Fourth installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.
In a discussion on WAMU Radio yesterday, host Kojo Nnamdi noted that vagueness in the federal criminal law has recently made “strange bedfellows” of the political left and right. This same “emerging consensus” was also the subject of an insightful November 23 article by Adam Liptak, The New York Times’ Supreme Court reporter.
What has occasioned this coming together? As I mentioned here on Monday, individuals and organizations of all political stripes are realizing the danger to all when prosecutors are empowered with exceedingly broad and—worse—hard-to-define federal laws. A diverse coalition of groups—including the Heritage Foundation, the Federalist Society, the Cato Institute, the National Association of Criminal Defense Lawyers, and the ACLU, among others—have been sounding a clarion call against this species of executive expansion. They have pointed out that, from webmasters to fund managers, no segment of civil society is safe.
But this phenomenon is not new. As I document in Three Felonies a Day, the proliferation of vague laws—and prosecutions under them—began in the mid-1980s. Why has widespread recognition, especially from the American public, taken so long?
For one thing, the Department of Justice has a very effective public relations machine. With every major indictment, there is a press release and, not infrequently, a press conference that major national media typically attend with bated breath. Flanked by FBI, IRS, DEA, SEC, and members of the other myriad supporting agencies, prosecutors feed reporters the government’s side of the case, often a matter of hours after a hapless defendant has been rousted out of bed and paraded in the infamous “perp walk” (much to the delight of press photographers who have been tipped off in advance). At the end of this prejudicial circus-like performance, prosecutors often refuse to answer media questions on the ironic ground that they are bound by the federal court’s rules against pre-trial publicity and, in any event, they do not want to cause the public (especially potential jurors) to prejudge the case!
But the press corps itself is ultimately responsible for the one-sided coverage of what I call “three-felonies-a-day” cases (a reference to my new book, Three Felonies a Day: How the Feds Target the Innocent). The fact is that there is an unseemly relationship between the Department of Justice and much of the news media. While in some areas the press and the DOJ have developed an appropriately adversarial, or at least skeptical relationship, by and large the DOJ plays the press corps like a fiddle.
Consider the Houston Chronicle’s slanted coverage of the arrest, indictment, and trial of former Enron President Jeffrey Skilling, convicted in May 2006 on charges of conspiracy, securities fraud and depriving the now-defunct Houston-based energy company of his “honest services.” Vitriol for Skilling was not limited to the Chronicle’s opinion pages; news articles, sports stories, and columnists vilified Skilling well before his day in court. Despite affirming his conviction, the Fifth Circuit Court of Appeals ruled that the media coverage created a community prejudice against Skilling. The three-judge panel wrote (PDF) that the Chronicle published “nearly one hundred…personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron,” and that even “the Chronicle’s ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’” (Emphasis in original) In Houston, the so-called Fourth Estate played the role of prosecutorial lapdog.
The Supreme Court decided on October 13 to review the Skilling case as part of its trio of honest services cases this term, and one of the issues on appeal is the extent to which jury prejudice affected the verdict. But, if the previous hearing on honest services is any indication, the justices will use the Skilling case to look at the broader constitutional due process question surrounding the infamously vague 28-word fraud provision. Oral argument is set for March 1.
Another public figure, disparaged in the public eye even before he was indicted (much less convicted) will be intently watching the high court’s decisions in all three honest services cases. The prosecutor’s press machine has been so effective that even mentioning his name causes some to chuckle with derision. But the case of former Illinois Governor Rod Blagojevich deserves a closer look.
Illinois U.S. Attorney Patrick Fitzgerald framed the case, from the start, as an altruistic Department of Justice mission to clean up state and local politics. At a December 9, 2008 press conference, held shortly after Blagojevich’s early-morning arrest on a variety of political corruption charges, Fitzgerald announced his most sensational allegation: The governor deprived Illinois’ electorate of his “honest services” when he sought to sell to the highest-bidder the Senate seat vacated by Barack Obama. The headlines were, predictably, nationwide, in large type above-the-fold (or the on-line equivalent).
This discovery from the wiretap and bug planted by Fitzgerald’s agents in the governor’s office and home was deemed so threatening to the public weal that the prosecutors, rather than give the plot time to play itself out and result in an outright sale-and-purchase of the Senate seat, pulled the plug and arrested Blagojevich before any deal was consummated—or so the nation was told. At the press conference, Fitzgerald informed a rapt audience of newsmen that he had to act precipitously to prevent the governor from carrying through this “most appalling conduct” that was the pinnacle of the governor’s “political corruption crime spree.”
So the prosecution is for a “conspiracy,” or plan, to sell the Senate seat, rather than for an accomplished act. Without having to show that Blagojevich actually sold the Senate seat, and with the notoriously vague federal conspiracy law, securing a conviction is much easier. In a sense, no real crime is required. Yet neither the media nor the public questioned Fitzgerald’s motives for failing to wait until the Obama seat was actually sold. (Had such a sale taken place, of course, the Senate would surely not have seated the governor’s nominee. Hence, there was no good reason for Fitzgerald to fail to wait for the completed crime—except, as I suggest, that no such sale was in fact going to take place.)
Blagojevich has some quite different perspectives on his pre-arrest political machinations, which he sets out in a remarkable, even if unbalanced and in some places downright silly, memoir published after his indictment, entitled The Governor. The former governor claims that his motive for choosing Obama’s successor had to do with getting his political enemies out of the way of his legislative agenda. If Blagojevich’s account is to be believed, Fitzgerald pulled the plug prematurely not to serve the people of Illinois, but to save his own case. Had the matter been allowed to play itself out, says the former governor, it might have become increasingly obvious that what Blagojevich was doing was perfectly legal—even if unsavory to some refined sensibilities—Chicago politics. Indeed, Blagojevich tried, without success, to obtain the full, unedited eavesdrop tapes to play at his impeachment trial, claiming they would exonerate him, but was unable to do so due to Fitzgerald’s objection. At the very least, the tapes might have portrayed conduct deemed lawful, or at least acceptable under Illinois state law.
Blagojevich’s benign (even if unrefined) political explanation is lent credence by something Fitzgerald said during the December 2008 press conference. He noted that an Ethics in Government Act was pending in Illinois, scheduled to take effect January 1, 2009 that, according to Fitzgerald, “would bar certain contributions from people doing business with the state of Illinois.” And so, explained Fitzgerald, Blagojevich and his cronies “were working feverishly to get as much money from contractors, shaking them down, pay-to-play before the end of the year.” In other words, Fitzgerald appeared to be conceding that at least some of Blagojevich’s conduct was in accordance with state law as it stood at the time. Not a single reporter, however, pointed out that this “crime spree” was apparently occurring before the new ethics laws were enacted, and that the governor’s actions therefore conformed to and were permissible under state law.
Were these “crimes” the work of an arch criminal, or merely the machinations of a master political opportunist doing what Illinois law allowed? While it is true, of course, that the honest services fraud statute enables the feds to prosecute state officials for conduct allowed under state law—this is one of the statute’s problems that the Supreme Court presumably will rule upon in the upcoming cases—it is, or should be, difficult to brand a politician as on a “political corruption crime spree” if he is scrupulously adhering to the statutes and codes duly enacted by a sovereign state legislature.
Until we have a more skeptical press corps, the public discussion of whether and how federal prosecutions on the basis of vague statutes should be reined in is going to have to be conducted without the essential participation of an educated citizenry. This Fourth Estate cheering gallery is not what Thomas Jefferson envisioned.
Steve says:
Whoa, whoa, whoa. Just because the Illinois statute hadn’t yet gone into effect, that doesn’t mean pay-for-play was legal! The statute would have prohibited certain payments even in the absence of intent, but bribery is never legal. It’s really weak to argue that Fitzgerald conceded the conduct was legal under state law.
You can say what you will about charges like “theft of honest services” but this attempt to portray a conspiracy charge as some dubious newfangled concept is just bizarre. If a public official is going around soliciting bribes, it’s ok to wait and see if anyone takes the bait, but it’s certainly not a requirement.
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December 17, 2009, 3:10 amPersonFromPorlock says:
The purpose of journalism is to provide cheap, entertaining filler to go between the ads. The cheapest filler possible is canned news releases, photo ops and staged ‘events’, so of course these get the greatest play. Those wanting better press coverage of ‘their side’ need to work harder on providing the media with a no-cost/no-effort circus.
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December 17, 2009, 5:23 amHow the “Independent” Fourth Estate Has Failed in its Critical Duty | Liberal Whoppers says:
[...] is the original post: How the “Independent” Fourth Estate Has Failed in its Critical Duty Share this [...]
Laura Victoria says:
These points are not limited to the Fed. State laws and state prosecutors are big adherents, as well, to the conviction at all costs mentality. Ditto, local media, who are even more subject to the monopoly power on crime news held by local law enforcement and DAs.
I’d love to hear from DAs and AUSAs here who are out to do a good job or even just glean trial experience, rather than just get off on power trips. I know you are out there, though you may only represent a small percentage of the scum that take up this job.
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December 17, 2009, 8:35 amlgm says:
As a non lawyer, my impression is that the worst legal travesty going on in the US today is California’s three strikes law. This is true whether measured in the number of people effected or the cruelty and arbitrariness of the sentences. Number two travesty might be Texas executions of innocent people. Errors in the Blagojevich and Enron prosecutions seem far down the list, given the relationship between the damage they did to their (potential) sentences.
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December 17, 2009, 8:38 amFedya says:
Except that the ad-free media (eg. the BBC, Australian Broadcasting Corp., and other similar national outlets in other countries) are just as bad, if not worse, at simply regurgitating press releases from certain groups (environmental groups and Amnesty International near the top of the list).
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December 17, 2009, 8:38 amTweets that mention The Volokh Conspiracy » Blog Archive » How the “Independent” Fourth Estate Has Failed in its Critical Duty -- Topsy.com says:
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Tamerlane says:
Professor Silverglate seems to have a far more idealistic — or less jaundiced — view of the Senate than he does of DoJ. His confidence that a Democrat majority in the Senate which was then desperately sseking a filibuster-proof majority would have blanched at admitting a tainted Democrat senator from Illinois into their august midst seems unfounded to me.
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December 17, 2009, 9:02 amtarheel says:
If only the media had better reported the due process problems with “honest services” prosecutions, the public would never have been as outraged at Jeff Skilling as it was? Please.
I am never impressed by an argument that, as its thesis, blames the media for the outcome. Jeff Skilling and Blago had ample resources and opportunity to frame the story. The reason people take what the DOJ or any prosecutor says as gospel is because politicians since the beginning of time have won elections by being “tough on crime” and vilifying anyone who might criticize a government prosecution. That is not the fault of the media, as convenient a whipping horse as the media is these days.
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December 17, 2009, 9:05 ampireader says:
Since this series of posts started, I’ve been asking Mr. Silverglate for actual examples of persons prosecuted and imprisoned for innocuous conduct, due to vagueness in the laws.
This post offers up Jeff Skilling and Rod Blagojevich. If anybody wants to explain how either man’s actions were innocuous, I’ll listen.
Otherwise, I’m still waiting for Mr. Silverglate’s examples.
(Yes, I’m aware that some commenters offered examples. They were pretty weak ... see comments under the last post. But I’m particularly waiting for Mr. Silverglate’s, since without them his whole thesis and book must seem unconvincing.)
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December 17, 2009, 10:20 amSimon Dodd says:
They could expel the Governor’s nominee. On what basis could they have refused to seat him or her? Didn’t Powell v. McCormack settle that Congress can’t refuse to seat a duly designated member on the basis of “we didn’t like the cut of their jib”? I suppose one could develop a theory that the power to judge the “election” of a member applies to interim gubernatorial appointments pursuant to the 17th Amendment and a state’s enabling legislation, and argue that corruption in that appointment is a basis for judging that “election” invalid, but that is far beyond the limits of “of course” the Senate would have done this, that, or the other, isn’t it?
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December 17, 2009, 11:04 amAJK says:
Seconded. I’m certainly willing to be persuaded about the “three-felonies-a-day” thesis, but I’m going to need to see some really examples. If Blagojevich is really the best you can do, then the theory is looking pretty dead.
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December 17, 2009, 11:08 amyankee says:
You’re arguing that the media gave government prosecutors excessive credence and to prove it you cite Enron? It wouldn’t have taken a whole lot to convince me that this was a problem but you’re on the verge of convincing me it’s not.
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December 17, 2009, 11:16 amfishbane says:
I don’t disagree that the feds are good at exploiting press laziness. I don’t know enough about the Blagojevich case to have an opinion there. But as far as Enron goes, I don’t think you’re properly capturing what went on. Reciting the facts is enough to generate revulsion in nearly any sane person, and the press was mirroring that. The only way to keep a non-predujicial tone would have been, essentially, to suppress things like the recorded messages of traders talking about manipulating the California energy markets in crass and crude tones — actions that lead to extremely high energy costs, rolling blackouts and a couple of deaths.
Now, maybe this made it hard for Skilling to get a fair trial. This is probably true. It is interesting to note that folks seem only to be interested in powerful people not getting this fair shake, and have little interest in the thousands of folks railroaded for consensual crimes (take your pick of “sex offenses” between teenagers, people buying dope who suddenly become classified as dealers because of quantity definitions that are absurd or who happen to have both dope and cash on their persons, etc.)
That Enron was, in fact, a criminal enterprise is beyond dispute. It is possible, even likely, that many employees there were factually innocent of crimes. But when the facts are so obvious that simply stating them pre-disposes potential jurors, the problem isn’t the press.
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December 17, 2009, 11:30 ampete says:
I am now leaning towards this not being a problem.
This would not be the first time a guest commentator here has commented on a subject I was fairly agnostic about, but by the end of the week I was against their view. That happened when they had the person writing in favor of women in combat.
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December 17, 2009, 11:35 amFub says:
How about “exercise your First Amendment rights to publicly oppose a federal prosecution, and be investigated by a federal grand jury for obstruction of justice”?
Prof. Silvergate wrote about that too. Just not here.
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December 17, 2009, 11:47 ampete says:
So how would you rewrite the obstruction of justice laws to allow for actual cases of obstruction that would also prevent cases like the one you linked to?
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December 17, 2009, 12:02 pmAdam J says:
I’m with you yankee– I’m inclined to be worried about prosecutors exploiting the vaguaries of statutes, but Silverglate’s examples tend to show me that the vagueness has some merit– it will prevent, as he puts it “the machinations of a master political opportunist”. The next opportunist might be deterred from shady business because he can’t anticipate it being legal due to the vagueness of some laws– a good thing in my book.
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December 17, 2009, 12:06 pmChris Travers says:
I think there are two fundamentally separable issues here re: Jeff Skilling.
The first is whether the feds abused overly vague statutes in prosecuting him in some of the counts.
The second is whether he was properly convicted of other counts.
A quick skim through the indictment shows that Skilling was indicted on a large number of counts (35 I think), and that these ranged from securities fraud to this honest services fraud statute.
The allegations I think were valid had to do with improper and misleading accounting, and the fact that this was designed to mislead investors and the SEC. That is classic securities fraud, the guidelines are remarkably clear here, and I have absolutely no problem with this part of the conviction.
However, the honest services fraud count makes no sense to me. I would THINK that honest services fraud would mean depriving someone, not of money, but of an ability to obtain honest services for something. I.e. if they pay and you have no intention of performing, that is straight financial fraud. If they don’t pay but you keep leading them around so they don’t go to your competitor, that might be honest services fraud in my view.
Back when the assault weapons ban was up for renewal under W’s administration, I did my own research into it’s constitutionality. Among other sources, I found a number of articles on Findlaw suggesting that the enforcement pattern of the law was designed to ensure no defendant had standing to challenge its constitutionality (for example, by only prosecuting convicted felons for violations). Based on this, I concluded that having the law on our books was an affront to our rule of law.
I think the same thing about this law. If it were interpreted narrowly, I would suggest it would be quite constitutional. However, for it to include any malfeasance of a director or executive of a corporation, as in this case, makes it too broad. I can see how Skilling might have been guilty of fraud. I cannot see how this wouldn’t just be limited to financial/securities fraud.
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December 17, 2009, 12:10 pmyankee says:
The problem also isn’t the press when the defendant’s case is based on an incredibly implausible “incompetent CEO” defense. Skilling’s prosecution isn’t a case where a bit of independent investigation would have shown the prosecutor’s claims were highly dubious, but the press took them at face value anyway. There was plenty of press scrutiny and the case against Skilling was extremely strong.
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December 17, 2009, 12:11 pmlawdevil says:
“but this attempt to portray a conspiracy charge as some dubious newfangled concept is just bizarre”
So true. Was Silvergate asleep in Crim Law. Conspircy: The crime is the agreement!
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December 17, 2009, 12:20 pmDuracomm says:
Fishbane said,
Where did you get the information that allowed you to conclude that enron was a criminal enterprise? From the overheated media coverage or some other source?
How much information is available outside of the traditional media outlets?
There is a reasonable argument that the failure of enron was caused by type of company it was not by criminal acts. Bank runs would be another example of this.
Maybe the solution is to regulate the risk profile of trust based businesses before they collapse instead of prosecuting company executives after they collapse.
I’m not sure what the truth is but I suspect it is not as clear cut as the media narrative has been.
That pesky trust-based business model
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December 17, 2009, 12:22 pmNickM says:
The Henry Samueli prosecution (allegedly unlawfully backdating stock options) is a far more apt case. The district judge (C.D. Cal.) just threw it out for prosecutorial misconduct that sounds a lot like witness tampering.
I’m with Steve on his point that pay-to-play was already illegal, and that the new laws Blagojevich was trying to evade were just designed to make pay-to-play impossible to commit without blatantly violating other laws as well.
Nick
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December 17, 2009, 12:26 pmfishbane says:
Where did you get the information that allowed you to conclude that enron was a criminal enterprise? From the overheated media coverage or some other source?
Some of it, indeed, was from the media. For instance, the Seattle Times offered up recordings of traders talking about manipulating the California electricity market, which led to the rolling blackouts I experienced when I lived in San Francisco. Unless you’re positing that the “overheated media” fabricated those recordings, I have trouble understanding how one can come to any other conclusion about what they were up to.
Some of it, not from the media. For instance, you are welcome to read from a rather large dataset of email from Enron and draw your own conclusions, as I did.
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December 17, 2009, 12:34 pmloki13 says:
I’m going to build a little on what Fishbane has alluded to.
Let me propose a theory–
Let’s say that, under current state criminal laws, it might be hard to prosecute “the big fish.” You know– corrupt politicians, corrupt CEOs, drug kingpins (assume for a moment you’re against drugs) etc.
Then the “somewhat ambiguous” federal criminal laws is a way of prosecuting these people for actual crimes which they would otherwise evade.
We trust federal prosecutors to not use these powers to go after the “little people” (that’s what the state legal system is for :) ).
–So, if you buy this theory, then it seems that employing Blago and Skilling as your examples would be.... not in your interest.
(As a side note, what would be in your interest is showing that federal prosecutors cannot be trusted with the power, and are using it to go after the “little people”... IOW–
a. State Law really is sufficient to successfully prosecute the heads of criminal enterprises, including white collar ones AND
b. That Federal Prosecutors aren’t cabinning their prosecutions to those who are most amenable to Federal Prosecution.
I haven’t really seen that. I started out in agreement with you. This latest post has, strangely enough, made me re-think my position.
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December 17, 2009, 12:36 pmPersonFromPorlock says:
Point taken. But I still say the (present-day) purpose of journalism is to produce cheap, entertaining filler, even if what it goes between is non-commercial or, in some cases, just more journalism.
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December 17, 2009, 12:43 pmpete says:
I would think that Enron in particular would be appropriate for federal prosecutors instead of state since it actually is regulating interstate commerce. Traders in Texas were manipulating electricity markets in California by using electricity from other states.
And with state and local government corruption issues you have the problem of local law enforcement not wanting to investigate because either they are in on it or they do not want to risk the fallout from taking on people who potentially can take jobs/funding away or cause them to lose an election.
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December 17, 2009, 12:48 pmDuracomm says:
Fishbane,
The original post was about skilling’s prosecution for honest services violations and the coverage of enron in Houston.
I don’t think it was ever alleged (correct me if I’m wrong) that skilling knew about the california market manipulation nor was it part of the prosecution of skilling in houston.
The califonia market information is interesting but it has nothing to do with the original topic which was the media coverage of the enron collapse or the prosecution of skilling in houston.
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December 17, 2009, 12:51 pmTwirip says:
A good basic point is weakened here by using Blagojevich as Exhibit A.
Fitzgerald is a good example of the over-zealous prosecutor, you just picked a poor case to illustrate it.
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December 17, 2009, 12:52 pmTwirip says:
That is the way things work sometimes, but I’m not sure it’s the way things should work. It’s not exactly “better that ten guilty persons escape than that one innocent suffer”. That attitude says “we already know that so-and-so is guilty, so it’s all right to convict him on questionable grounds”.
Do we really want to live in a country in which every one of us is “guilty” of a crime and our fate depends entirely on the discretion of prosecutors?
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December 17, 2009, 1:01 pmfishbane says:
The original post was about skilling’s prosecution for honest services violations and the coverage of enron in Houston.
You were taking issue with my characterization of Enron as a criminal enterprise, and asked me for sources. I provided a couple of them.
Although I was following the case at the time, it has been a while, and in any case I don’t specialize in the theory or application of honest services law (and am not, in any case a lawyer), so I can’t speak to that. What I was talking about was that, Enron was, in fact, a criminal enterprise, so at best one can argue that Skilling was prosecuted for what they could get rather than what he was doing, in a sort of Al Capone tax evasion thing.
Additionally, the case against Skilling was not just honest services, and was extremely strong even if you discount that portion of it. See Chris Traver’s comment above on that point.
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December 17, 2009, 1:02 pmloki13 says:
No, I don’t. That’s why, philosophically I started by agreeing with the general thrust of the OP’s arguments.
But, to parrot a favorite quote– Yes, that’s how it works in practice, but how does it work in theory?
Do you have much experience with our criminal justice system? It has some amazing protections– for those who can afford to use them. OTOH, in practice, it has heavily weighted against those who cannot. There are a few disparate arguments going on here:
1. When is it appropriate, in our federal system, for the Feds (as opposed to the state) to prosecute for a crime. I think political corruption and crimes that go acros state borders (like Enron) are, arguably, the best examples of those crimes that the Feds are best situated to prosecute.
2. How vague should a criminal law be? And how much of a problem is this? To give an example, you could look up any website and see example of “crimes” that are on state books but are never prosecuted (from adultery to eating ice cream on Sundays). There should clearly be a dividing line between a law that says, “Do not do bad things” which gives no notice, vs. laws that are too detailed (imagine trying to write, say, a murder/homicide statute that listed every possible way to kill someone) and would necessarily omit some things.
3. Given this tension, the necessary practical question becomes whether laws are so vague that prosecutors are using this vagueness to persecute people. I’d like to see evidence of that.
4. As an aside, and referencing point 2, I am sure that most of us, after thorougly perusing our state codes, would find that we are violating state laws on a daily (if not hourly) basis. Are we merely existing at the sufferance of our state prosecutors as well?
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December 17, 2009, 1:31 pmVague in vogue? says:
I’m very sympathetic to Silvergate’s ostensible thesis, but he hasn’t been making his case very persuasively (particularly in this last post).
Focusing on prosecutions does lend concreteness to the examples, but there seems to be a real risk of missing the the forest for the trees. I expected more of a discussion of why having vague laws on the book, even if there is a history of fairly narrow enforcement patterns, is problematic because it potentially criminalizes ordinary malum prohibitum–type conduct. If you look at the history of conlaw challenges to state statutes, there are plenty of examples of [mostly] unenforced laws that — despite being generally unenforced — are/were still arguably problematic.
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December 17, 2009, 1:47 pmVague in vogue? says:
The issue is not merely the vagueness of the law, but also its reach. An incredibly vague law that only applies to an extremely narrow class of people is (in terms of practical consequence if not of justice) less worrisome than a law that applies to 150 million people.
Leaving questions of existence to philosophers, I think it obvious that
If
a) The law in question establishes certain factual predicates
b) These factual predicates, if met, entail criminal liability
c) You meet these factual predicates
Then this entails criminal liability.
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December 17, 2009, 2:01 pmFub says:
Good point if the discussion is narrowly focused on vague statutes. But the greater issue is prosecutors’ ability to haul anybody before a grand jury just to silence them. It’s just another facet of the ham sandwich phenomenon (a good prosecutor can get a grand jury to indict a ham sandwich), which vague statutes make even worse.
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December 17, 2009, 2:06 pmRyan Waxx says:
I think that in part, commenters here aren’t getting why Silvergate used Enron as an example. Enron is a perfect example of how extreme media coverage can get. It certainly would have been a nicer example if the targets of all that media attention hadn’t been as guilty as sin of the charges against them, but there aren’t many examples of “innocent on all charges yet media firestorm” that’s available out there.
He needs an example that meets all 3 of the following:
1. innocent on all charges
2. yet there is a media firestorm
3. must illustrate the vagueness problem
I can’t think of any example that fits his needs perfectly. For example the Duke Lacrosse case is one of the very few that has 1 and 2, but obviously has nothing to do with 3. So he chose an example that illustrates 2 and 3, but not necessarily 1 (which wasn’t the topic of that paragraph anyway).
Can anyone think of an example that meets all 3?
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December 17, 2009, 2:53 pmRyan Waxx says:
The only one I can think of that meets all 3 is the Lori Drew case (breaking terms of use = felony), but the OP’s book already has that example and he appears to be trying to use fresh material for these blog posts.
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December 17, 2009, 2:59 pmtarheel says:
Ryan Waxx —
I understand your point, but if it is so hard to find an example that meets all three criteria, maybe it really isn’t that much of a problem.
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December 17, 2009, 3:15 pmRyan Waxx says:
Perhaps, but please keep in mind that “media firestorms” are in fact a fairly limited data set. Firestorms in which the target is in fact innocent are in “count on one hand” territory. That doesn’t mean that the media don’t play a negative role in other, more obscure cases, and perhaps the OP would be better served choosing one of those.
But then it would be harder to point out the negative effects, since they would be more subtle. His post is intended to point out the negative effects, and his example actually does that.
Is it your opinion that the media cannot have highly prejudicial effects against a guilty person? I remind you that even guilty people are entitled to a fair trial.
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December 17, 2009, 3:47 pmPubliusFL says:
Indeed, when the defendant is likely actually innocent, the problem may be the lack of a media firestorm. Cases where media coverage is limited to a few short stories parroting the prosecution’s press releases, with no effort made to look behind the allegations.
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December 17, 2009, 3:57 pmDuracomm says:
Tarheel,
The problem is the statutes are so broad that it is impossible to know if you are breaking the law.
Gene Healy: Making criminals out of all Americans
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December 17, 2009, 3:57 pmtarheel says:
Duracomm, I am not disputing that part of the claim. I am objecting to the part wherein the blame is placed on the media for that problem.
Ryan Waxx, of course there are those very rare cases where media attention has some negative effect on the outcome of a criminal case. There are more cases where the lack of attention has a negative effect. In either case, the problem of a prosecutorial state run amuck should be blamed on the state, not the media.
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December 17, 2009, 4:14 pmRyan Waxx says:
B-b-b-but that might involve actual investigation and reporting! You guys are REALLY not playing fair today, are you?
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December 17, 2009, 4:15 pmCurt Fischer says:
Maybe Richard Jewell would be another example worth considering? He was cleared of all misconduct and yet was subject to an overzealous media firestorm which resulted from an FBI “leak”. However, I’m not sure that he was charged with anything. The “FBI was [merely] treating him as a possible suspect”, says wikipedia.
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December 17, 2009, 4:17 pmDuracomm says:
Another example of media failure is the slew of wrongful child molestations convictions.
Media driven public hysteria had enormous negative consequences for many innocent people.
The media did not act as a finder of facts in the situation particularly regarding in the cases that involved alleged “ritual satanic abuse”.
What they did do was fan the flames of hysteria.
Witch Hunt
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December 17, 2009, 4:22 pmRyan Waxx says:
Forgive me, but I read the OP’s post as saying that reporters have an affirmative duty to serve as a check on a rogue prosecution, not passively act as a bullhorn for the government because that’s where the easy-to-get press releases come from.
Certainly the government should do a better job controlling prosecutors. But as long as the press fancies itself “the fourth estate”, they’d do well to act like the position has responsibilities to go along with the rights.
Of course, I’m open to the argument that the press’s flaws renders it the wrong tool for the job, and therefore they should drop this “fourth estate” nonsense posthaste and stop pretending they have “special” rights that only apply to the large media companies, not to the average citizen...
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December 17, 2009, 4:24 pmloki13 says:
Well, yes. But this gets to the core of the problem. Why isn’t there a huge rush to overturn laws that specifically tell you what you are doing wrong, yet everyone violates anyway, because they are never (and I mean never) enforced? Because... in practice, they’re not a problem. Just like in practice, a law that might be somewhat vague is not vague if enforced specifically. But that runs into the danger of “Don’t do bad things”. Then again, that wasn’t that much of a problem under common law criminal justice. :) I have more of an issue when, as pointed out supra, it’s used against malum prohibtum.*
So I guess that’s where I’m having an issue here. In theory I agree with the OP. In practice, per the evidence of these posts, he’s managed to change my opinion so now I’m against him. Go figger.
*IOW, it’s not like Blago or Skilling didn’t realize they were doing something wrong, as opposed to merely running afoul of some obscure regulation.
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December 17, 2009, 5:04 pmFedya says:
I’d argue Martha Stewart, although I’m sure a lot of people would disagree.
I wish I could remember where I read the article that claimed Wicked Eliot Spitzer got surprisingly few convictions when cases actually went to trial. (His use of the court of public opinion, with the fourth estate being willing accomplices, led a lot of people to accept plea bargains.)
I thought the article was at Reason, but I can’t find it there. Instead, you might enjoy this piece on “Baby Einstein” that references how we might just have too many laws.
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December 17, 2009, 5:18 pmSteve2 says:
Re: Richard Jewell, and also thinking of the USS Iowa turret explosion... are there penalties (demotion/docked pay/firing/jail time) for leaking things, or did the Pentagon Papers case eliminate those?
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December 17, 2009, 8:53 pmTNeloms says:
I think many commenters would also like to have:
4. might apply to a large proportion of the population (especially your average Joe)
This sort of implies (or is related to):
4b. the entire behavior was seemingly innocuous
It’s definitely a problem if prosecutors are overzealous with prominent people who did bad things, but it’s a totally different type of problem if this actually affects the average citizen minding his own business not thinking he’s doing anything wrong.
I’m pretty sure this is a central aspect of Silverglate’s thesis, or at least the attention it’s getting, and it’s also part of what pireader is trying to get above (and in previous posts).
I agree that the prosecutors were overreaching with Lori Drew, and that it would have been scary had they succeeded. But they didn’t succeed, and the result was that a despicable women was unfairly put through an ordeal, which is bad, but doesn’t really leave me (or most people) fearing persecution due to vague laws.
The lesson of Lori Drew seems to be that we should encourage judges to not interpret laws to be overly vague and broad, discourage prosecutors from attempting these interpretations, and encourage lawyers like Orin to keep up the good work, not that we should rewrite or eliminate tons of federal laws.
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December 17, 2009, 9:27 pmRyan Waxx says:
Well, I guess it partly depends on weather Joe Average wants to try and start a business. An entire category of “gotcha” laws start applying to you if you try that. Problem is, the knowledge that the laws start getting obnoxious at that time doesn’t help if the public’s response is to not start a business at all.
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December 17, 2009, 9:54 pmTNeloms says:
Well, “a large proportion of the population” covers business owners. And by “apply” I really meant “might apply” which includes people who might otherwise start a business if it weren’t for the threat of prosecution over innocent behavior under vague laws.
The point is simply that most or all of these examples don’t impact most people (including impacting their decisions to engage in normal activities), especially those who are under the impression that what they are doing is innocent.
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December 17, 2009, 10:32 pmTNeloms says:
By the way, I think the case of David Henson McNab, the Honduran businessman who was pretty much going about his business, probably qualifies: http://www.theatlantic.com/doc/200704u/nj_rauch_2007-04–03.
I haven’t been able to find any update on this since 2007 (presumably his sentence has ended by now), and maybe there’s another side to the story. But if the story is what it seems, it’s pretty horrible and more worrisome to most people than Rod Blagojevich being possibly treated unfairly.
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December 17, 2009, 10:38 pmChavez says:
“Until we have a more skeptical press corps”
Amen to that. The Duke lacrosse case should have been over the day DNA testing revealed that none of the players had any contact with their accuser. (That was a full week before anyone was arrested in that case.) But the story was too good, and too politically correct, to let it go that easy.
So for another year, no matter how thin the gruel served up by Nifong, the media continued to act as if they were at a feast. (That’s because we trust prosecutors, and “he must have something” became the mantra of the press corps; even though it was obvious,
and been for months, that he couldn’t possibly “have” anything.)
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December 18, 2009, 7:24 amMorning Links | The Agitator says:
[...] his continuing guest sting over at the Volokh Conspiracy, Harvey Silverglate damns the press for its complacency and lack of skepticism in federal criminal [...]
Diogenes says:
The privately-owned media are part of the entertainment industry — and government-owned media are part of the State’s political machinery.
Anybody who thinks otherwise is naive in the extreme.
Increasingly, even the entertainment function of the ‘news’ media is being suborned.. .as ad revenue from private sources declines, government steps up with ‘public service’ announcements — which in turn gives them a control lever over the purse strings of the media outlet concerned (you should see Australian ‘commercial’ TV these days — about one advert in 3 in prime time is from a government instrumentality: if it’s not the pigs telling you not to speed, it’s the government’s “WorkSafe” OHS crowd telling you not to stand on chairs in the office).
The government has always had the ‘licensing’ stick (the FCC in the US is a case in point... getting all het up about Janet Jackson’s tit while ignoring the much more depraved echo chamber for war) — but the media moguls know that they can get around legislative problems by the simple expediant of buying political favours. Thus ad-rev is now both the carrot (in its granting) and the most potent stick (in the implied threat that the tax-funded ad-spend will be withdrawn).
The whole ‘dedicated discoverer of truth who takes on the powerful’ is a schtick that is far rarer than is imagined in the ‘mainstream’ media. One, maybe two stories a generation, cast in front of the numpties in order to perpetuate the myth... while male escorts and children get delivered to the White House (THERE’s a story that disappeared beneath the waves during the Reagan/Bush years).
Cheerio
GT
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December 18, 2009, 6:53 pmDBKP REPORT says:
[...] Philippine volcano gets louder, could erupt soon Taylor Swift voted AP entertainer of the year How the “Independent” Fourth Estate Has Failed in its Critical Duty [...]