Fedya:
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).

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both the carrot (in its granting) and the most potent stick (in the implied threat that the tax-funded ad-spend will be withdrawn).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

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.)

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.

Ryan Waxx:
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.

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.

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.

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.

Ryan Waxx:
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 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).

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.

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.

Ryan Waxx:
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’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.

Vague in vogue?: 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.

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.

tarheel: 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.

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…

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

Caught the documentary Witch Hunt last night…

It’s a look at a string of at least 34 wrongful child molestation convictions in the 1980s in Bakersfield, California. …

If you ever want to show someone just how terrifyingly random and unfair the criminal justice system can be, sit them down and show them this movie.

PubliusFL: 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.

B-b-b-but that might involve actual investigation and reporting! You guys are REALLY not playing fair today, are you?

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.

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

There are now more than 4,000 federal crimes, spread out through some 27,000 pages of the U.S. Code.

Some years ago, analysts at the Congressional Research Service tried to count the number of separate offenses on the books, and gave up, lacking the resources to get the job done.

If teams of legal researchers can’t make sense of the federal criminal code, obviously, ordinary citizens don’t stand a chance.

Ryan Waxx: 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. 

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.

tarheel: 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.

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.

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.

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?

pete: 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?

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.

loki13:
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.

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.

loki13:
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?

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.

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.

Twirip: 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?

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?

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.

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.

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”.

We trust federal prosecutors to not use these powers to go after the “little people” (that’s what the state legal system is for )

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?

Fitzgerald is a good example of the over-zealous prosecutor, you just picked a poor case to illustrate it.

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.

loki13: State Law really is sufficient to successfully prosecute the heads of criminal enterprises, including white collar ones

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.

Fedya: 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).

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.

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.

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.

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