I maintain — and will continue to maintain until we see criminal law reform that the overwhelming expansion of criminal codes — especially federal criminal laws — our rights will continue to diminish and due process will become but a fig leaf to cover oppressive government action. In addition, there are few things as frightening as over-zealous and unethical prosecution. Witness above Conrad Black and Whitey Bulger. Both are getting and/or have gotten abused by the system. Here’s an interesting piece from Forbes by Harvey Silverglate — author of Three Felonies A Day:
Two remarkable legal proceedings are currently wending their way through the federal criminal courts. The cases involve very different parties: Conrad Black, one of the most consequential public intellectuals and businessmen of our era, and James “Whitey” Bulger, a Boston-based alleged racketeer and serial murderer. But both cases highlight some of the same profound problems with the way federal prosecutorial business is done these days.
In both cases, as in countless others, the feds have used certain techniques that virtually assure convictions of both the innocent and the guilty, the wealthy and the poor, the violent drug dealer and the white collar defendant, indifferent to the niceties of “due process of law,” particularly the right to effective assistance of legal counsel. In order to prevent a defendant from retaining a defense team of his choice, federal prosecutors will first freeze his assets, even though a jury has yet to find them to have been illegally obtained. They then bring prosecutions of almost unimaginable complexity, assuring that the financially hobbled defendant’s diminished legal team (or, as is often the case, his court-appointed lawyer) will be too overwhelmed to mount an adequate defense.
Why does this matter? One never knows when your lacrosse playing son is going to a college party and some whacked out stripper decides to accuse him of a rape to a more than willing prosecutor. And if that day ever comes — a defense attorney, adequately equipped, is the last line of defense. Defense attorneys have done plenty to call into question the practice of law to be sure, but the answer is not disabling adequate defense under the 6th Amendment. The danger in our legal system is overzealous prosecution, not overzealous defense (though also a problem). The majority of federal prosecutions are legitimate of course, but this growing problem needs to be dealt with.