Anyone, Anytime

      We have reached an unprecedented nadir in American jurisprudence, where ostensibly law-abiding citizens are ensnared in the criminal justice system because they fall victim to aggressive prosecutors and vaguely- worded laws that do not clearly delineate the line between legal and illegal conduct.

      Those are the findings of criminal defense attorney Harvey Silverglate in his recent book “Three Felonies a Day: How the Feds Target the Innocent.” It posits that the average person can unknowingly commit three felonies daily, and he is not prosecuted either because he has not been targeted or because the system could not handle such an overload. Many of the cases cited are from Silverglate’s own practice, and even conceding the often irrational exuberance that defense attorneys can muster on behalf of their clients’ innocence (having practiced criminal defense for many years myself, I am quite familiar with the prototypical lawyer who sees no wrongdoing in any of his clients, ever), he makes a very compelling case of prosecutorial overreach and outright injustice.

    A few examples suffice. A Boston lawyer was prosecuted and convicted of obstruction of justice for advising his client not to testify before the Grand Jury (his constitutional right, of course), which in turn protected another client of his (both knew of the conflict and agreed). A pain-management physician was convicted of illegally prescribing more Oxycontin that the Feds determined that patient should have received; the patient was selling them, and the doctor “should have known” that his patient was disposing of the painkillers on the street. The FDA criminally prosecuted a manufacturer of a catheter used in heart surgery for failure to report product malfunctions – even when those malfunctions occurred through misuse of the device by the surgeon. Thus, a criminal jury was asked to decide whether a medical device was “safe and effective,” and convicted the manufacturer. The first two defendants served prison time; the latter case was reversed on appeal, but not in time to avoid ruining the manufacturer’s life and career.

      In our legal system, Indictments are very easily obtained.  A former Chief Judge of the New York Court of Appeals famously said that in New York, “the prosecutor could indict a ham sandwich.” (The judge, Sol Wachtler, himself later became someone’s treif lunch, and served time for blackmailing a former mistress.) But indictments wreak havoc on a defendant’s life; wasted time and money and heightened stress and aggravation are the norms, even when the defendant is eventually acquitted. And many defendants plead guilty to avoid bankrupting their families and to simply get on with their lives, even when they are innocent, especially when a draconian sentence hangs over their heads if they are convicted at trial. Government resources are essentially unlimited; they have all the attorneys and investigators they need. The private individual, excluding the very wealthy, is very limited. Yet, others fight on, and are rescued either by juries or appellate courts.

     For example, the law now bars drug manufacturers from offering “anything of value” to physicians or corporate purchasers. Even a pen is considered a bribe that is actionable. One company offered free seminars to educate medical personnel as to how their product is used – and they were indicted and prosecuted ! The jury acquitted. Famously, the Arthur Andersen accounting firm, that audited Enron, was prosecuted, convicted and hounded out of existence – for applying the common accounting standards to the fake numbers that Enron was providing them. Their conviction, technically, was for obstruction of justice in following their routine procedures in shredding corporate documents while (unbeknownst to them) Enron was being investigated by the Department of Justice. By the time the US Supreme Court reversed Arthur Andersen’s conviction – in 2005 – Arthur Andersen was long out of business. At the end of the day, there was no conviction – but the company had failed as a result of the prosecution. Under similar charges in another matter, another accounting firm, KPMG, simply capitulated, sacrificed some employees, paid fines, and remained in business – even though the charges against it were equally tenuous.

    Often the Feds will entice one principal, with the prosecutorial Sword of Damocles hanging over the victim’s head, to testify against his mates. Some are forced to sing, others (in Silverglate’s phrase borrowed from a former colleague) are taught how to compose – what to say in order to ensure convictions for others and a good deal for oneself. Other times they will hone in on a celebrity and prosecute the celebrity for “crimes” for which few others are charged; Martha Stewart is a case in point.  Michael Milken pleaded guilty to a felony (to avert a prosecution of his innocent brother) that a judge in another trial later ruled was not even a crime.  And there have been other prosecutions in securities and corporate matters – and even convictions – where appellate courts later ruled that no crime had been committed.

   The prosecutorial zeal feeds the notion that the Government can prosecute anybody and everybody, if they so choose. Silverglate cites a magazine article that reported a snack-time game played in the US Attorney’s office in New York’s Southern District: the lawyers would name a random celebrity – e.g., Mother Theresa – and a junior prosecutor had to concoct a realistic crime for which that person could be indicted. And many statutes are so broadly worded that it is not that difficult. Built into the criminal justice system are catch-all offenses like mail fraud and wire fraud (transmitting false statements – even if you didn’t know they were false), conspiracy and racketeering, obstruction of justice and a host others that are loosely defined weapons with very sharp tips.

    Some people therefore have no luck and no chance. A Connecticut lawyer was tried, convicted, sentenced to prison and disbarred for obstruction of justice for destroying child pornography given to him by his client – even though had he kept it, he would have been guilty of “possessing” child pornography and prosecuted for that.

   Added to the uncertainty is the selectivity of prosecution, known in the trade as “prosecutorial discretion.” Thus, the actor Wesley Snipes sits in prison for tax evasion, whereas Al  Sharpton has escaped the criminal justice system’s attention for very similar acts. AIPAC officials Steven Rosen and Keith Weissman were indicted for “espionage” for receiving information they were “not entitled to receive” about Iranian nuclear capabilities from a government employee (who himself pleaded guilty) – even though they were not government employees and theoretically not subject to that provision of the law. The prosecution was recently dropped, but not before the two had lost their positions at AIPAC.

     What is completely absent in most of these cases is a “criminal state of mind,” i.e., an awareness by the individual that the acts he committed were in fact criminal and that he committed them with criminal intent. There are many fine lines in the law – that is why there is a Tax Court where the IRS doesn’t always win. There are scenarios in which it is impossible to determine whether in fact a particular course of conduct is criminal, leaving it ultimately to the prosecution to determine whether to indict, to a jury whether to convict, and to an appellate court whether to confirm or reverse. But it is obvious that elementary justice would demand that the laws have clarity so that even a layman would be able to ascertain what is lawful and what is unlawful. That shouldn’t take a team of lawyers, and certainly not an appellate court.

   There are other equally egregious cases in the book, all of which leads me to take another look at the conviction of Sholom Rubashkin, now on appeal. Rubashkin was convicted on 86 of 91 counts charged, but the notoriety he has garnered far exceeds the weightiness of the crimes for which he was convicted and sentenced to 27 years in prison. Many of those counts were duplicative – each time a bank advanced his company money under “fraudulent” circumstances and each month’s report to the bank filed by his company were each considered separate counts in the indictment. Since the reports were likely mailed, those gave rise to the wire and mail fraud charges. The heft of the indictments can also influence a jury, on the theory that someone who is charged with so many things must be guilty of something. What was that ?

    The basic fraud committed was apparently Rubashkin’s representation to the bank that his company ran a lawful business, which the Government charged was a “fraudulent” statement because of the alleged employment of child labor and immigration violations. But since those charges were either dismissed by the Government, or Rubashkin was acquitted at trial thereon, it emerges that the “fraud” was, if not contrived, at least overstated. And evidence of prosecutorial overreach is apparent in Rubashkin’s conviction for “failure to pay livestock dealers in a timely fashion” (he was a few days late), the very first time anyone had ever been prosecuted for such a “crime,” a regulation of the Department of Agriculture (seems more like a matter for small claims court).

    What is even stranger is that Rubashkin was making timely repayments to the banks he allegedly defrauded, only defaulting after he (again, like Arthur Andersen) was forced into bankruptcy after the initial charges were lodged against him. How often is a person – businessman or homeowner – prosecuted for making a false statement to a bank on a loan application, even though he continues to make timely repayments on the loan ? Curious. That is not to say that Rubashkin is innocent of every charge; only that it seems that he – and the others cited above – were targeted for prosecution, and almost every target is eventually nabbed on something, anything, and then sentenced to an outrageously-disproportionate prison term.

     That was also the fate of Scooter Libby, former Chief of Staff to VP Dick Cheney, who was convicted on several counts of perjury and obstruction of justice (and also ignored in the book). Libby was hauled before the Grand Jury investigating the outing of CIA agent Valerie Plame, and it was widely suspected that Libby had leaked her identity to journalist Judy Miller, leading to widespread condemnation of the Bush administration for trying to destroy the career (life ?) of an administration foe. But… shortly after the investigation began, the special prosecutor, Patrick Fitzgerald, had already learned that the source of the leak was not Libby but Richard Armitage, a State Department official who had inadvertently revealed Plame’s identity to journalists. So why was Libby being investigated for a crime that the prosecution knew he had not committed ? That is the question that remains unanswered, but Libby was convicted, sentenced to prison (commuted by President Bush) and disbarred for acts that amount to “mis-remembering” (to use a Bush-ism) details of conversations years in the past.

     Obviously, prosecutorial misconduct is not the norm, and just as obviously, laws have to be obeyed by everyone without exception. But the laws have to be clear and comprehensible, prosecutions have to be reasonable and warranted, and justice has to be administered fairly and sensibly. Justice has to be “blind,” i.e., dispensed objectively without regard to politics, race, religion, wealth or status. It can’t ever be a perfect system, because it is administered by fallible human beings. But Silverglate contends, for the most part persuasively and frighteningly, that we still have very far to go even to achieve elementary fairness.