Legal Ethics and Reform

CATO Institute Hears Silverglate Speak about his Book

Harvey Silverglate is a criminal defense attorney in Boston. He has defended hundred of mostly white collar offenders. Recently he wrote a book entitled “Three Felonies a Day: How the Feds Target the Innocent” In Oct 2009 Silverglate traveled to Washington to address the CATO Institute. The meeting was moderated by CATO’s Legal Affairs Expert, Tim Lynch, and broadcast over C-SPAN-2.

The two men put on quite a presentation pointing out how criminal law really works in America today. The entire presentation should be viewed by every American. (It is available for Internet re-play from the C-SPAN web site.)

The following points are just a few of the many fine points presented:

(1) This country is suppose to operate with no double jeopardy for the same offense. This means that if a person is found innocent of an offense, he can’t be made to stand trial again for the same offense again. This rule is regularly gotten around by having the State Court try the offender first and if he is found innocent. The offender is tried a second time in Federal Court for the same offense using a statute that has a somewhat different title. An simple example of this process might be to try the person for Robbery first and then, if that is unsuccessful, try him for Armed Criminal Action in a federal court. The Supreme Court has held that both the state and federal courts represent separate “sovereigns” and are therefore outside of the double jeopardy restriction.

(2) The Federal and State governments, to a lesser degree, keep passing laws (similar to each other) designed to give prosecutors a wealth of possible charges they can level at an offender.. If the jury finds the person not guilty on the highest charge there are usually half a dozen lesser charges that the jury might use to find some guilt. Martha Stewart was caught in this way. The main offense in her case was insider trading, but she ended up being found guilty of being less than fully truthful when speeking to prosecutors. She should of had counsel present but her lawyer at the time was not a criminal lawyer and he told her she had no need of representation or coaching prior to the interview. Any prosecutor with a ounce of humanity would have recognized the box she was in and given her a pass on this charge.

(3) Mandatory incarceration statutes are becoming more common. These are statutes that say such things as “if you are found to have committed a Federal felony, no matter how small, and a fire arm was involved” the judge is required to add 10 years to the sentence imposed by the guilty verdict of the jury. In the case of Ignacio Ramos and Jose Compean, two immigration officers who had fired at a fleeing drug dealer who was escaping back to Mexico, the jury gave minimal guilty verdicts for improper discharge of a firearm that they thought carried a one to two year maximum sentence. However, because the use of fire arms was involved, the judge was required to add 10 years to each sentence. The jury was not aware of 10 year “add on” and most stated later they would have voted not guily on all charges if they knew about the “add on”.

(4) The fact that prosecutors compel plea bargains in most criminal cases is alarming. Ideally everyone prosecutors, the defendant, and the public at large should desire a public trial on every criminal charge. The full airing of the facts is in everyone’s best interest. But in this country prosecutors have turned their backs on such principles instead they go to offenders and say you plead guilty to this minor charge without trial or face a trial for a greater crime that will carry a much longer jail time. The prosecutors know a few things: (a) the cost to a defendant to go to trial on the greater charge will be tens of thousands of dollars and many defendants can’t afford such amounts, (b) a full criminal trial has a long lead time and the prosecutors can force the defendant to spend that time in jail, if they can induce a judge, to set a high bail; this means the defendant is going to spend a good deal of time in jail even if he eventually prevails at his trail (a defendant must decide either to sit nearly one year in jail waiting for trial or to plead to a lesser charge that comes with three years in jail perhaps reduced by parole), and (c) the time of incarceration between a lower charge that is plea bargained and a major charge can be a factor of four or five say 3 years versus 15 years, and (d) the defendant knows the lesser charge will be included along with the major charge at trial so the defendant might find himself found guilty on the lesser charge anyway and with the extra time “add ons” that the jury will not be told about (e.g. having a gun at the commission of the crime).

This is a small sample of the points made by Tim Lynch and Harvey Silverglate made at this most informative CATO lecture.

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