Sovietization of Federal Law—Part Two

In 2013 I posted “The Sovietization of Federal Law” (Applying Principles, pp. 68-70), featuring a book by Boston criminal defense attorney Harvey Silverglate: Three Felonies a Day: How the Feds Target the Innocent. I cited the foreword by Harvard law professor Alan Dershowitz who quoted Joseph Stalin’s head of secret police, Levrenti Beria, saying “Show me the man and I’ll find you the crime.”

This in essence is the theme of Silverglate’s book: non-objective federal laws are so vague and overly broad that prosecutors can find any law to use against any of us, perhaps up to three times a day.

Silverglate is back with a new book, coauthored by appellate lawyer Sidney Powell. The book is Conviction Machine: Standing Up to Federal Prosecutorial Abuse. It is a series of horror stories, nine chapters, to be exact. Here is the gist of each one.

Catch 22. Don’t talk to FBI agents unless you can record the interview, which they almost never allow, and your attorney is present. Typically, one agent takes notes (yes! in the age of electronic recording) while the other interviews. Selectively edited summaries are often what are turned over to defense attorneys. Agents may tell you that the interview is informal, so you don’t need counsel, and they may show up at your door unannounced.

There’s Nothing Grand about Grand Juries. Don’t talk to grand juries, if you can help it, even if you are just a witness. The prosecutor controls the entire process with sole aim of getting an indictment, about 95% of the time. It will be just you, the prosecutor, and up to twenty-three jurors. No counsel, especially defense attorneys, are allowed in. (You can pause and request to go outside to consult with your lawyer, but that will be a bad sign to the jury.) If you are a witness and the prosecutor does not like your testimony, you can be upgraded to a subject of interest or even to a target for indictment.

Acts of God. Prosecutors control discovery, which means the release of exculpatory evidence. They determine what is “material” to the defense, often cherry-picking what to hand over. See my March post. Also, see the Bernard Baran and Duke lacrosse cases.

What Does the Law Require of Us? Criminal intent, or mens rea, is often no longer required to be proven in alleged federal crimes. If an act did in fact occur, that’s all the proof needed to secure a conviction. The attitude of many federal prosecutors is that white collar targets are essentially the same as mobster thugs.

Plea Bargaining. Enormous pressure is brought on defendants to encourage pleading to a lesser crime regardless of guilt or innocence. Prosecutors often “concoct” crimes by piecing together vague portions of two statutes. Defendants take the pleas because it gets the horror over with and prosecutors like the deals because it gives them another notch in their six shooters. Losing at trial for the defendant may result in a longer sentence than would result from a plea bargain.

An Offer He Can’t Refuse. Informants and witnesses are offered attractive deals—reduced sentences or none at all—to encourage them not just to sing, in the words of Professor Dershowitz, but also to compose. Such deals would be called extortion, bribery, or obstruction of justice, if offered by a witness or defendant. And often the knowledge of such deals offered by prosecutors are excluded from court testimony.

Prosecutorial Misconduct. The subtitle of this chapter is “Who Will Prosecute the Prosecutor?” Good question. Apparently, no one. Prosecutors pile on the charges, not just one or two, but ten, thirty, seventy, and in some cases over one hundred. That way they know they will get at least one or a few definite judgments. Coauthor Powell says that her bosses, in the Department of Justice (DOJ) during her younger years of training, would urge prosecutors not to pile on the charges, but to select their four or five best and run with those. Prosecutors also don’t hesitate to strong-arm—as in threaten to indict or actually indict—family members. Wives, sons, brothers, elderly parents have all been intimidated by these guardians of the law. And, of course, prosecutors can and have ordered pre-dawn raids complete with SWAT teams and television cameras; they relish “perp walks” (in front of cameras), but get judges to issue gag orders against defendants. Does police state come to mind? And one more thing: prosecutors have absolute immunity, which means they cannot be sued! (See this for Silverglate’s commentary on how in 1990 the then head of the DOJ’s criminal division Robert Mueller tried to entrap Silverglate.)

Where Have All the Judges Gone? In other words, where is judicial oversight, which federal judges have the constitutional power to use. Such as, throwing out frivolous cases, based on vague and overly broad statutes; exercising judicial control over the zealous prosecutors who gleefully use perjury traps and that catch-all, when all else fails, obstruction of justice; and refusing to send defendants to solitary confinement, which the ACLU and United Nations both have declared to be torture. Unfortunately, the judges side more often with prosecutors than Lady Justice. (Many judges are former prosecutors.)

Once Is Not Enough. Habeas corpus, often used as an appeal for retrial after new evidence has been discovered while in prison, and coram nobis, used as an appeal after completion of a sentence to clear the defendant’s name, have both been severely narrowed such that it is extremely difficult to secure an order for retrial or dismissal of the original charges. And retrial, incidentally, must be done in front of the original trial judge, on the assumption that the trial judge will gladly admit his or her mistakes!


The final chapter concludes with an abundance of recommendations, aimed at correcting all of the above, ranging from encouraging judges to become the adults in the room to requiring Congress to be more scrupulous and precise when drafting and passing new laws. Judges, in particular, at the federal and appellate levels, the authors say, should have at least twenty years of experience practicing law before being appointed and that should include several years as criminal defense attorneys. They also recommend term limits for Congress.

Professor Dershowitz, in the foreword to Three Felonies a Day, states that criminal law at the time of the American Revolution was assumed to be so simple that it could be read and understood while running.*

Unfortunately, we are a long way from that simplicity. And we have a long way to go to get back to it.**


*Ayn Rand stated the principle simply: don’t initiate physical force (which includes fraud) against anyone, and that principle is embedded in the Bill of Rights. What we need is precise definition of the laws—but that would require a cultural commitment to reason, logic, and objectivity, which the postmodern academics are not about to return to.

**One issue not covered in Conviction Machine, but is in Professor Dershowitz’s Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo is the notion of “litigation privilege.” It says witnesses who file court papers are protected from defamation lawsuits, which means they can say most anything. Such filings are usually available to the press, which explains why we often see scurrilous headlines about prominent people being prosecuted. The prominent people have no recourse to defend themselves. They are guilty “by accusation.”