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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The Swartz suicide and the sick culture of the DOJ

In the aftermath of the unfathomably sad suicide of Aaron Swartz, I was asked to do an op-ed for the Massachusetts Lawyers Weekly. I was given leave to be frank, and so I was frank. The piece 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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'Three Felonies a Day' Garners a Shout-out from George F. Will

There has been much outrage about the federal government's crusade against Nancy Black, the marine biologist and whale watch guide currently facing charges of abusing whales (by allegedly feeding them) and tampering with evidence. George F. Will's July 27 column in the Washington Post is a veritable indictment of the conduct of Department of Justice and National Oceanic and Atmospheric Administration overreach. The column makes for interesting reading, and also contains a shout-out to my book Three Felonies A Day. Will is right to connect Nancy Black's misfortunes at the hands of federal agents with the greater picture of overcriminalization. The vast, unchecked expansion of the federal criminal code in recent decades, which has criminalized many of the basic activities of civil society, means that not even a whale watch guide is safe if a whale is too friendly for federal agents' comfort.
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