The Strange and Dangerous Case of the Lottery and Mr. Cahill

The states are often described, in the memorable words of Justice Louis Brandeis, as the “laboratories of democracy,” places in which new laws and practices can be tested and perfected on the local level before spreading to the rest of the nation. Unfortunately, this process can occasionally go awry, as it did with Massachusetts’ recent anti-corruption law. Modeled after the vague and excessively broad federal “honest services fraud” statute, the Massachusetts law ended up criminalizing vast swaths of ordinary political activity.

The first test case pursued by Massachusetts Attorney General Martha Coakley was a prosecution of former state Treasurer Timothy Cahill. In light of the jury’s acquittal of the co-defendant and its hung verdict in Cahill’s case, my latest column, which ran in this weekend’s Wall Street Journal, takes a look at the anti-corruption law and the alleged “criminal” activity that Cahill engaged in while making a third-party bid for governor in 2010.

You can find my column on the Wall Street Journal’s website, or, for those without a subscription to the Journal, you can find the full 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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"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 John Edwards trial: the prosecutors' ball of steel wool predictably sinks, for Forbes.com

The day that I read the judge’s instructions to the jury in the John Edwards campaign financing criminal trial, I predicted a deadlocked jury on all counts. I was close. Why was I so certain of this outcome despite Edwards’ exceptionally unsavory character? Because the jury instructions were so obtuse that not even the judge herself (were she honest about it) could understand them. The Edwards trial provides yet another example of overzealous federal prosecutors using dangerously unclear statutes to go after whomever they choose, regardless of whether the person in question has actually committed a crime.

The column after the jump...

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NACDL Podcast Audio Available

This week I was a guest on NACDL's weekly podcast, "The Criminal Docket," where Mary Price and I discussed the overcriminalization crisis that has plagued America for the past three decades. It was a wide-ranging discussion of the causes, effects and possible solutions to the vast proliferation of vague statutes and overzealous prosecutions at the federal level. You can find the full audio of the podcast on iTunes, or by clicking here.



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