
 Black and Whitey: How the feds disable criminal defense - eplanit
http://www.forbes.com/sites/harveysilverglate/2013/01/03/black-whitey-how-the-feds-disable-criminal-defense/
======
thebmax
This is a great article. I have followed the Conrad Black case closely and
have been amazed for some time at the ruthless nature of the prosecution. Not
only do they freeze assets, and add on ridiculous charges like 15 counts of
wire fraud because the document in question contained 15 pages, they also use
effective PR campaigns - bringing out the defendant in handcuffs, staging
press conferences where they go into detail on the alleged crime before the
trial has even begun in order to taint the jury pool. For prosecutors, many
cases are not about justice but about winning at any cost - often to further
their own political career. If you are unlucky enough to be caught in the
sights of a ambitious public prosecutor watch out.

There is another case where the feds threatened a general labourer with 24
years in jail because he helped his boss move some bags of fertilizer. Turned
out the government thought the bags might be used as a bomb making material
and charged his boss with terrorism charges. He was an 'accomplice' to the
crime and given the choice of pleading guilty and serving 2 years in jail or
risking 24 years in jail at a trial.

The article is here:
[http://online.wsj.com/article/SB1000087239639044358930457763...](http://online.wsj.com/article/SB10000872396390443589304577637610097206808.html)

Stories like this make me so angry. How many other innocent people are thrown
behind bars by prosecutors 'win at all costs' style.

~~~
munin
I think largely we are to blame for this turn of events.

Where was the demand for justice when mobsters hired million dollar legal
teams to beat murder charges? I think prosecutors are just responding to the
demands of some of their constituents.

~~~
chrisbennet
I can see that prosecutors may feel pressure to convict someone that they
"know" is guilty but that doesn't make it right. It's not right when I
policeman plants evidence and it isn't right when a prosecutor decides he
would rather intimidate the accused instead of win his case fairly in court.

------
angersock
It's very distressing (as at least one other poster has noted) that we have
this sort of "Aha, but now they are treated the same as the poor people!"
thing even possible in our system. It is troubling that there is this obvious
built-in bias towards justice-as-a-function-of-wealth.

A somewhat longer-term issue is this: If it becomes common knowledge that the
Feds don't fight fair, and that my resources can be used against me and mine
via seizure and what not--why do I want to stay in the US and play the game?
Even more cynically, why do I want to play a game I can't win according to
their rules--wouldn't my money be better spent on dead drops for harassment,
assassins, or something against public officials?

I mean, that's the very real risk of this sort of thing, right? That we
undermine the values of our society and provide incentives for extralegal
defense? And that these measures in turn spur further degradation to "fight
the terrorists/crime lords/etc." in one big swooping downwards spiral?

(Edit: The use of first-person is writing style, not intended as "I want to do
X to the gubberment" lunacy, etc. etc.)

~~~
podperson
The Federal government in the US can pretty much screw people it wants to
screw. I think that's fairly well established. The same is true in every other
country I can think of -- at least in the US the fact remains that if you're
genuinely innocent you can have your day in court. If anything characters like
Conrad Black get away with -- figuratively -- murder.

The question is -- do we have someone more sympathetic than a guy who looted
his own companies and a serial killer to serve as an example of this kind of
thing being done to genuinely innocent victims? Forbes may regard Conrad Black
as a sympathetic victim, but I don't think most reasonable people would. What
the writer of this article doesn't like is that the Federal government will do
some very nasty things -- in court -- to people it knows are guilty but hard
to convict of their actual crimes.

In most other countries if the government hates you that much you'll have much
worse to worry about.

~~~
gyardley
See, this is the problem - thanks to a decade's worth of state-sponsored smear
campaigns, you think Conrad Black 'looted his own companies', when that's just
not borne by the facts at all. I wish you luck finding someone who looks more
sympathetic after the government finishes up with them.

And while I agree with your statement about 'most other countries', Americans
should hold their government to a higher standard.

~~~
foobarqux
Can you set the record straight with respect to the Black case?

~~~
gyardley
I'd have to write a book, it's a long and complex case. (If you do want to
read a book, Conrad Black's own book on it is very good.)

Perhaps start with some of Mark Steyn's writing for the Canadian news magazine
Macleans?

[http://www.macleans.ca/columnists/article.jsp?content=200707...](http://www.macleans.ca/columnists/article.jsp?content=20070730_107322_107322&id=7&page=1)

~~~
tptacek
Mark Steyn is not exactly a neutral party in the Black case, which has strong
political overtones. The article we're commenting on also puts a fair bit of
gloss on the affair; Conrad Black may very well be a well-regarded
"historian", but what most reasonable people would call him is "one of the
richest people in all of media"; he went into his legal troubles with
something close to _half a billion dollars_ in assets.

The dubious and controversial theory used against Black was "honest services
fraud". The statute enforcing it does seem to have been perilously vague. But
the moral/ethical/pragmatic reasoning behind it isn't; it boils down to
maintaining a fiduciary duty to your shareholders or, in Rod Blagojevich's
case, to the citizens of the state you govern. Also, Black wasn't merely
charged with honest services fraud, but also with charges like obstructing
justice and theft, charges that Richard Posner upheld.

------
aaronblohowiak
I'm not a fan of freezing the assets of someone and then overwhelming their
legal defense, but this puts the formerly privileged in the same situation
that the poor have -- if you think this is unjust because it deprives people
of adequate legal council then you should also believe it is injust that the
accused poor also have a lack of adequate representation, but you'll never see
that presented in Forbes.

~~~
jessriedel
I think the idea is that it's very rare for the indigent to be plausibly
charged with an exceedingly complicated crime which is expensive to defend
against. Joe-the-common-pickpocket is not at risk of being convicted of a
massively technical financial fraud scheme. Public defenders are arguably
sufficient to defend against what he might plausibly be charged with:
burglary, assault, etc.

~~~
fatbird
Any felony is expensive to defend against for the poor. If you're under the
poverty line, $50k for a lawyer is just as out of reach as $5 million. And if
death is involved, as it often is in the case of poverty crimes, then you're
definitely talking an expensive trial where the defense is easily overwhelmed
by the greater resources of the prosecution.

~~~
checker
$50k for a laywer is out of reach for plenty of people _above_ the poverty
line.

~~~
lilsunnybee
Even if they mortgage / sell their property, their vehicles. Use all family
resources? You gotta do what you gotta do if you're facing felony charges.

------
gyardley
If you'd like to learn more about how the federal government unjustly
railroaded Conrad Black, I can't recommend his autobiographical _A Matter of
Principle_ enough. A great eye-opener of a book.

~~~
correctifier
Well that is his side of the story, which may or may not have any real truth
to it. Personally I do not trust a single thing that Conrad Black says. As a
Canadian I am upset at how he seems to have used his political clout to get
himself a visa and likely have his citizenship restored.

~~~
goodcanadian
It is well established that if you denounce your Canadian citizenship, Canada
will give it back (and in fact, pretend it never happened), at least the first
time. Conrad Black is not special in this regard.

------
gregcohn
I'm surprised by the trend of comments here suggesting that the US government
is going after some of these guys too hard. I thought the general perception
is that they haven't gone after enough wall street swindlers. For example, I'm
not aware of anyone that's gone to jail for the 2007-8 US housing & subprime
crash, despite the fact that clear malfeasance wiped out billions of dollars
of economic and consumer value.

~~~
angersock
...which should raise immediate warning bells.

Given two lemmas: 1\. The Feds can nail anyone they want to the wall. 2\. The
Feds have not prosecuted anyone meaningful for the crash.

What might we conclude?

~~~
pdonis
We might conclude that too many Federal officials had their fingers in the
pie, and any prosecution of the Wall Street executives involved would have
revealed too much of what went on behind closed doors.

------
ef4
Is it possible to buy legal defense insurance? Not just insurance against
civil liability, but insurance that will pay for legal defense in a criminal
case?

~~~
debacle
The moral hazard would make it too difficult (read: impossible) to price the
risk.

~~~
macspoofing
How so? Having your defense funded doesn't guarantee you immunity or a "not
guilty" verdict. Where's the moral hazard?

~~~
mikeash
In short, people would take out the insurance right before they commit a crime
so they didn't have to pay for their own defense. It doesn't guarantee a
verdict, but if you've decided you're going to go to trial anyway, you might
as well take out the insurance, and I don't see how the insurance company
could survive in that environment, since the principle of insurance is that
most people _won't_ need it.

~~~
tossacct
The service exists, and presumably is profitable:
<http://en.wikipedia.org/wiki/Legal_expenses_insurance>

To address your comment in detail:

1)>>>In short, people would take out the insurance right before they commit a
crime so they didn't have to pay for their own defense.

2)>>>I don't see how the insurance company could survive in that environment,
since the principle of insurance is that most people won't need it.

Point 1: Require the insurance to be delayed: you must pay into the insurance
for X number of years before it can be used. In this case, "right before they
commit a crime" will end up being long enough to recoup the costs of the
defense. An actuary can help find what number of years is needed for the
specific business.

<http://en.wikipedia.org/wiki/Actuary>

Point 2: All insurance companies are faced with the challenge of survival.
They often overcome this challenge by increasing their pool of customers:
"most people won't need it" and are profit centers, the few who do need it are
the cost centers. Again, actuaries are the folks to call.

------
jmaygarden
I highly recommend referenced book by the author of the article, Harvey
Silverglate, called "Three Felonies a Day" [1]. It's a great read and details
many similar cases.

[1] [http://www.amazon.com/Three-Felonies-Day-Target-
Innocent/dp/...](http://www.amazon.com/Three-Felonies-Day-Target-
Innocent/dp/1594035229)

------
pge
Interestingly, when I talk to DOJ or SEC prosecutors, I have heard the
opposite. They are concerned because the whitecollar defendants (e.g. Bernie
Madoff) they try to prosecute have access to much larger legal teams than the
feds who are operating on very limited resources.

~~~
fr0sty
Madoff is a spectacularly bad example here. He was arrested Dec 11 and plead
guilty on March 12 of the following year without even attempting to plea
bargain.

~~~
pge
true - I didnt mean to hold him as an example of overwhelming the prosecution
with his resources (just as an example of the type of white collar crime I was
referring to). He is, however, an instructive example in a different way - $1B
of the assets that he stole have never been found. DOJ lacks the resources to
trace the complex paper trail to figure out where it went (as a DOJ friend of
mine said, "The money can always move faster than we can"). So, while he was
convicted, someone somewhere is really, really rich, and the feds don't have
the resources to recover the capital and return it to the victims.

------
charonn0
The fifth amendment requires the defendant to be indicted by a grand jury
before facing trial. I think the article overstates the power of the US
Attorney to bring charges (if perhaps only only in theory).

~~~
rayiner
This should not be downvoted. This is true and an important Constitutional
check on prosecutorial power.

~~~
gyardley
If it was downvoted, it's because the grand jury process has become a farce. A
pretty good description of how it actually works, written by a former
government prosecutor, can be found in this entry:

[http://www.popehat.com/2010/12/30/the-first-rule-of-the-
war-...](http://www.popehat.com/2010/12/30/the-first-rule-of-the-war-on-drugs-
is-dont-talk-about-the-war-on-drugs/)

Conrad Black also describes the use and abuse of the grand jury in depth as
part of _A Matter of Principle_.

~~~
rayiner
The fact that a factually correct and relevant comment does not fit into your
particular conspiracy theory does not warrant a downvote.

------
Unoeufisenough
Such aggressive prosecution has a lot do with the elected nature of sheriffs
and DA's, a peculiarity of the US system. The political nature of enforcement
and prosecution seems to change incentives towards maximizing conviction rates
and publicity of high-profile convictions... sometimes it would seem at the
expense or beyond what would be optimal for society or the crime.

------
dclusin
Would a loser pays system do anything to reduce this sort of behavior? Or is
that only applied to civil cases? Am not a lawyer obviously, so please forgive
the uninformed question.

~~~
lmm
Loser pays would likely be better for the rich, but even worse for the poor -
if you're a poor murder suspect or drug user being pressured to accept a plea
bargain rather than risk a much longer sentence, adding in the costs of the
fancy prosecution case makes it that much worse.

------
iwwr
Would it work to institute a fixed maximum limit in the number of
words/characters in a criminal indictment, as well as restrictions on plea
bargains?

~~~
dmckeon
Simple (& naïve - NAL) fix: Equal budgets for more equal justice.

If assets are frozen, require the prosecution to estimate what they will spend
prosecuting the case and to unfreeze assets of the defendants' choice at least
equal to the prosecution's estimate, to be allocated to provide for the
defendants' defense.

Let the court require weekly up-to-date accounting from the prosecution, with
a proviso that if the prosecution submits inaccurate reports or goes over
their estimated budget the case is decided in the defendant's favor.

Note also that a large percentage of convictions involve a defendant pleading
to a lesser offense.

~~~
maxharris
That's not enough. Assets, however large, should not be frozen at all prior to
trial.

Whatever happened to "innocent until proven guilty?"

~~~
jlujan
The supporting argument is that, if proven guilty, there might not be enough
assets left over to compensate victims. Also, in some cases to prevent the
alleged perpetrator form fleeing. The problem is scenarios as described in the
article. The issues that I see in this is a)that funds unrelated to any crime
are frozen/held and b)there is no recourse when proven innocent. There almost
needs to be some mechanism to hold funds while leveraging them for defense, in
the similar way to a bail bond. As far as rich mobsters, having prosecutors
resorting to vague statutes of unrelated crimes (wire fraud instead of murder)
is indicative of a larger issue with the criminal justice system (as well as
many other scenarios in comments here.) Creating obscure, vague, all
encompassing statues to snare criminals, and ever more frequently, the
ignorent and unwary white-collar, is not representative of an effective and
fair social justice system.

------
helmut_hed
I nearly stopped reading after this phrase: _Conrad Black, one of the most
consequential public intellectuals and businessmen of our era_

This guy is a CEO who raided his own company's coffers, to the vast enrichment
of himself and the impoverishment of his shareholders.

------
brown9-2
The article seems to state that a 75 page, 15 count indictment is
extraordinarily complex. Is that really the case? 75 pages does not seem
_that_ long.

------
pfortuny
Oh please: inequality!=injustice. Please grow up. Envy is not a good path to
justice.

------
PaulAJ
So how, exactly, does the Second Amendment protect you from this?

~~~
talmand
It doesn't, as the Second Amendment is not designed to protect citizens from
overzealous prosecutors but from a tyrannical government. These examples do
not cross that threshold.

