Civilization and Its Discontents: Burying the Boston Marathon Bomber

Americans conceive of our struggle against terrorism as an us-versus-them battle between our civilization and those who would seek to destroy it. But the recent controversy over the burial of Tamerlan Tsarnaev shows that our civilization can also fall victim to our own sometimes brutish impulses.

My latest column for, co-authored with my research assistant Zachary Bloom, addresses the ethical obligations that we as a civilized society must remember to obey in the wake of terrorist attacks. You can find it on my “Injustice Department” blog.

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Beware the FBI when it is not recording

Civil libertarians are used to sounding the alarm about pervasive government surveillance in the era of cellphones, drones and the Internet. But, as alleged Marathon bomber Dzhokhar Tsarnaev’s classmate Robel Phillipos is now discovering, an equal threat to liberty is the FBI policy forbidding recording of interviews.

My latest column, which ran in this Saturday’s (May 11th) Boston Globe, explains the danger faced by witnesses and defendants who talk to the FBI. You can find it on the Globe’s website.

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O’Brien indictment: the sausage factory and the democratic process

Former Probation Department Commissioner John O’Brien was recently federally indicted for bribery and racketeering, after a series of Boston Globe stories and an official investigation showed that the probation department under O’Brien was giving preferential treatment to job candidates recommended by legislators and some judges in exchange for favorable treatment by the legislature in budgetary decisions. In my most recent column for Massachusetts Lawyers Weekly, coauthored with my friend and former law partner, Judge Nancy Gertner, we argue that, though the Probation Department’s hiring practices were not crimes under the present federal criminal code. It would be hard to find a government official who would not be subject to prosecution under such a large and nebulous definition of “corruption” and “fraudulent pretenses” as the U.S. Attorney describes in the O’Brien indictment.

The column after the jump...

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Bulger’s immunity defense: what appearance of justice requires

Public confidence in the justice system suffered a major blow when the late-1990s trial of Stephen Flemmi revealed the federal government’s cozy relationship with Whitey Bulger and the Winter Hill gang. Federal Judge Denise Casper, the new judge recently assigned to Bulger’s trial, now has a golden opportunity to help restore that confidence. Casper’s upcoming first major ruling will be pivotal. She has to decide whether to reconsider a decision by her predecessor, Judge Richard Stearns, that Bulger and his lawyers will not be allowed to present Bulger’s asserted immunity defense to the jury unless they first convince the judge that the federal government actually granted Bulger effective immunity. In my most recent column for Mass Lawyers Weekly, I argue that Casper must take a second at this ruling.

The column after the jump...

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KPMG and Scott London: Long-Forgotten Devil's Deal Means Feds Are Unlikely to Bring Corporate Charges

On March 20 former KPMG partner Scott London admitted to passing confidential inside information to his friend Bryan Shaw, who reportedly traded on that information, making over a million dollars. In my most recent “Injustice Department” column for, co-authored with my research assistants Juliana DeVries and Zachary Bloom, I explain how appalling violations of trust are nothing new to the KPMG leadership, considering their long-forgotten devil’s deal with the U.S. Department of Justice back in 2004, whereby the firm “cooperated” with the government and threw its employees and clients under the bus. A culture of betrayal is made almost inevitable by the prosecutorial  tactics of the DOJ, which turn colleague against colleague and company against employee on the basis of not-always-truthful testimony.

You canfind the column here, on my "Injustice Department" blog.

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