How a Floridian busted for cocaine possession may save future white collar defendants

The common-law—and common-sense—notion that we should face prosecution only when we knowingly commit a crime has been slowly eroded over the years in state and federal courts. Last month, however, a Florida judge’s ruling in a cocaine distribution case opened the door to a wider discussion of mens rea and its importance as a protection for all Americans. In my latest piece for, I argue that the case is especially relevant to businessmen/women, given the explosion in recent years of vague and unfair statutes by which they can become unwittingly entrapped.
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Constructing Truth: the FBI's (non)recording policy

President Obama today officially
 signed into law a bill allowing FBI Director Robert Mueller to be appointed two years beyond his original ten year posting. But what Obama neglects to confront, and all but a few citizens fail to notice, is a fundamental flaw in the FBI’s truth-gathering apparatus consistently defended by Mueller (and, to be fair, his predecessors): the Bureau-wide policy of deliberately not recording interrogations and interviews, a practice that allows the FBI to threaten/manipulate witnesses and manufacture convictions, and which brings into question basic notions of fairness and justice. In the latest installment to my blog, co-authored by my research assistant Daniel Schwartz, we explores the deeper implications of the non-recording policy, and exposes it as a means for the FBI, in the words of Sonny Corleone, to deliver to witnesses “offers they can’t refuse.”
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How the Arroyo Jury Got It Right

Boston jury recently proved, in the prosecution of a former Boston firefighter accused of mil fraud, that twelve ordinary citizens can be more discerning than the Fourth Estate and have a better sense of constitutional values than federal prosecutors.
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News Corp, the FCPA, and Eliot Spitzer's 'Longstanding Practice' of Hypocrisy

Eliot Spitzer has been 
leading the charge to indict Rupert Murdoch’s News Corporation under the Foreign Corrupt Practices Act (FCPA). But Spitzer takes this position seemingly unaware that, had a different federal prosecutor used such logic against him, he might very well be in jail right now, as I explain in the latest post to my Injustice Department blog on
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Justice 'Deferred'

In a recent front-page article in The New York Times, reporters Gretchen Morgensen and Louise Story argue that “Deferred Prosecution Agreements” represent a softer approach to corporate crime. What the Times misses, however, is the extent to which these arrangements, and their proclivity for punishing the innocent, sow terror within the rank and file of corporate employees and officers. The Deferred Agreements, I write in my latest column, represent a creative way for the federal government to extract a large fine from the company, manufacture convictions of individual officers and employees, enhance the reputations and conviction rates of federal prosecutors before they head to Wall Street law firms for high-paying partnerships--all while dispensing with the inconvenience of indictment or trial.
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