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► "I'm a criminal, You're a criminal" - ..............................................................Reason Magazine
► "Honest efforts" - ...........................................................................The National Law Journal
► "Right and Left Join to Take On U.S. in Criminal Justice Cases" - .................The New York Times
► "Who's Reading What: Two scientists, two books" - ......................The Globe and Mail (Canada)
► "A Question of When Dishonesty Becomes Criminal" - ...............................The New York Times
► "You Commit Three Felonies a Day" - ...................................................The Wall Street Journal
► "If Sports Ruled the World" - ................................................................The Wall Street Journal
► "Arrest Over Software Illuminates Wall St. Secret" - ...................................The New York Times
► "DiMasi defense targets a controversial law" - ..............................................The Boston Globe
"I'm a criminal, You're a criminal"
Reason Magazine
February 2010
By Katherine Mangu-Ward
Q: I’ve been surprised that there hasn’t been more of a push to go after the people responsible for the recent financial crisis in the courts.
A: There is. It’s just taking a while. There is going to be a tsunami of indictments in the mortgage lending area, in the investment banking area, you name it. There are going to be insider trading cases. It’s already started. There are going to be prosecutions for the heads of investment banks and other institutions [based on their responses] to questions at press conferences and annual meetings and conference calls with the financial press. There are going to be indictments against CEOs and other corporate officers for being unduly optimistic in answering questions about liquidity and so forth just as the economic collapse was beginning to grip.
Q: But what those people did wasn’t criminal. It was just stupid, right?
A: Correct. They are going to criminalize it— retroactively, of course, because, after all, nobody in the government saw what was coming. They expect a level of acuity on the part of bank presidents that no one in the Department of the Treasury had. Their theory is that being overly optimistic misled investors. But there is going to be a raft of government prosecutions where they call this fraud. I have no doubt about that. ... (Read on at reason.com)
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"Honest efforts"
The National Law Journal
December 7, 2009
By Tony Mauro
The trio of [honest-services] cases, as well as [Supreme Court Justice Antontin] Scalia's pique, come at a time of increasing focus on “overcriminalization,” a concern that vague federal laws like the honest-services statute are being used as catchalls to criminalize behavior that may be distasteful or unethical, but not illegal. Laws like honest-services fraud, critics say, violate the due process requirement that the public be given fair notice of what conduct is legal or illegal.
“Justice Scalia says he looks at the text of things, and he must have looked at this and said, ‘what the hell does this mean?’” said Boston criminal defense lawyer Harvey Silverglate. “Scalia has put his finger on the pulse of a real problem here.”
Silverglate, a longtime civil liberties advocate, has written a new book on the problem, Three Felonies a Day, which suggests, with slight exaggeration, that average citizens in the course of an ordinary day probably do things that violate as many as three federal laws, broadly construed.
But, as Scalia’s strong words indicate, it’s not just liberals like Silverglate who are sounding the alarm. Silverglate was featured at an event at the conservative Heritage Foundation. There, he was welcomed by former Attorney General Edwin Meese III, who has also spoken out about overcriminalization. “I was amazed. I wrote some vicious things about him when he was attorney general, with good reason,” Silverglate said. ... (Read on at law.com)
"Right and Left Join to Take On U.S. in Criminal Justice Cases"
The New York Times
November 24, 2009
By Adam Liptak
In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.
[...]
Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)
The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.
“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.” ... (Read on at nytimes.com)
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"Who's Reading What: Two scientists, two books"
The Globe and Mail (Canada)
October 30, 2009
By Richard Losick
WHO Richard Losick is the Maria Moors Cabot Professor of Biology, a Harvard College professor and a Howard Hughes Medical Institute professor in the faculty of arts and sciences at Harvard University.
WHAT Three Felonies A Day: How the Feds Target the Innocent, by Harvey A. Silverglate
WHY As a scientist, I am fascinated by how truth is established in the judicial system, which prompted me to read the newly released non-fiction book Three Felonies a Day by noted defence lawyer Harvey Silverglate.
Silverglate argues that, over the past 20 years, federal prosecutors in the United States have greatly expanded the interpretation of federal criminal statutes beyond the language of the law. Also, prosecutors are increasingly using the threat of harsh prison sentences, together with creative interpretations of statutes, to coerce false testimony against other, higher-profile targets of their investigations, often for political purposes.
The book is eminently readable and offers counterintuitive interpretations of well-known criminal cases, such as those of Kenneth Lay (Enron) and Martha Stewart, and others in which Silverglate litigated, such as the efforts of prosecutor Bill Weld (later to become governor of Massachusetts) to convict former Boston mayor and then rising star Kevin White.
A provocative and thought-provoking book... (Read on at theglobeandmail.com)
"A Question of When Dishonesty Becomes Criminal"
The New York Times
October 12, 2009
By Adam Liptak
In February, Justice Antonin Scalia wrote that federal prosecutors had developed an unseemly crush on a particularly vague law, one that had “been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”
Justice Scalia was writing to protest the Supreme Court’s decision not to hear an appeal from three city officials in Chicago who had been convicted of violating the law, which makes it a crime “to deprive another of the intangible right of honest services.”
If you can make sense of that phrase, you have achieved something that has so far eluded the nation’s appeals courts.
“How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit, in New York, asked in a 2003 dissent.
[...]
The honest services law is but one example of what Harvey A. Silverglate, a civil liberties lawyer in Boston, calls “an over-criminalization problem.” His new book, “Three Felonies a Day: How the Feds Target the Innocent,” argues that the average American professional unwittingly commits several serious crimes each day.
“Even the most intelligent and informed citizen (including lawyers and judges, for that matter),” Mr. Silverglate writes, “cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.” ... (Read on at nytimes.com)
"You Commit Three Felonies a Day"
The Wall Street Journal
September 27, 2009
By L. Gordon Crovitz
When we think about the pace of change in technology, it's usually to marvel at how computing power has become cheaper and faster or how many new digital ways we have to communicate. Unfortunately, this pace of change is increasingly clashing with some of the slower-moving parts of our culture.
Technology moves so quickly we can barely keep up, and our legal system moves so slowly it can't keep up with itself. By design, the law is built up over time by court decisions, statutes and regulations. Sometimes even criminal laws are left vague, to be defined case by case. Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become potential criminals.
Boston civil-liberties lawyer Harvey Silverglate calls his new book "Three Felonies a Day," referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.
Mr. Silverglate describes several cases in which prosecutors didn't understand or didn't want to understand technology. This problem is compounded by a trend that has accelerated since the 1980s for prosecutors to abandon the principle that there can't be a crime without criminal intent. ... (Read on at online.wsj.com)
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"If Sports Ruled the World"
The Wall Street Journal
September 17, 2009
By Daniel Henninger
While we all know what the rules are in the sports, no one knows anymore what the rules are in real life. Not in politics, law, the bureaucracies, commerce, finance or Federal Reserve policy.
[...]
Boston lawyer Harvey Silverglate argues in a forthcoming book, “Three Felonies a Day,” that federal law has become such a morass that people in business routinely violate statutes without a clue. Modern law lacks what sports provides lucidity. ... (Read on at online.wsj.com)
"Arrest Over Software Illuminates Wall St. Secret"
The New York Times
August 23, 2009
By Alex Berenson
Mr. [Sergey] Aleynikov, who is free on $750,000 bond, is suspected of having taken pieces of Goldman [Sachs] software that enables the buying and selling of shares in milliseconds. Banks and hedge funds use such programs to profit from tiny price discrepancies among markets and in some instances leap in front of bigger orders.
[…]
This spring, Mr. Aleynikov quit Goldman to join Teza Technologies, a new trading firm, tripling his salary to about $1.2 million, according to the complaint. In the days before he left, he transferred code to a server in Germany that offers free data hosting.
[…]
Harvey A. Silverglate, a criminal defense lawyer in Boston not involved in the case, said he was troubled that the F.B.I. had arrested Mr. Aleynikov so quickly, without evidence that he had made any effort to use or sell the code. Such disputes are generally resolved civilly rather than criminally, Mr. Silverglate said.
“It is astonishing that the F.B.I. arrested this defendant at all,” he said. Other firms have also sued former employees recently over concern about high-frequency trading software, though two similar cases are the subject of civil suits rather than criminal prosecution. ... (Read on at nytimes.com)
"DiMasi defense targets a controversial law"
The Boston Globe
June 22, 2009
By Jonathan Saltzman
During a hearing Wednesday in US District Court in Boston, lawyers for [former Massachusetts House speaker Salvatore] DiMasi and a codefendant, Richard Vitale, an accountant and former DiMasi campaign treasurer, said the 1988 statute that undergirds the “honest services’’ fraud charges against the four defendants is hopelessly vague and being misused by prosecutors.
[…]
Harvey A. Silverglate, a prominent Boston civil liberties lawyer and frequent critic of federal prosecutions, called the statute a “garbage pail” and said the Supreme Court has signaled that it is troubled by how prosecutors apply it.
In a recent case in which the high court declined to review the conviction of former Chicago city workers who made patronage hires, Justice Antonin Scalia wrote in a dissent: “Without some coherent limiting principle to define what “the intangible right of honest services’ is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”
“What Scalia pointed out is that not every conduct which seems either immoral or unethical or even in violation of state law is automatically a violation of the federal fraud statute,” said Silverglate, who criticizes the statute in his soon-to-be-released book “Three Felonies a Day: How the Feds Target the Innocent.” ... (Read on at boston.com)