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...
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