"Black and Whitey: How the Feds Disable Criminal Defense" for Forbes.com

Lord Conrad Black and James “Whitey” Bulger are vastly different men. But both federal prosecutions raise similar fundamental questions about the propriety of certain prosecutorial tactics that interfere with a defendant’s constitutional right to mount an adequate defense. In my most recent “Injustice Department” column for Forbes.com, I explain how these tactics virtually assure convictions, regardless of guilt or the niceties of “due process of law.” Yet these unconstitutional techniques are the rule, not the exception, when the Department of Justice really wants to win a case without the defendant putting up much of a fight.

The column after the jump... 

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Tufts Students Interview Silverglate on Baran Case

Tufts undergraduates Aeden Pillai and Mike Yeung recently interviewed me on the topic of prosecutorial misconduct in the case of Bernard Baran for their course on contemporary issues in the criminal justice system. You can read the piece on Mr. Pillai's blogwith an excerpt after the jump. 

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"A Doctor's Posthumous Vindication" in the Wall Street Journal

On December 3, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled in favor of Al Caronia, a pharmaceutical salesman who had been convicted of violating the Federal Food, Drug and Cosmetic Act by pitching the off-label uses of a narcolepsy drug to doctors at conferences throughout the country. Declaring that the Department of Justice’s overly broad interpretation of the law violated Caronia’s free speech rights, the Court vindicated a practice that has become commonplace among physicians.

Doctors such as Peter Gleason, Caronia’s former codefendant, learn through their experiences with patients that many drugs turn out to be effective treatments for ailments other than those for which the FDA has granted official approval. And physicians have a well-established right to prescribe any drug for any use they see fit and to share their insights about effective treatments with other doctors. So it came as quite a surprise to Dr. Gleason when he was arrested by a half-dozen federal agents one day in 2006 and sent down the rabbit hole of the federal criminal justice system for allegedly conspiring to mislead his fellow physicians. I discussed Dr. Gleason’s unjust prosecution in my book Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). My latest piece for the Wall Street Journal serves as a postscript for that discussion, explaining how the Second Circuit’s ruling vindicated Dr. Gleason’s belief that he had never engaged in any improper activity – vindication that, tragically, came too late.

You can find the piece on the Journal's website.
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"Tim Cahill, the lottery, and the demands of democracy" on Bostonglobe.com

After realizing that nobody writing about or reporting on the prosecution of former Massachusetts treasurer Timothy Cahill nor his co-defendant Scott Campbell seemed to grasp the fundamental reasons that the prosecution was both unlawful and ill-considered as a matter of sound public policy, I decided to write a short piece on the case for The Boston Globe. (The Globe’s news and editorial pages were a prime example of what I view as a wrong-headed view of the case – cheering on the prosecution despite its violating the Due Process of Law rights of the defendants as well as the public’s right to benefit from public officials’ exercise of their informing function. And so I submitted my piece to the Globe, which, admirably, agreed to run it despite it’s being critical of the paper.)

You can find it on the Boston Globe's website.

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The San Antonio Four Show the Injustice of Sexual Abuse Witch-hunts

Americans of a certain age will recall the child sexual abuse hysteria that swept the nation in the 1980s and 90s, dealing mainly with day care centers and other such institutions. Starting in California with accusations that day-care workers were molesting and raping children as part of Satanic cult rituals, the hysteria led to dozens of similar prosecutions. It is a testament to the absurdity of the hysteria that almost all the accused have since been exonerated.

I worked directly on the infamous Fells Acres/Amirault and Bernard Baran cases here in Massachusetts, the latter of which involved a defendant prosecuted largely because of his homosexuality. The surviving Amiraults are now out on parole, and Baran was exonerated by the courts when tapes surfaced showing social workers planting false memories of abuse into the minds of children who attended the day care center he worked at.

Just as egregious is the case of the San Antonio Four, in which four women have languished in prison for twelve years for allegedly molesting two children. Long thought to be settled, the case has sprung back to life now that one of the accusers has recanted and one of the defendants has been released on parole. The National Center for Reason and Justice, on whose board of directors I serve, has taken up the women’s cause, helping fund the women’s defense team and paying for a polygraph attesting to their innocence.

In our latest article for Forbes.com’s “Injustice Department,” my research assistant Zachary Bloom and I examine the egregious facts of the case, and discuss the necessity of overcoming the courts’ bias towards “finality” rather than justice in cases like that of the San Antonio Four.

Continued after the jump...

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