Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus 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, 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.

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

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 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...

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DiMasi Agonistes and the federal ‘justice’ system

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.

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Blagojevich Sentenced: He Joins the Justice Department's Smoke and Mirrors Show

Rod Blagojevich was sentenced on December 7th (Pearl Harbor Day!) to 14 years in prison. I argue in my latest “Injustice Department” piece at that Blagojevich was a victim of an ever-expanding federal prosecutorial apparatus. He violated no state laws, and yet found himself under the thumb of a prosecutor citing vague federal statutes. The result was Blagojevich’s having been found culpable for behavior that was not criminal, and that he had no reason to think would be construed as such. In the run-up to his sentencing where the trial judge played his assigned part in a morality play enabling unjust federal prosecutorial power, and in a last desperate attempt to lessen his punishment, Rod Blagojevich admitted responsibility. But he admitted to having committed what I deem to be non-crimes. And if a new congressional bill—the “Clean Up Government Act”—gets enacted into law, we will see a great many more unsuspecting local politicians finding themselves in the crosshairs of  an overzealous and unjust federal criminal justice system.  Today it is the pols in the DOJ’s crosshairs; tomorrow it can readily be all of us (indeed, it pretty much is already).

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Obama Learns Newspeak: The Administration's Perversion of the Freedom of Information Act (FOIA)

On October 30th, the Obama administration proposed an executive rule that will instruct government agencies to lie to the citizenry. The administration's proposal is a rule-change to the Freedom of Information Act: under the new policy, agencies would be instructed to tell citizens seeking prohibited documents not merely that the documents are not available, but that the documents do not exist at all. As my research assistant Daniel Schwartz and I show in our article on today, the implications of this seemingly insignificant bureaucratic decision are quite far-reaching, and make a veritable mockery of President Obama's supposed embrace of a new "era of openness" in government.

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Updates related to Harvey's
book Three Felonies a Day, a critical
take on the Justice Department

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