Wendy Kaminer in The Atlantic: 'When Everyone is an Offender'


Stalwart civil libertarian (and longtime friend) Wendy Kaminer points out in The Atlantic how a recent New York Times Magazine article, which lauded "fuzzy" prohibitions on insider trading, essentially scoffs at the time-tested guarantee of due process. Due process "requires that laws clearly delineate the boundaries between legal and illegal behavior, providing us with notice of our potential criminal liabilities and denying prosecutors the arbitrary, ad hoc power to police our private and public lives," Kaminer writes. She goes on to cite the recent case of a Boston firefighter who was acquitted of mail fraud, and whose acquittal caused a curious uproar from local media.

Locally, a Boston jury recently acquitted a former firefighter of mail fraud after he was caught engaging in bodybuilding while on disability leave. In response to an outcry over the acquittal of this apparently non-disabled defendant, jurors explained to the Boston Globe that while they considered him guilty of trying to defraud the pension system, "they did not accept that he was guilty of two counts of mail fraud, a federal crime that could have put the muscular 49-year-old behind bars for up to 20 years." He should have should have been charged in state court for simple fraud, jurors reportedly concluded. 
But cases like this are unusual. The vast majority of criminal cases never reach juries, much less the Supreme Court, so there are few checks on federal prosecutors who abuse a vague, expansive criminal code. We might all be prosecuted for committing "three felonies a day," my friend Harvey Silverglate has written. 

"When Everyone is an Offender," Wendy Kaminer, The Atlantic (September 28, 2011)

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A Boston neighborhood saved by a dog and a golfing judge


If Moritz Otto Bergmeyer—an architect and building renovator living in a refurbished former warehouse at 107 Fulton Street on the boundary between Boston’s Waterfront and North End neighborhoods—did not have to take his English sheep dog Sacha out to relieve herself early one Saturday morning in the spring of 1972, one of the premier historic neighborhoods of the City of Boston would no longer exist.
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Pledging Allegiance

Two "pledging" controversies have come to the fore in the Boston area in the past couple of weeks. A Brookline group, led by my longtime friend Marty Rosenthal, has sought to move the Pledge of Allegiance out of the public school classroom. Across the river, the Harvard Freshman Dean asked incoming first year students to sign onto a pledge proclaiming such values as civility, kindness, and inclusiveness, to be on a par with academic achievement.

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Justice strikes out: The railroading of Barry Bonds


While I have not followed baseball since my beloved Dodgers left Brooklyn, a recent baseball-related story caught our attention. As many of you may know, Barry Bonds—the “home-run king”—was just convicted in federal court of obstruction of justice, and acquitted of three counts of perjury. At issue was whether Bonds lied, in 2003, to a federal grand jury about his steroid use and relationship with the Bay Area Lab Cooperative (BALCO). The jury failed to convict him of perjury, but due to a disturbing reading of the law, District Judge Susan Illston upheld the conviction of obstruction. It seems that, during the course of the Grand Jury questioining, Bonds rambled on, and failed, initially, to answer a given question directly. Even though he later gave a clarified, specific response to the question at hand, his rambling constituted, for 12 jurors and a District Court judge, an attempt to obstruct justice. For obvious reasons, every citizen—especially the more loquacious among us—would have reason to worry if this conviction stands.

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Leveling the playing field: Immunized witnesses for the defense

In the vast majority of criminal cases, the defense faces a serious institutional disadvantage. The government has virtually unlimited resources, immense experience in playing to an attentive (and often subservient) media, the ability to intimidate witnesses into testifying, and a habit of plea-bargaining its way to victory. It also can grant immunity to witnesses, a gift that assures the prosecution of evidence when it needs it. The defendant, in contrast, ordinarily has no such weapon by which to enforce his subpoena to a witness who “takes the Fifth.” A recent federal court case in Philadelphia, about which I write in my Forbes.com blog Injustice Department, holds the potential for a partial un-stacking of the deck.


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