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

Two remarkable legal proceedings are currently wending their way through the federal criminal courts. The cases involve very

James "Whitey" Bulger

different parties: Conrad Black, one of the most consequential public intellectuals and businessmen of our era, and James “Whitey” Bulger, a Boston-based alleged racketeer and serial murderer. But both cases highlight some of the same profound problems with the way federal prosecutorial business is done these days.

In both cases, as in countless others, the feds have used certain techniques that virtually assure convictions of both the innocent and the guilty, the wealthy and the poor, the violent drug dealer and the white collar defendant, indifferent to the niceties of “due process of law,” particularly the right to effective assistance of legal counsel. In order to prevent a defendant from retaining a defense team of his choice, federal prosecutors will first freeze his assets, even though a jury has yet to find them to have been illegally obtained. They then bring prosecutions of almost unimaginable complexity, assuring that the financially hobbled defendant’s diminished legal team (or, as is often the case, his court-appointed lawyer) will be too overwhelmed to mount an adequate defense.

Prior to 2004 Conrad Black was a columnist, as well as chairman and chief executive of Hollinger International (now part of Sun-Times Media Group), a newspaper publishing giant whose holdings include the Chicago Sun-Times and the Daily Telegraph. He remains a highly regarded historian and author. In a case of enormous (and unnecessary) complexity, the Securities and Exchange Commission and the Department of Justice went after him on the basis of a dubious and controversial theory that in arranging the sale of Hollinger’s assets, he finagled and structured the deal so as to personally receive a larger share of the proceeds than his ownership percentage entitled him. Rather than test their theory by filing a civil lawsuit on behalf of the minority shareholders, the feds brought an indictment running 75 pages, with 15 complex counts. After many years of litigation and several partially successful trips to the Supreme Court, Black found himself still convicted on two criminal counts, for which he served 42 months in prison.

It is quite possible that Black might have totally prevailed in his case, unnecessarily obscure and complex though it was, had he been able to employ from start to finish his initial legal counsel of choice: the fabled Washington, D.C. firm of Williams & Connolly, which had been representing him with considerable vigor in the pre-indictment stages. But the DOJ did what it routinely does in well-defended cases brought against well-heeled targets...

Read the rest on the Forbes website.

CS.RSS Subscribe to Blog Subscribe to All Updates related to Harvey's book Three Felonies a Day, a critical take on the Justice Department {#foreach $T.Years as year} <div class="year"> <div class="year_header"> <span>{$T.year.Year}</span> </div> <div class="year_months"> {#foreach $T.year.Months as month} <div class="month"> <a href="{$T.month.Url}" year="{$T.year.Year}" month="{$T.month.MonthN}">{$T.month.MonthName}</a> </div> {#/for} </div> </div> {#/for} Archive by Years A Wilderness of Error Aaron Swartz ABA Journal Academic Freedom Adam Liptak Al Qaeda Albert Florence Amirault Announcement Anthony Kennedy anti-bullying legislation Anwar al-Awlaki Arizona House Bill 2549 Aurora Baran Barry Bonds BG Blagojevich Boeri Boston Boston Globe Boston Herald Boston Marathon Boston Marathon bombing Boston Phoenix Carmen Ortiz Caronia Cato Institute civil liberties Computer Fraud and Abuse Act Conrad Black Dan Rea David Boeri day care sex abuse hysteria Deferred Prosecution Agreement Democrats Denise Casper Department of Justice Dzhokhar Tsarnaev Eliot Spitzer Errol Morris Excerpt Facebook FBI FCPA FDA Federal Prosecutors First Amendment FOIA Forbes Forbes.com Form 302 Free Speech Freedom of Speech Freedom Watch George F. Will Gibson Guitar Goldman Sachs Gun Control Harvard Book Store Heritage Foundation Honest Services Fraud Immunity In the News Injustice Department insider trading Interview James Holmes Jeffrey MacDonald Jess Bravin John J. O'Brien KPMG Law Law and Technology Mail Fraud Mandatory Minimums Martha Coakley Massachusetts Lawyers Weekly Mens Rea Michael Milken Morissette NACDL NACDL Champion National Center for Reason and Justice NCRJ NECN New York Times NewsCorp NightSide Ninth Circuit Court of Appeals NOAA NYT Obstruction of Justice On Liberty Options backdating Overcriminalization Peter Gleason Peter Kadzis Peter Stefan Phoenix RIP Police political corruption political maturity Political prosecution politics President Obama probation department Prosecutorial discretion Prosecutorial Misconduct Radio Radio Boston Republicans Richard Stearns RICO Robel Phillipos Robert Mueller Rupert Murdoch SAC Capital Sal DiMasi San Antonio Four Scott London SEC Stephen Mindich Steven A. Cohen strip searches Supreme Court Tamerlan Tsarnaev Tarek Mehanna Terror Courts The Atlantic The Criminal Docket The Phoenix Theodore Anzalone Thomas Finneran Three Felonies a Day Tim Cahill Tobacco UCLA Ukraine US v. Nosal Vague Statutes Video Wall Street Wall Street Journal War on Terror WBUR WBZ 1030 Wendy Kaminer WGBH White Collar Defense Whitey Bulger Wire Fraud witness interviews WSJ Xyrem Yulia Tymoshenko	"Black and Whitey: How the Feds Disable Criminal Defense" for Forbes.com January 03, 2013 2:06:35 PM by Harvey Silverglate Yes Cancel 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... Black and Whitey: How the Feds Disable Criminal Defense Comment Now Follow Comments Two remarkable legal proceedings are currently wending their way through the federal criminal courts. The cases involve very James "Whitey" Bulger different parties: Conrad Black, one of the most consequential public intellectuals and businessmen of our era, and James “Whitey” Bulger, a Boston-based alleged racketeer and serial murderer. But both cases highlight some of the same profound problems with the way federal prosecutorial business is done these days. In both cases, as in countless others, the feds have used certain techniques that virtually assure convictions of both the innocent and the guilty, the wealthy and the poor, the violent drug dealer and the white collar defendant, indifferent to the niceties of “due process of law,” particularly the right to effective assistance of legal counsel. In order to prevent a defendant from retaining a defense team of his choice, federal prosecutors will first freeze his assets, even though a jury has yet to find them to have been illegally obtained. They then bring prosecutions of almost unimaginable complexity, assuring that the financially hobbled defendant’s diminished legal team (or, as is often the case, his court-appointed lawyer) will be too overwhelmed to mount an adequate defense. Prior to 2004 Conrad Black was a columnist, as well as chairman and chief executive of Hollinger International (now part of Sun-Times Media Group), a newspaper publishing giant whose holdings include the Chicago Sun-Times and the Daily Telegraph. He remains a highly regarded historian and author. In a case of enormous (and unnecessary) complexity, the Securities and Exchange Commission and the Department of Justice went after him on the basis of a dubious and controversial theory that in arranging the sale of Hollinger’s assets, he finagled and structured the deal so as to personally receive a larger share of the proceeds than his ownership percentage entitled him. Rather than test their theory by filing a civil lawsuit on behalf of the minority shareholders, the feds brought an indictment running 75 pages, with 15 complex counts. After many years of litigation and several partially successful trips to the Supreme Court, Black found himself still convicted on two criminal counts, for which he served 42 months in prison. It is quite possible that Black might have totally prevailed in his case, unnecessarily obscure and complex though it was, had he been able to employ from start to finish his initial legal counsel of choice: the fabled Washington, D.C. firm of Williams & Connolly, which had been representing him with considerable vigor in the pre-indictment stages. But the DOJ did what it routinely does in well-defended cases brought against well-heeled targets... Read the rest on the Forbes website.