Black and Whitey: How the Feds Disable Criminal Defense
7th January 2013
Two remarkable legal proceedings are currently wending their way through the federal criminal courts. The cases involve very different parties: Conrad Black, one of the most consequential public intellectuals and businessmen of our era, and James “Whitey” Bulger, a Boston-based alleged racketeer and serial murderer. But both cases highlight some of the same profound problems with the way federal prosecutorial business is done these days.
In both cases, as in countless others, the feds have used certain techniques that virtually assure convictions of both the innocent and the guilty, the wealthy and the poor, the violent drug dealer and the white collar defendant, indifferent to the niceties of “due process of law,” particularly the right to effective assistance of legal counsel. In order to prevent a defendant from retaining a defense team of his choice, federal prosecutors will first freeze his assets, even though a jury has yet to find them to have been illegally obtained. They then bring prosecutions of almost unimaginable complexity, assuring that the financially hobbled defendant’s diminished legal team (or, as is often the case, his court-appointed lawyer) will be too overwhelmed to mount an adequate defense.
Your tax dollars at work.
These techniques are the rule, not the exception, when the Department of Justice really wants to win a case. When federal drug enforcers decide to go after physicians who recommend drugs for the alleviation of chronic pain in quantities or for conditions that roam outside of drug warriors’ notions of the “good faith” practice of medicine, they indict the doctors under statutes aimed at drug dealers, then freeze their bank accounts.
We’re from the government, and we’re here to help.
When corporate executives are investigated and charged, the Department of Justice has been known to pressure their employer corporations to refuse to live up to contractual agreements to pay attorneys’ fees for indicted executives. This practice was immortalized in a series of Department of Justice directives, one of which, signed June 16, 1999, is known as the “Holder Memorandum” in honor of its drafter, the current attorney general, at that time the deputy attorney general in charge of the Criminal Division at the DOJ. (In 2006, United States District Judge Lewis Kaplan in Manhattan declared the DOJ’s practice unconstitutional, a decision affirmed by the Second Circuit Court of Appeals. Judge Kaplan wrote that the corporation only “refused to pay because the government held the proverbial gun to its head.”)
Welcome to the Obamanation. Leave your wallet at the door; you won’t need it in jail.