Feds run amok? Civil liberties lawyer uncovers prosecutors’ abuse of power

BY BY HUTCHINS

Harvey Silverglate ’67
3 felonies

When Raj Rajaratnam was taken into federal custody for violating securities laws, his arrest came with prosecutors’ and investigative agencies’ usual fanfare over having rooted out a bad apple and sent a warning to other would-be violators. Within days, his hedge fund, the Galleon Group, had shut its doors, unable to cope with the pressure the indictment put on its ability to carry on business.

The weight of an indictment by a federal grand jury can crush even the most promising career. And while the gravity of an accusation would seem to counsel restraint in the pursuit of those who violate federal law, a new book, Three Felonies a Day: How the Feds Target the Innocent, by prominent Boston defense attorney Harvey Silverglate ’67, argues that the truth is the exact opposite. According to Silverglate, federal prosecutors have increasingly come to rely on vague criminal laws to investigate and indict professionals in the fields of medicine, politics, law, business, journalism, and non-profit service for a range of practices that have not historically been criminalized. The reasons for these prosecutions range from the self-aggrandizing desire of prosecutors to impose standards of professional conduct on other economic domains to the crass abuse of power for purely political motives.

Silverglate’s latest book chronicles some of the most prominent and controversial federal cases he has witnessed throughout his career, whether during his own practice or in the headlines. As he lays out the facts of each case, Silverglate takes his reader into the mind of a top defense attorney to see past the headlines and the presumption of guilt to demonstrate how in one case after another the Department of Justice has demonstrated unscrupulous and overzealous use of creative criminal indictments to intimidate the innocent and coerce false testimony and plea bargains from its targets.

The problem, says Silverglate, is that the criminal statutes that were originally written to empower federal prosecutors to pursue organized crime have become malleable putty that can be shaped by a skilled prosecutor to bring an indictment against almost anybody. Combined with a vast regulatory state and stiff sentencing regimes put in place for the war on drugs, the federal criminal justice system has degenerated into a “thugocracy.” Even an extraordinary effort to conform to statutory and regulatory rules may be inadequate to prevent a prosecution, as in the case of Lee Leichter, who was convicted of violations of the Medical Device Amendments to the Food, Drug, and Cosmetics Act. Despite his conviction being reversed on appeal, Leichter’s life was devastated by the financial and professional cost of his criminal defense. In a recent interview with the Harvard Law Record, Silverglate said that he wrote the book, “Because I thought it was important to pull back the curtain on some of these practices.”

To many readers, the book will read like a highlight reel of the most prominent and challenging cases to be brought in recent years. Whether examining the Enron scandal and the ensuing demise of Arthur Andersen, the prosecution of investment superstar Michael Milken, the conviction of Martha Stewart, or the battle over assisted suicide in Gonzales v. Oregon, 546 U.S. 243 (2006), Silverglate deftly combines the legal sophistication of a criminal defense expert with the plain speech and driving narrative of a journalist. Each chapter is woven together with the consistent themes of prosecutorial overreaching and the impossibility of determining the scope of conduct prohibited by vague laws, with Silverglate’s probing rhetoric drawing the reader into the suspension of their presumptions. Thus the reader comes to understand a well rounded defense of each individual’s actions on personal, ethical, and legal grounds.

The case-by-case style of the book could become monotonous if it were not for Silverglate’s impressively researched details, deeply sympathetic anecdotes and personal reflections that provide valuable insight into the facts and circumstances of each case. In this way, Three Felonies A Day sacrifices objectivity for rhetorical force. As we are led through a gallery of the egregious abuses of prosecutorial authority, Silverglate’s unvarnished criticism of the Department of Justice belies his criminal defense and civil libertarian roots. But for every ounce of bias injected into the presentation of the book’s individual cases, its central thesis, that power is being routinely abused, inspires ever greater anger and resentment.

As a call to action, Silverglate avoids pretentious lectures on theory or overly technical dissections of particular legal arguments. The strength of his argument lies in the traditional toolbox of the defense attorney. He presents the facts and establishes a narrative in each case that allows the reader to feel that, “There, but for the grace of God, go I.” Each case is supported by legal arguments, analyzing the theory of the case to find an interpretation of facts and law in which the acts of the defendant were in line with a reasonable interpretation of their legal duties. In this way the book succeeds in advancing persuasive interpretations of the law to lawyers and legal insiders while at the same time giving educational background to a more general audience.

Many of the cases are so recent that they have either not yet been finally resolved or the aftermath is still unfolding in the headlines. Silverglate presents the well-publicized prosecution of Massachusetts House Speaker Thomas Finneran as a case of prosecutorial zeal and coercive tactics bringing ruination to an unblemished career, largely for making a statement which was arguably not false and probably not injurious to anyone. But the Finneran case stands out partly because of the transparent motives of the prosecutors. As a component of his plea bargain to avoid spending time in prison, Finneran was forced to agree not to run for public office for at least five years, an agreement that Silverglate finds not only excessive and unethical but probably unconstitutional.

Just this week, the Massachusetts Supreme Judicial Court denied Finneran’s appeal of the revocation of his license to practice law. Silverglate said that this latest loss demonstrates the lasting damage inflicted on a public servant who became the target of prosecutors not due to any pattern of illegal activity but merely for having been in a position of power and public scrutiny. “It pays to be paranoid when you can be prosecuted for these kinds of things.”

For doctors, Silverglate sees the unwelcome oversight of prosecutors as a cause for both professional concern and a serious impediment to responsible medical practice. “The Department [of Justice] has drug warriors controlling medicine now.” As a result, physicians are subject to “SWAT-team style arrest and … lurid smear tactics” for conduct which falls right at the intersection of responsible medical practice and the federal regulation of prescription medications. And once an indictment has been brought, prosecutors frequently seek to freeze assets and coerce testimony out of co-defendants in order to procure a swift plea bargain rather than going through a full trial. Given the extensive investigative authority of the federal agents, friends and coworkers may quickly turn against one another and become cooperating witnesses, even when their testimony is potentially fabricated to arrange a plea bargain. “Like Alan Dershowitz says, witnesses learn not only to sing, but to compose.” To Silverglate, these coercive tactics and the seizure of assets pending litigation constitute a denial of the constitutional right to a fair defense.

Although prosecutors sit at the front lines of what Silverglate sees as the Department of Justice’s abusive decision making, he believes that the entire federal criminal justice architecture has been infected with a culture of aggressive prosecutions. He is skeptical of any real change coming under Attorney G
eneral Holder, because like his predecessors for the last few decades, Holder began his career as a front-line prosecutor. And the courts, says Silverglate, are just as unlikely to be the source of change. “Judges, nine times out of ten, are former D.O.J. honchos.” Given the institutional momentum sustaining these practices, Silverglate believes the only real change must come from the political process.

To his great surprise, says Silverglate, his message has had a widely positive cross-party reception, even by figures he never expected would agree with him. “Liberals, libertarians, and Republicans alike have been very positive,” says Silverglate. His message, that the law should provide greater transparency and prosecutions be brought only in cases of clearly criminal conduct, is one that supporters of constitutional rights and of limited government can unite behind. With an impressive roster of endorsements from legal scholars and practitioners, including Alan Dershowitz, Susan Estrich ‘77, Bruce Fein ‘72 and Michael S. Greco, Three Felonies A Day could become an important book in the public debate over the need for reform of the justice system and the proper role of prosecutors in shaping the law.

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