Citing Three Felonies a Day, Wall Street Journal columnist criticizes options backdating cases

What was once described as the business crime of the century has now become yet another series of questionable prosecutions, writes Wall Street Journal columnist Holman W. Jenkins in today's paper. Options backdating, described as a fairly meaningless violation of accounting rules, was once trumpeted as a serious defrauding of a company's shareholders. In response to this media-fueled fire, prosecutors indicted scores of executives. As has been made clear after a series of recent judicial rebukes, prosecutors often went to great lengths--including pressuring witnesses to tailor testimony to fit prosecutors' preferred version of events--to prove their case. Writes Jenkins:

Meanwhile, the larger lessons of the backdating furor were drawn in an epic piece in May in the American Bar Association's ABA Journal. By freelance reporter Anna Stolley Persky, the piece connected the dots between (among other things) the backdating witch-hunt, the tainted prosecution of Sen. Ted Stevens, and the government's use of the vague "honest services" statute to criminalize various kinds of behavior post hoc (a practice the Supreme Court finally curbed earlier this year).

One critique can be found in the title of a book by Boston defense attorney Harvey Silverglate: "Three Felonies a Day: How the Feds Target the Innocent." Mr. Silverglate believes that only a mobilization of "civil society" can stop what he calls rampant abuse of prosecutorial discretion.

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ABA Journal connects the dots in "Aggressive Justice" feature

One of the major hurdles in addressing the problem laid out in Three Felonies a Day--the abuse of vague laws by hard-charging U.S. Attorneys--is the tendency of legal analysts to treat prosecutorial abuse with tunnel vision. That is, criticism is often levied in piecemeal fashion, and only when an individual's sacred ox is gored. But Anna Stolley Persky provides a shining exception: a panoramic view of prosecutorial abuse, "Aggressive Justice," featured in the current edition of the ABA Journal.

[Excerpts after the jump]

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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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