Posts Tagged ‘Harvey Silverglate’

Grassroots Civic Action Is Best Hope To Correct Federal Prosecution Abuses, Says Author Harvey Silverglate In DC Radio Interview Jan. 28

January 28, 2010

Informed and pro-active citizens are the nation’s best hope to correct increasing abuses of power by federal prosecutors, according to my radio interview today with Harvey Silverglate, author of the pioneering new book Three Felonies A Day: How the Feds Target the Innocent.   

Silverglate spoke live on the DC Update edition of My Technology Lawyer Radio, archived at www.MyTechnologyLawyer.com/update.

Silverglate, a Boston-based litigator for 42 years, showed how the federal executive branch abuses power via selective prosecution under hard-to-understand statutes.  The book is winning praise from experts across the political spectrum.  His book deserves the attention of anyone in the country worried that loss of constitutional rights affects politics and business.

Silverglate explained the book’s title thus: The average professional is unaware that he or she has likely committed several federal crimes each day.  Why unaware?  Modern federal criminal laws have exploded in number, and become impossibly broad and vague.

In gripping detail, his book shows unfair prosecutions in different fields affecting ordinary people, as well as Martha Stewart-level celebrities.  In congressional testimony last fall on the problem, Silverglate said:

I was readily able, from my own litigation experience as well as from research done on other cases, to pinpoint myriad inappropriate prosecutions of many an unwary innocent citizen in the medical  community, the medical device and pharmaceutical manufacturing industry, investment houses, bankers, lawyers, accountants and auditors, academics, artists, newspaper reporters, merchants, as well as public officials.  

Won’t judges and defense attorneys protect defendants from unfair treatment?   Silverglate responded to the question on today’s show from my co-host Scott Draughon by saying that too many judges and prosecutors began their careers in a “culture” that assumes that those who are accused must be guilty.  So, Silverglate said, 95% of defendants then plead guilty, in part because so many defense attorneys are former prosecutors accustomed to “processing” clients through the system rather than fighting for them.

His advice for defendants seeking the right attorney?  He suggests seeking help from attorneys active in civic groups compatible with the defendant’s perspectives, not simply experienced courthouse players.

Three Felonies A Day author Harvey Silverglate is counsel to Boston’s Zalkind, Rodriguez, Lunt & Duncan LLP. He is co-founder and board chairman of the Foundation for Individual Rights Education (Fire), a columnist for the Boston Phoenix and a Cato Institute fellow.  His congressional testimony last fall is available here.  In 1999, he co-authored The Shadow University. For details, visit here. Three Felonies a Day is available via Amazon.com here.

Jan. 28 Update Hosts ‘Three Felonies A Day’ Author Harvey Silverglate

January 27, 2010

On radio Jan. 28, I’m interviewing longtime Boston litigator and civil rights expert Harvey Silverglate to discuss his pioneering new book Three Felonies A Day on the DC Update edition of My Technology Lawyer Radio.

Listeners can access the show nationwide beginning at noon via the link at www.MyTechnologyLawyer.com/update, which also provides archives of previous shows I co-host with the show’s founder Scott Draughon.

The book’s subtitle is How the Feds Target the Innocent.  The theme is: The average professional in this country is unaware that he or she has likely committed several federal crimes each day.

Why unaware? Modern federal criminal laws have exploded in number, and have become impossibly broad and vague. National Journal legal columnist Stuart Taylor, Jr. comments, “Abetted by compliant courts and easily gulled media, the feds brand as criminals good people who intended no crime.”

The book shows how the federal executive branch is able to exercise a disturbing form of social control via selective prosecution. The book is winning praise from experts across the political spectrum, and deserves the attention of anyone worried that loss of constitutional rights affects politics and business. 

The show’s founder, business radio pioneer Scott Draughon, will begin the show with an overview of Washington policy news affecting business, politics and quality of life.  Scott’s asked me to join him in an additional a special hour-long discussion at 4 p.m. Jan. 28 because of major recent developments in Washington and around the nation.

Our very accomplished noon guest Harvey Silverglate summarized his book’s themes in testimony last September before a House subcommittee.  

“This book is written from the perspective of a trial lawyer who has seen these statutes wreak havoc with the law and with people’s lives, and threaten the balance between governmental authority and civil society,” he testified.  “The book contains some legal analysis, but primarily it is meant as a description of how vague statutes function, in practice, as a tool of terror and true prosecutorial harassment in the lives of ordinary as well as extraordinary people.” 

Silverglate continued:

I was readily able, from my own litigation experience as well as from research done on other cases, to pinpoint myriad inappropriate prosecutions of many an unwary innocent citizen in the medical  community, the medical device and pharmaceutical manufacturing industry, investment houses, bankers, lawyers, accountants and auditors, academics, artists, newspaper reporters, merchants, as well as public officials.  

The time has come, it seems to me, to reduce or eliminate – rather than to enlarge – the number of these affronts to liberty and fair treatment of our citizens.

I hope you can join us for an especially important program.  Your calls or email questions are welcome, of course.  Call-in with questions at 866-685-7469, or send emails to radio@MyTechnologyLawyer.com.  

Three Felonies A Day author Harvey Silverglate is counsel to Boston’s Zalkind, Rodriguez, Lunt & Duncan LLP. He is founder and co-chairman of the Foundation for Individual Rights Education, a columnist for the Boston Phoenix and a Cato Institute fellow.  His congressional testify last fall is available here.  In 1999, he co-authored The Shadow University. For details, visit here. Three Felonies a Day is available via Amazon.com here.

Listener advisory: Mac Listeners need the tool “Parallels” to access the Windows Media Player.

Why Did Feds Persecute Celebrity Expert Cyril Wecht For Using Fax Machine? Who’s Next?

October 7, 2009

Like many government employees, Allegheny County Coroner Dr. Cyril Wecht of Pittsburgh sometimes sent faxes from his office on personal matters. On Feb. 12, 2002, for example, he sent a New Jersey group a bill for a speech.

Four years later, the Justice Department used that fax for one of 84 felony charges against Wecht, thereby forcing his resignation after 20 years. The charges included 27 felonies for sending personal faxes, along with allegations over mileage vouchers, office stationary, permission for students to study autopsies, and requests for staff help.

Nationally, more than 95% of those who are federally accused in the U.S. now plead guilty. But Wecht, widely known as a TV analyst on celebrity deaths, had the means to fight hard to clear his name and stay out of prison.

Dr. Cyril Wecht

Dr. Cyril Wecht

Court rulings and prosecution errors ended Wecht’s ordeal last June. By then, the 78-year-old had spent $8 million on legal fees over three years, putting him $6 million in debt currently. Authorities dropped the majority of charges against him just before trial in 2008.

Thus, most of the charges were about 23 faxes, whose total out-of-pocket cost to the county was calculated by the defense as $3.96.

Cases like this are creating bipartisan alarm nationally among legal experts who believe that DoJ increasingly abuses its vast powers. I’ve seen the change after covering DoJ fulltime as a newspaper reporter from 1976-1980 in DoJ’s better days, and now as a researcher of such cases nationally. Wecht and former Alabama Gov. Don Siegelman were among panelists at a recent forum on the topic, with video here.

Fear of DoJ abuses was also the theme of a remarkable conference I attended last week hosted by the free-market Cato Institute. A video of speakers is posted here. It’s well worth watching.

The conservative Washington Times columnist Tony Blankley introduced two authors of recent books about such problems. A former prosecutor, Blankley said that political leaders from both parties have for years enabled federal prosecutors to use vague laws to target individuals in an arbitrary fashion.

The most detailed evidence came from Boston defense attorney Harvey Silverglate, author of Three Felonies A Day: How the Feds Target the Innocent and a congressional witness Sept. 29.

His theme: The average U.S. professional unwittingly commits three felonies daily ─ thus enabling Feds to pick and choose whom to prosecute, with scant review by courts, defense attorneys and the news media. His book provides compelling case studies illustrated by defendants fighting to prevent their ruin from “creative” prosecutors using vague or seldom-enforced laws in health care, high-tech, legal affairs, financial services, labor, media and national security.

Another dimension comes from a recent Obama administration legal opinion that reaffirms government authority to review a federal employee’s electronic messages.

This suggests that the Feds will find it even easier than in a “fax” case to gather evidence against those who use workplace computers, cellphones and email for personal messages. Any probes would obviously capture evidence also about those who receive messages from government workers.

And this is not just at the federal level. We know from the Wecht case that the Feds assert jurisdiction to monitor employee messages within a county that receives $10,000 or more in federal funds. There’s scant reason to think the Feds wouldn’t scrutinize targets also at the city or town level.

Celebrity Death Expert
A Democrat, Wecht formerly chaired his party’s county committee and ran for the U.S. Senate. For more than 35 years, Wecht has also been providing TV commentary about the deaths of celebrities spanning the demise of Elvis Presley and Michael Jackson. Often controversial, he’s contradicted official reports that President Kennedy was assassinated by a lone gunman, and he suggests that JonBenet Ramsey’s father was a sex deviant involved in her death.

His blunt comments on local issues clearly irritated some officials who chafed also at his overlapping roles as a coroner, consultant, political organizer and medical school professor. As coroner, he earned $64,000-a-year, and resigned promptly after indictment. His successor’s pay was $175,000. That difference pays for lots of faxes and stationary.

As context, the Justice Department’s longtime official policy is to use its authority in careful proportion to the public interest. In a famous 1940 speech, Attorney Gen. Robert Jackson warned the nation’s U.S. attorneys against “the most dangerous power of a prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”

Jackson later served as chief U.S. prosecutor for World War II crimes and as a Supreme Court justice. Those positions provide long-term authority for his guidance, which remains widely quoted.

Wecht’s attorneys from the powerhouse firm K&L Gates included former U.S. Attorney General Dick Thornburgh, a Republican. In 2007, Thornburgh testified to the House Judiciary Committee that Wecht’s prosecution was “political” and based on “trivial ” clerical oversights.

Nonetheless, DoJ forced Wecht and his attorneys to prepare for 250 witnesses until the government dropped more half the charges just before trial. Also, Wecht felt he needed many appeals to get a fair shake from his federal trial judge, a former law partner of his prosecutor’s husband.

At trial in 2008, the jury deadlocked after 10 days of deliberations. Most jurors voted for acquittal. DoJ promptly announced a second trial, with the FBI contacting jurors to question them about their failure to convict. “It’s a bizarre ending to one of the most unfair trials in history,” commented lead defense counsel Jerry McDevitt.

A bipartisan coalition of community leaders protested Wecht’s retrial. Then a new judge ruled that government’s original search warrant in 2005 was illegal. The waste of taxpayer funds must have been astronomical given Wecht’s own spending of $8 million.

Why was Wecht indicted on the fax charges? He says the Bush DoJ targeted him for his politics. This coincides with a nationwide study that showed a 7:1 pattern of DoJ investigating Democrats.

Additional support for the theory comes from a 2005 memo by DoJ’s chief of staff to the White House calling for additional “loyal Bushies” in the U.S. attorney jobs to ensure optimal political results. That memo and other machinations led to an unprecedented mid-term purge the next year of nine U.S. attorneys who had been appointed earlier by the Bush administration.

Contrary to the public focus on those fired, the real story has always been the impact on the public of the super-loyalists who were retained in such a culture. The Wecht prosecution illustrates that impact.

As it turned out, Wecht drew Republican as well as Democratic support. Unlike most defendants, Wecht received fair coverage from both of his hometown’s dailies, including that owned by conservative Richard Mellon Scaife. A bipartisan coalition of community leaders protested his retrial to DoJ.

U.S. Attorney Mary Beth Buchanan

U.S. Attorney Mary Beth Buchanan

As for the prosecutor who made life hell for Wecht and his family? Western Pennsylvania’s U.S. Attorney Mary Beth Buchanan is a partisan Republican who had led DoJ’s office overseeing U.S. attorneys nationwide until mid-2005.

She denounced Wecht this summer even after being forced to drop the case. I contacted her and her media representative with a list of questions this week but didn’t receive responses before publication. In the past, she’s denied allegations that the Wecht prosecution was unfair or that she helped DoJ and White House colleagues plan DoJ’s purge before she went to Pennsylvania.

Like nearly one-third of the 93 Bush-appointed U.S. attorneys, she remains in office today despite a U.S. tradition that top prosecutors resign soon after voters change the president’s political party.

Who’s Entitled To Use The Office Fax?
Another of those retained is Patrick Fitzgerald, the famed U.S. attorney in Chicago. But Fitzgerald is not without critics. In fact, Fitzgerald used his office fax machine this year to send HarperCollins a threat that he’d sue on a personal basis if the company failed to destroy copies of the book Triple Cross that contained criticism that he considered defamatory.

A personal fax? When questioned, DoJ says it approves incidental personal use of fax machines by government employees.

Case closed.

*********

On Oct. 1, DoJ announced a revamped website that enables your comments on Facebook, Twitter, MySpace and YouTube. DoJ’s announcement says it won’t be collecting data from the sites. That’s good to know, isn’t it? Especially if you’re thinking of using a government device to send your messages.