the Ladder to Steven A. Cohen

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 05 Apr 2013 19:02:59 GMT

I was struck recently by a page-one story in the Wall Street Journal about the latest arrest in the Department of Justice’s ongoing investigation of alleged insider trading at SAC Capital, a prominent hedge fund. So far six people have pleaded guilty or been convicted, and four have agreed to “cooperate.” It is the meaning of “cooperation” that is at the heart of my opinion piece.

You will find my column in today’s paper on the “Opinion” page, or on the Wall Street Journal’s website.

Boston Phoenix RIP

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 27 Mar 2013 16:55:29 GMT

As many of you likely have heard, The Boston Phoenix (last year re-named simply The Phoenix) has ceased publication, a victim of the harsh economic times for print journalism. The remaining skeleton staff presiding over the sad burial rites has edited and published the final issue of the paper, available only in an on-line version that can be read at http://thephoenix.com.

I have written my final column that will be of particular interest to those of you who have been reading this rather remarkable “alternative weekly” for years. But it should also be of interest to those who have not had the pleasure of such a long-term reading experience. Here is my piece:

http://thephoenix.com/Boston/news/153300-freedom-watch-my-final-phoenix-column/

The Strange and Dangerous Case of the Lottery and Mr. Cahill

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 18 Mar 2013 14:34:59 GMT

The states are often described, in the memorable words of Justice Louis Brandeis, as the “laboratories of democracy,” places in which new laws and practices can be tested and perfected on the local level before spreading to the rest of the nation. Unfortunately, this process can occasionally go awry, as it did with Massachusetts’ recent anti-corruption law. Modeled after the vague and excessively broad federal “honest services fraud” statute, the Massachusetts law ended up criminalizing vast swaths of ordinary political activity.

The first test case pursued by Massachusetts Attorney General Martha Coakley was a prosecution of former state Treasurer Timothy Cahill. In light of the jury’s acquittal of the co-defendant and its hung verdict in Cahill’s case, my latest column, which ran in this weekend’s Wall Street Journal, takes a look at the anti-corruption law and the alleged “criminal” activity that Cahill engaged in while making a third-party bid for governor in 2010.

You can find my column on the Wall Street Journal’s website, or, for those without a subscription to the Journal, you can find the full column after the jump.

Preserving Justice by Saying No

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 04 Feb 2013 17:03:45 GMT

My book review of Jess Bravin’s new book, TERROR COURTS: ROUGH JUSTICE AT GUANTANAMO BAY (Yale University Press) is now available on Reason.com. The book is a very interesting read by a very sophisticated reporter of law and justice issues. The review after the jump...

The Swartz suicide and the sick culture of the DOJ

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 23 Jan 2013 20:14:11 GMT

In the aftermath of the unfathomably sad suicide of Aaron Swartz, I was asked to do an op-ed for the Massachusetts Lawyers Weekly. I was given leave to be frank, and so I was frank. The piece after the jump...

"Black and Whitey: How the Feds Disable Criminal Defense" for Forbes.com

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 03 Jan 2013 18:06:35 GMT

Lord Conrad Black and James “Whitey” Bulger are vastly different men. But both federal prosecutions raise similar fundamental questions about the propriety of certain prosecutorial tactics that interfere with a defendant’s constitutional right to mount an adequate defense. In my most recent “Injustice Department” column for Forbes.com, I explain how these tactics virtually assure convictions, regardless of guilt or the niceties of “due process of law.” Yet these unconstitutional techniques are the rule, not the exception, when the Department of Justice really wants to win a case without the defendant putting up much of a fight.

The column after the jump...

Tufts Students Interview Silverglate on Baran Case

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 03 Jan 2013 15:52:48 GMT

Tufts undergraduates Aeden Pillai and Mike Yeung recently interviewed me on the topic of prosecutorial misconduct in the case of Bernard Baran for their course on contemporary issues in the criminal justice system. You can read the piece on Mr. Pillai's blog, with an excerpt after the jump.

"A Doctor's Posthumous Vindication" in the Wall Street Journal

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 26 Dec 2012 15:54:06 GMT

On December 3, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled in favor of Al Caronia, a pharmaceutical salesman who had been convicted of violating the Federal Food, Drug and Cosmetic Act by pitching the off-label uses of a narcolepsy drug to doctors at conferences throughout the country. Declaring that the Department of Justice’s overly broad interpretation of the law violated Caronia’s free speech rights, the Court vindicated a practice that has become commonplace among physicians.

Doctors such as Peter Gleason, Caronia’s former codefendant, learn through their experiences with patients that many drugs turn out to be effective treatments for ailments other than those for which the FDA has granted official approval. And physicians have a well-established right to prescribe any drug for any use they see fit and to share their insights about effective treatments with other doctors. So it came as quite a surprise to Dr. Gleason when he was arrested by a half-dozen federal agents one day in 2006 and sent down the rabbit hole of the federal criminal justice system for allegedly conspiring to mislead his fellow physicians. I discussed Dr. Gleason’s unjust prosecution in my book Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). My latest piece for the Wall Street Journal serves as a postscript for that discussion, explaining how the Second Circuit’s ruling vindicated Dr. Gleason’s belief that he had never engaged in any improper activity – vindication that, tragically, came too late.

You can find the piece on the Journal's website.

"Tim Cahill, the lottery, and the demands of democracy" on Bostonglobe.com

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 17 Dec 2012 22:56:04 GMT

After realizing that nobody writing about or reporting on the prosecution of former Massachusetts treasurer Timothy Cahill nor his co-defendant Scott Campbell seemed to grasp the fundamental reasons that the prosecution was both unlawful and ill-considered as a matter of sound public policy, I decided to write a short piece on the case for The Boston Globe. (The Globe’s news and editorial pages were a prime example of what I view as a wrong-headed view of the case – cheering on the prosecution despite its violating the Due Process of Law rights of the defendants as well as the public’s right to benefit from public officials’ exercise of their informing function. And so I submitted my piece to the Globe, which, admirably, agreed to run it despite it’s being critical of the paper.)

You can find it on the Boston Globe's website.

The San Antonio Four Show the Injustice of Sexual Abuse Witch-hunts

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 12 Nov 2012 23:06:16 GMT

Americans of a certain age will recall the child sexual abuse hysteria that swept the nation in the 1980s and 90s, dealing mainly with day care centers and other such institutions. Starting in California with accusations that day-care workers were molesting and raping children as part of Satanic cult rituals, the hysteria led to dozens of similar prosecutions. It is a testament to the absurdity of the hysteria that almost all the accused have since been exonerated.

I worked directly on the infamous Fells Acres/Amirault and Bernard Baran cases here in Massachusetts, the latter of which involved a defendant prosecuted largely because of his homosexuality. The surviving Amiraults are now out on parole, and Baran was exonerated by the courts when tapes surfaced showing social workers planting false memories of abuse into the minds of children who attended the day care center he worked at.

Just as egregious is the case of the San Antonio Four, in which four women have languished in prison for twelve years for allegedly molesting two children. Long thought to be settled, the case has sprung back to life now that one of the accusers has recanted and one of the defendants has been released on parole. The National Center for Reason and Justice, on whose board of directors I serve, has taken up the women’s cause, helping fund the women’s defense team and paying for a polygraph attesting to their innocence.

In our latest article for Forbes.com’s “Injustice Department,” my research assistant Zachary Bloom and I examine the egregious facts of the case, and discuss the necessity of overcoming the courts’ bias towards “finality” rather than justice in cases like that of the San Antonio Four.

Continued after the jump...

Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 22 Oct 2012 19:16:58 GMT

Just last month, the Wilmington, NC, federal district court held a long-awaited and hard-fought-for evidentiary hearing in the case of Dr. Jeffrey R. MacDonald. In 1979 Dr. MacDonald was convicted of murdering his daughters and pregnant wife, and he has spent the last 33 years in federal prison, never wavering from his claim of innocence. Over the years, an enormous aggregation of previously unavailable (in large measure because it was suppressed) evidence has corroborated MacDonald’s account of the night of the murders: that four drugged-out intruders, three men and one woman, invaded his home, beat him unconscious, and murdered his family.

The vast trove of evidence uncovered post-conviction has emerged mainly through repeated court filings by MacDonald’s lawyers over the years, including the most recent filing of DNA evidence that convinced the notoriously conservative Fourth Circuit Court of Appeals to order a lower court to convene an evidentiary hearing to take further evidence and to then consider the full picture, including all of the accumulated evidence. Now, importantly, the evidence is bolstered by documentary filmmaker Errol Morris’s new book, A Wilderness of Error, which was released on September 4. The book is an impressive feat, cataloguing the decades of lies, cover-ups, false narratives and grave misfortunes and outrages that have characterized the MacDonald saga. It raises serious doubts about the fairness of MacDonald’s trial and leaves little doubt about his innocence. It is well worth a read, as is its accompanying website, which serves as an invaluable repository for the enormous amount of evidence contained within the text.

A Wilderness of Error chronicles not just a human tragedy, but a chilling case that puts front-and-center pivotal questions about the future of the writ of habeas corpus—the ancient procedural device for revisiting otherwise final convictions. Until now, MacDonald’s repeated attempts to have courts look anew at his conviction have come to naught, largely due to procedural factors that favor “finality” over truth and accuracy. In my most recent column for Forbes.com, I argue that this case should force the courts to condemn to history’s scrap heap these Byzantine obstacles to justice that keep the wrongly convicted in prison.

Those of you who know me understand how strongly I feel about this mind-bogglingly outrageous miscarriage of justice. I am thankful that Errol Morris, who has his choice of absolutely any topic on which to do a book or make a documentary movie, has chosen to write on the MacDonald case.

"On Liberty" Premieres on NightSide with Dan Rea

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 10 Oct 2012 18:05:51 GMT

On September 27, Wendy Kaminer and I appeared together on WBZ 1030's NightSide with Dan Rea for the inaugural broadcast of our soon-to-be-recurring "On Liberty" segment--a project that has been brewing for many years. During the show we discussed the violent protests in the Muslim world supposedly incited by the "Innocence of Muslims" YouTube video, and then opened up the phone lines for callers. The calls led us to an array of First Amendment issues, from flag burning to students' free speech rights to the infamous "shouting fire in a crowded theater," which has become a kind of slogan for would-be censors in recent years.

It was a gripping conversation, and is well worth a listen. You can find it as a podcast on the CBS Boston/WBZ website.

The next installment of "On Liberty" will be on air during the rapidly-approaching holiday season, and will focus on religion in the public sphere.

Political Wisdom in a Hypocritical Age

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 20 Sep 2012 19:32:41 GMT

I’ve been asked many times of late where I stand in the current presidential race. This has raised for me larger questions, the answers to some of which have perhaps become evident in my writings of recent years. So when The Phoenix (successor, as of today’s inaugural issue now on newsstands, in street boxes, and at www.thephoenix.com,to the decades-old Boston Phoenix) asked me to write a “Freedom Watch” essay on the politics of the day, I made an attempt to compress many thoughts on numerous complicated issues into a brief essay. I hope that I’ve succeeded in enlightening rather than confusing my readers.

You can find some of the article after the jump.

Gibson Is Off the Feds' Hook. Who's Next?

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 20 Aug 2012 15:21:27 GMT

On July 30, I wrote a piece on my “Injustice Department” blog on Forbes.com discussing the narrow-mindedness of the Gibson Guitar Company CEO’s claim in a Wall Street Journal op-ed that the United States Justice Department is waging a war against capitalism. It is a war, I suggested, against many sectors of civil society.

Since that piece went up, Gibson Guitar has entered into a deal with the DOJ in which it sort-of admits guilt to alleged violations of the Lacey Act, pays a whopping fine, and will emerge without a criminal conviction in the end. Gibson took this step even though the company and its CEO earlier had publicly proclaimed their innocence. My latest piece, published in today’s Wall Street Journal, explains how corrupt plea-bargaining practices at the Department of Justice, as opposed to actual guilt, likely led to Gibson’s guilty plea and, most disturbingly, to its agreement to stick to a negotiated script with regard to the question of guilt versus innocence. As is increasingly true at the Department of Justice – via a process that has been gaining momentum since at least the mid-1980s – there is no longer a principled and discernible line between truth and falsehood.

Should Bulger Trial Judge Recuse Himself? Silverglate on WBUR

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 09 Aug 2012 14:04:16 GMT

There are two tests for whether a judge should recuse him or herself from a trial. First, does the judge have a bias? And second, might a reasonable person question the judge's impartiality? Reasonable questions certainly exist as to whether Whitey Bulger trial judge Richard Stearns can be impartial, including the accusation that the U.S. Attorney's Office "judge shopped" to put the case in front of Judge Stearns instead of Judge Wolf. David Boeri interviews me (and others) for his WBUR report on this controversy.

'Three Felonies a Day' Garners a Shout-out from George F. Will

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 07 Aug 2012 14:06:26 GMT

There has been much outrage about the federal government's crusade against Nancy Black, the marine biologist and whale watch guide currently facing charges of abusing whales (by allegedly feeding them) and tampering with evidence. George F. Will's July 27 column in the Washington Post is a veritable indictment of the conduct of Department of Justice and National Oceanic and Atmospheric Administration overreach. The column makes for interesting reading, and also contains a shout-out to my book Three Felonies A Day. Will is right to connect Nancy Black's misfortunes at the hands of federal agents with the greater picture of overcriminalization. The vast, unchecked expansion of the federal criminal code in recent decades, which has criminalized many of the basic activities of civil society, means that not even a whale watch guide is safe if a whale is too friendly for federal agents' comfort.

To the CEO of Gibson Guitar: It's Not Just a War Against Capitalism

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 30 Jul 2012 16:33:09 GMT

On July 19, there appeared in the Wall Street Journal an interesting Op-Ed by Henry Juszkiewicz, the CEO of Gibson Guitar, claiming that a raid on his company’s facilities by federal agents is representative of a greater “war against capitalism.” Yet as my co-author Zachary Bloom and I argue in our latest piece for my Forbes.com blog, “Injustice Department,” Juszkiewicz’s Op-Ed suffers for being too narrow and self-focused. In reality, the raid on Gibson’s facilities is less representative of a war on capitalism than of a war on all of civil society, being waged by an out-of-control U.S. Department of Justice wielding vague laws passed by a Congress that clearly does not understand the consequences of its legislative actions, and regulations enacted by administrative agencies drunk with their own powers.

The article after the jump...

NightSide with Dan Rea

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 26 Jul 2012 19:46:14 GMT

Last Wednesday, July 18, I appeared on CBS Boston's NightSide with Dan Rea, to discuss the plight of former Speaker of the Massachusetts House of Representatives Sal DiMasi. DiMasi was convicted in 2009 of committing "honest services fraud," a vague and dangerous law, and is currently serving an eight-year prison sentence. As I discussed in a column in the Boston Phoenix earlier this month, DiMasi's treatment at the hands of the Federal Bureau of Prisons has been unconscionable. And, in light of his recent delayed cancer diagnosis, DiMasi's treatment amounts to a type of torture, with the sole purpose of softening him up to give testimony more favorable to the government before a grand jury sitting in Worcester.

My NightSide interview is a wide-ranging discussion of the DiMasi debacle, and can be found on the CBS Boston website.

Our AWOL Security State

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 26 Jul 2012 18:32:53 GMT

Many on the left have cynically (or at least opportunistically) used James Holmes’s Aurora, Colorado rampage as an occasion to demand gun control. A more sensible and less constitutionally dubious response to this tragedy would be to enact universal reporting requirements that would allow for the aggregating of red flag-raising data, such as records of lawful but suspicious weapons sales in gun stores and unusually large online ammunition purchases. In my most recent “This Just In” piece for the Boston Phoenix, I point out that the Feds are good at inventing "terrorist" plots starring a cast of innocuous misfits, egged on by agents who don’t have enough real work to do and by informants working off some beef with the feds. Yet the feds appear less skilled at gathering accessible information that would help them uncover real crimes. We live, alas, in a national security state that is better at invading liberty than in actually providing protection.

The article after the jump...

DiMasi Agonistes and the federal ‘justice’ system

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 05 Jul 2012 15:27:48 GMT

Being Fourth of July week, it seems a particularly apt time to consider the various forms of tyranny with which we have been inundated of late. The treatment of federal prisoner (and putative “corrupt pol” – a subject on which I expect to have more to say at some future date) Salvatore DiMasi is of the stomach-churning variety. Or at least the treatment of DiMasi by federal prosecutors and “corrections” officials should churn the stomach of all decent citizens devoted to the essential respect for human dignity demanded of our government by the Bill of Rights. Please read my views on the subject in the current issue of The Boston Phoenix; the column after the jump.