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Marie Gryphon Archives



Is it really true that criminal defendants don't get a fair shake from republican-appointed judges? I've got a piece up at the National Law Journal in which I argue otherwise.


Companies legally spend billions of dollars on advertisements that they hope kids will like. If kids like the ads enough, they may even tell their friends, and the best ads, like Verizon's "Can you hear me now?" commercials, become memes.

But fear not, the trial bar will rescue modern civilization from this disturbing trend by suing deep-pocketed Faceboook for allowing kids to use the software's "like" feature to express their approval of ads they find on the site. Next up: a lawsuit against pizza delivery companies for allowing teens to wear their t-shirts ironically?

Conrad Black's Prison Experience

Conrad Black, a Canadian media magnate whose conviction under the reprehensibly vague "honest services" statute was unanimously vacated by the Supreme Court last month, was freed on $2 million bail pending a rehearing on the question of whether the prosecutor's use of the honest services theory amounted to harmless error.

In the New York Sun, Black writes that his 28 months in federal prison has made him a critic of overcriminalization and excessive federal prison sentences:


I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody...Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases.


They may spell it "overcriminalisation," but the British newspaper takes the problem on in two freely accessible pieces from this week's print issue. The cover story, "Rough Justice," critiques both the expansion of American criminal law and the size of its penalties. Money quote:

IN 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

A companion piece, "Too Many Laws, Too Many Prisoners," tells the story of George Norris, a 65-year-old Texan who spent 17 months in federal prison for a paperwork violation on some orchids he sold to an undercover federal officer. His orchid business was largely a hobby -- he had never profited more than $20k per year -- but neither this nor his age prevented the feds from sending three trucks full of flak-jacketed, armed men to detain him and search his home. Norris' subsequent arrest mystified his fellow federal jailbirds:

In March 2004, five months after the raid, Mr Norris was indicted, handcuffed and thrown into a cell with a suspected murderer and two suspected drug-dealers. When told why he was there, "they thought it hilarious." One asked: "What do you do with these things? Smoke 'em?"

Both pieces are worth a read.

Will Bruno Walk?

A federal judge sentenced former New York Senate leader Joseph Bruno to two years in prison last Thursday, and then suspended the sentence pending the outcome of a trio of U.S. Supreme Court cases challenging the notoriously vague "honest services" law under which Bruno was convicted.

Like the case against Bruce Weyhrauch, the former Alaska lawmaker whose appeal the Court heard last fall, the case against Bruno is based on his failure to disclose conflicts of interest which he had no duty to disclose under state law. But unlike Weyhrauch, Bruno wasn't merely shopping his resume around for a job; he was collecting millions of dollars in "consulting" fees from companies with interests before the New York Assembly.

Bruno is a genuinely a shady character, so it is unfortunate, in a way, that he will likely get off scot-free when the Supreme Court sharply limits or strikes down the honest services law, as it should. But the state of New York has only itself to blame for failing time and again to enact ethics rules that require disclosures of conflicts of interest such as those that Bruno concealed. Public disclosure can neutralize improper influence, and many other states have ethics rules that require it.

Vague statutes and politically driven prosecutions have been hallmarks of the law enforcement-oriented approach to political malfeasance. The New York Assembly should instead experiment with more sunshine. By enabling the voters to decide what kinds of conflicts they are willing to tolerate from their politicians, disclosure laws can reduce political corruption with fewer side effects than vague prohibitions that even judges can't define.

Veteran Faces Jail Time for Good Deed

A former soldier was convicted on Tuesday for illegal possession of a sawed off shotgun because he turned it in to the local authorities after finding it near his home. "I thought it was my duty to hand it in and get it off the streets," said Paul Clarke, who was arrested at the police station where he turned over the weapon.

No evidence contradicted the defendant's testimony that he intended to assist law enforcement officers, and much evidence supported the story. Nonetheless, jurors took only 20 minutes to find Clarke guilty. Why? Because jurors were told that the law under which Clarke was charged was a "strict liability" offense, meaning that Clarke was automatically guilty of illegal possession regardless of his intent. This case is another example of how the erosion of traditional mens rea requirements in the criminal law is leading to the conviction of ordinary citizens.

CLARIFICATION: This incident occurred in England, a fact that should have been mentioned in the original post.

Bank of America Indictment Watch

The NYT today reports on newly disclosed emails between members of the Bank of America Board of Directors that reveal deep doubts about the wisdom of the banks ill-fated merger with Merrill Lynch. The same story reports that Rep. Edolphus Towns (D - New York), chair of the house oversight panel, is promising to subpoena individual board members in the ongoing congressional inquiry. New York Attorney General Andrew Cuomo has already broadened his investigation to include the board members.

Emails between board members reflecting sentiments such as "Unfortunately, it's screw the shareholders!" will only add fuel to this spreading investigative fire. But was this a board-driven snafu, or was Bank of America's hand forced by an overreaching Treasury and Fed? I argue the latter in an article titled "Banking on a Scapegoat" over at NRO.

Is Lobbying a Crime?

The Washington Examiner's Tim Carney argues that Jack Abramoff's colleague Kevin Ring is being unfairly prosecuted under the extremely broad federal wire fraud law for the legal act of lobbying in bad company.


Point of Law is honored to be hosting what should be a fascinating dialog on the expansion of corporate criminal law by two noted experts in the field: Professor John Hasnas of the McDonough School of Business at Georgetown University and Professor Michael F. Seigel of the University of Florida, Levin College of Law.

This free-wheeling discussion, titled "Criminalizing Corporate Conduct: How Far is Too Far," will take place in this space between Monday morning, July 27 and Friday afternoon, July 31. Expect different perspectives and new insights on this important legal and policy issue.


It has been, as we all know, a celebrity news week to make Ahmadinejad cheer. First, South Carolina Governor Mark Sanford returned from a mysterious disappearance to confess, on Wednesday, to an extramarital affair with a woman in Argentina. Then, a day later, Michael Jackson died of sudden cardiac arrest.

As a lawyer currently researching the exceptional breadth of the federal wire fraud law, my first thought upon watching Sanford's halting confession this Wednesday was: this man could be indicted for leading his staff to incorrectly believe that he was hiking the Appalachian trail this past week. Of course, I don't know whether Sanford did any such thing. If there is enough evidence to convince a grand jury that he might have, though, he could face charges under a federal law that criminalizes "any scheme or artifice" involving any phone or email communication that is designed "to deprive another of the intangible right to honest services," regardless of whether any victim was concretely harmed and regardless of whether any benefit was inappropriately gained by the deception. The so-called "honest services" extension of the federal wire fraud law was explicitly intended to police the fiduciary relationship between state and local pols and their constituents, though it is now frequently invoked against private employees as well.

Sanford seemed very careful, during his press conference, not to admit that he may have intentionally misled his staff so that they might pass the "Appalachian trail" story along to the voting public, which leads me to believe that he may be getting legal advice. If you think that lying to voters for political advantage is such ubiquitous behavior that it can't possibly be illegal, you are only half right. Not only does the wire fraud law probably cover such conduct, but it prescribes a prison sentence of up to 20 years - ironically, the same maximum sentence faced by Jackson when he was indicted (though later acquitted) in 2003 on 14 counts of child molestation, provision of alcohol to minors, and similar offenses.

This comparison raises troubling questions about both the scope of federal wire fraud law and about the proportionality of sentencing to the blameworthiness of a crime. Surely, the crimes of which Michael Jackson was accused are far more reprehensible than a lie offered to staff over the telephone by a desperate pol. But as Justice Scalia has warned, "this expansive phrase [in the wire fraud law] invites abuse by headline-seeking prosecutors in pursuit of local officials ... who engage in any manner of unappealing or ethically questionable conduct." Let's hope that that federal prosecutors exercise better sense in the case of Mark Sanford.

 

 


Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.