INSIDE
appeared on the game show “Jeopardy!”
Photos copyright Jeopardy Productions, Inc.
going on the offensive since the At-
Discu ssio n wi th t h e New Dean torney General’s primary victory,
M M S HLS’
resting on its laurels for a presumed
ARTHA INOW PEAKS ON victory in the last round of the spe-
The HL Record C , A
cial election, scheduled for January
HALLENGES CCOMPLISHMENTS 19th.
By contrast, Brown, a State Sena-
BY JENNY PAUL tor from Wrentham, has been erod-
News ing Coakley’s most serious
• World at Most Peaceful Ever? Dean Martha Minow took the helm of advantage in the primaries, name
• Posner on Financial Reform Harvard Law School at a time when a recognition, by barraging the air-
• Judicial Elections Corrupt? dwindling endowment and university- waves two controversial ads. The
wide budget cuts have forced the school first aped the image of former Pres-
Opinion to employ cost-cutting measures. ident John F. Kennedy, who had
Minow assumed the deanship on July himself held the Senate seat later oc-
• India Buries Kashmir Dissent
1, inheriting a much tighter budget than cupied by his brother Ted. It begins
• Nigerians Condemn Terrorist
in years past. At the law school, each with raw footage of President
department had to trim its budget by 10 Kennedy appealing for tax cuts, and
Features percent, after projections showed that then morphs into an image of Brown
• The Fabulous Return of Fenno the law school could expect to receive finishing his words, before Brown is
• A Church Closes on Christmas $10 million less from the endowment in shown in color saying that tax cuts
• Photos: Winter Near and Far fiscal year 2010 than it received in could help grow the economy.
2009, according to a July HLS press re- By reminding voters of the former
lease. Howell Jackson ’82 was acting President’s tax policy, Brown’s ad
dean at the time the budget cuts and was clearly intended to tie his candi-
FOLLOW HLRECORD ON
other staff reductions were announced. dacy to the legacy of the Kennedy
Still, during her first months as dean, family – a mantle a Republican was
Minow, cont’d on pg. 3
Dean Martha Minow Election, cont’d on pg. 3
Page 2 Harvard Law Record January 14, 2010
Feds, cont’d from pg. 1 sibility of determining the scope of conduct prohib- medical practice. “The Department [of Justice] has
ingly come to rely on vague criminal laws to investi- ited by vague laws, with Silverglate’s probing rheto- drug warriors controlling medicine now.” As a result,
gate and indict professionals in the fields of medicine, ric drawing the reader into the suspension of their physicians are subject to “SWAT-team style arrest and
politics, law, business, journalism, and non-profit presumptions. Thus the reader comes to understand a … lurid smear tactics” for conduct which falls right at
service for a range of practices that have not histori- well rounded defense of each individual’s actions on the intersection of responsible medical practice and
cally been criminalized. The reasons for these pros- personal, ethical, and legal grounds. the federal regulation of prescription medications.
ecutions range from the self-aggrandizing desire of The case-by-case style of the book could become And once an indictment has been brought, prosecu-
prosecutors to impose standards of professional con- monotonous if it were not for Silverglate’s impres- tors frequently seek to freeze assets and coerce testi-
duct on other economic domains to the crass abuse of sively researched details, deeply sympathetic anec- mony out of co-defendants in order to procure a swift
power for purely political motives. dotes and personal reflections that provide valuable plea bargain rather than going through a full trial.
Silverglate’s latest book chronicles some of the insight into the facts and circumstances of each case. Given the extensive investigative authority of the fed-
In this way, Three Felonies A Day eral agents, friends and coworkers may quickly turn
sacrifices objectivity for rhetorical against one another and become cooperating wit-
force. As we are led through a nesses, even when their testimony is potentially fab-
gallery of the egregious abuses of ricated to arrange a plea bargain. “Like Alan
prosecutorial authority, Silverglate’s Dershowitz says, witnesses learn not only to sing, but
unvarnished criticism of the Depart- to compose.” To Silverglate, these coercive tactics
ment of Justice belies his criminal and the seizure of assets pending litigation constitute
defense and civil libertarian roots. a denial of the constitutional right to a fair defense.
But for every ounce of bias injected Although prosecutors sit at the front lines of what
into the presentation of the book’s Silverglate sees as the Department of Justice’s abu-
individual cases, its central thesis, sive decision making, he believes that the entire fed-
that power is being routinely eral criminal justice architecture has been infected
abused, inspires ever greater anger with a culture of aggressive prosecutions. He is skep-
and resentment. tical of any real change coming under Attorney Gen-
As a call to action, Silverglate eral Holder, because like his predecessors for the last
avoids pretentious lectures on the- few decades, Holder began his career as a front-line
ory or overly technical dissections prosecutor. And the courts, says Silverglate, are just
of particular legal arguments. The as unlikely to be the source of change. “Judges, nine
strength of his argument lies in the times out of ten, are former D.O.J. honchos.” Given
traditional toolbox of the defense at- the institutional momentum sustaining these practices,
torney. He presents the facts and es- Silverglate believes the only real change must come
tablishes a narrative in each case from the political process.
that allows the reader to feel that, To his great surprise, says Silverglate, his message
“There, but for the grace of God, go has had a widely positive cross-party reception, even
I.” Each case is supported by legal by figures he never expected would agree with him.
arguments, analyzing the theory of “Liberals, libertarians, and Republicans alike have
the case to find an interpretation of been very positive,” says Silverglate. His message,
facts and law in which the acts of that the law should provide greater transparency and
the defendant were in line with a prosecutions be brought only in cases of clearly crim-
reasonable interpretation of their inal conduct, is one that supporters of constitutional
legal duties. In this way the book rights and of limited government can unite behind.
succeeds in ad-
most prominent and controversial federal cases he has vancing persuasive interpretations of
witnessed throughout his career, whether during his the law to lawyers and legal insiders
own practice or in the headlines. As he lays out the while at the same time giving educa-
facts of each case, Silverglate takes his reader into the tional background to a more general
mind of a top defense attorney to see past the head- audience.
lines and the presumption of guilt to demonstrate how Many of the cases are so recent
in one case after another the Department of Justice that they have either not yet been fi-
has demonstrated unscrupulous and overzealous use nally resolved or the aftermath is still
of creative criminal indictments to intimidate the in- unfolding in the headlines. Silver-
nocent and coerce false testimony and plea bargains glate presents the well-publicized
from its targets. prosecution of Massachusetts House
The problem, says Silverglate, is that the criminal Speaker Thomas Finneran as a case
statutes that were originally written to empower fed- of prosecutorial zeal and coercive
eral prosecutors to pursue organized crime have be- tactics bringing ruination to an un-
come malleable putty that can be shaped by a skilled blemished career, largely for making
prosecutor to bring an indictment against almost any- a statement which was arguably not
body. Combined with a vast regulatory state and stiff false and probably not injurious to
sentencing regimes put in place for the war on drugs, anyone. But the Finneran case
the federal criminal justice system has degenerated stands out partly because of the
into a “thugocracy.” Even an extraordinary effort to transparent motives of the prosecu-
conform to statutory and regulatory rules may be in- tors. As a component of his plea bar-
adequate to prevent a prosecution, as in the case of gain to avoid spending time in
Lee Leichter, who was convicted of violations of the prison, Finneran was forced to agree
Medical Device Amendments to the Food, Drug, and not to run for public office for at
Cosmetics Act. Despite his conviction being reversed least five years, an agreement that
on appeal, Leichter’s life was devastated by the fi- Silverglate finds not only excessive
nancial and professional cost of his criminal defense. and unethical but probably unconsti-
In a recent interview with the Harvard Law Record, tutional.
Silverglate said that he wrote the book, “Because I Just this week, the Massachusetts
thought it was important to pull back the curtain on Supreme Judicial Court denied
some of these practices.” Finneran’s appeal of the revocation
To many readers, the book will read like a highlight of his license to practice law. Sil-
reel of the most prominent and challenging cases to be verglate said that this latest loss
brought in recent years. Whether examining the demonstrates the lasting damage in-
Enron scandal and the ensuing demise of Arthur An- flicted on a public servant who be-
dersen, the prosecution of investment superstar came the target of prosecutors not
Michael Milken, the conviction of Martha Stewart, or due to any pattern of illegal activity but merely for With an impressive roster of endorsements from legal
the battle over assisted suicide in Gonzales v. Oregon, having been in a position of power and public scholars and practitioners, including Alan Dershowitz,
546 U.S. 243 (2006), Silverglate deftly combines the scrutiny. “It pays to be paranoid when you can be Susan Estrich ‘77, Bruce Fein ‘72 and Michael S.
legal sophistication of a criminal defense expert with prosecuted for these kinds of things.” Greco, Three Felonies A Day could become an im-
the plain speech and driving narrative of a journalist. For doctors, Silverglate sees the unwelcome over- portant book in the public debate over the need for re-
Each chapter is woven together with the consistent sight of prosecutors as a cause for both professional form of the justice system and the proper role of
themes of prosecutorial overreaching and the impos- concern and a serious impediment to responsible prosecutors in shaping the law.
January 14, 2010 Harvard Law Record Page 3
Election, cont’d from pg. 1
otherwise unlikely to inherit. In the Democratic pri- factors. ported a possible one-point Brown victory, using a
mary debates, the candidates had scrapped audibly These included not only statewide name recogni- sample size around the same size of the Globe’s. The
over which best represented a continuation of the tion (Coakley was the only candidate to have been PPP poll also seems to show the number of undecided
prominent political family’s legacy. elected statewide and is from the western part of the voters shrinking, indicating that they – and likely
In a second ad, Brown contrasts his stance on taxes state, boosting her popularity there), but her early other independents – had shifted to Brown.
to Coakley’s, quoting her saying “we’ve got to get entry into the race, and extremely low turnout – in part According to the press release included with the
taxes up”. Coakley allies have cried foul, saying due to the election’s unorthodox date, proximity to the poll, entitled “Senate Race Competitive,” a declining
Brown took Coakley’s words – meant to refer to tax holiday season, and even cold weather. Coakley also number of likely voters were those that had voted for
revenue, rather than rates – severely out of context. had the advantage of an established base of women, President Barack Obama ’91 in 2008, indicating that
A similar criticism could be applied to Brown’s who are eager to see her become the state’s first fe- dissatisfaction with sitting Democrats might influence
Kennedy ad, which refers to a policy adopted by male senator. turnout, as it had during gubernatorial elections in
Kennedy during a period of relative economic pros- If enthusiasm for the race remains as low as it had New Jersey and Virginia last fall, where Democrats
perity, when the country did not face a crisis of bal- been in the primary period, these same conditions were felled by Republican insurgents. National Re-
looning debt at least partly attributable to the should lead Coakley to victory once more. And Mas- publicans have been pointing to those races, and
enthusiasm for tax cuts shown under the George W. sachusetts’ registered Democrats also outnumber Re- Brown’s gains in the hitherto impregnable Demo-
Bush administration and its Republican Congresses. publicans more than three to one. The expected low cratic stronghold of Massachusetts, as evidence of its
During that period, tax cuts failed to increase sluggish turnout could increase the probability that the long- good chances in this fall’s upcoming 2010 midterm
growth and job creation, problems that were only ex- time frontrunner and candidate whose political ma- Congressional elections.
acerbated by the global financial crisis and deep re- chine is the most well-oiled will be able to achieve But absent from the PPP poll’s choices is inde-
cession that have developed in the last year and a half. victory. pendent candidate Joe Kennedy, who has no relation
Coakley has largely chosen the high road, however, The Boston Globe’s poll, which was conducted with to the Kennedy family, but whose confusing name
airing more and more ads emphasizing her positive a larger sample size than Rasmussen’s, and which, might have some influence on the outcome of the
contributions to financial regulation and plans to re- crucially, sampled likely voters, actually showed race. The Globe poll showed Kennedy pulling 5%.
make Wall Street. But if they display a firm grasp of Coakley with a 15 percent lead. Her lead grew to 17 Moreover, PPP, while affiliated with Democrats,
the nation’s financial and economic problems, Coak- points if those merely leaning toward voting for her shares a suspect phone-touch methodology with Ras-
ley’s ads lack charisma and pizzazz. They seem un- were included, the paper reported. mussen.
likely to generate enthusiasm for a candidate whose Alarmingly for Democrats, however, the Public
primary victory was largely attributable to structural Policy Polling (PPP) service has subsequently re-
Record
New Delhi’s Pretensions to Democracy
BY ANIL CHOUDHARY dreds of unidentified graves — be-
lieved to contain victims of unlawful
EStabLiShEd MCMXLVi Nearly 2,600 bodies have been dis- killings, enforced disappearances, tor-
covered in single, unmarked graves and ture and other abuses — to no avail.
in mass graves throughout mountainous The starkest feature of these recent
Matthew W. Hutchins
Editors-in-Chief
Indian-controlled Kashmir. The Inter- findings is that there was no coverage
Chris Szabla national People's Tribunal on Human of the report by the Indian media. Hav-
Rights and Justice (IPTHJ), an Indian ing stumbled upon this shocking report
News: Rebecca Agule Kashmir-based human rights organiza- in the New York Times when sitting in
Staff Editors
Opinion: Jessica Corsi tion, claimed that they found the graves the U.S., I sought the perspective of the
Sports: Mark Samburg in 55 villages during a three-year sur- Indian media. To my disbelief and hor-
vey that concluded in November. Out ror, there was not even a single mention
Contributors of the 2,600 graves discovered by about this report in all the leading In-
Siyuan Chen IPTHJ, they claim that 177 graves held dian dailies and news channels, while
Anil Choudhary more than one body. This report is one all of the major international media
Nathaniel Fintz of the most damning pieces of evidence groups had covered the story.
Aminu Gamawa
of the ‘crime against humanity’ perpe- So what does this tell about Indian
Nicholas Joy
trated by the Indian armed forces in democracy? The truth of brutalities in
Jenny Paul
their occupation of the disputed terri- Kashmir have always been kept a secret
tory of Kashmir. to the nation. The Indian state has, for
record@law.harvard.edu The Muslim-dominated region of Mass graves found in Kashmir in 2008. 2,600 fresh
decades, been suppressing the largely
Submit Letters and Editorials to:
graves were discovered last year. Photo copyright
or Kashmir has been a disputed territory International Tribunal for Human Rights and Justice non-violent dissent of Kashmiri people
Harvard Law Record right from the independence of India in Indian-administered Kashmir. against the militarization of Kashmir.
Harvard Law School and Pakistan in 1947 and has been the the largest democracy in the world. In- The Indian state has used the divisive
Cambridge, MA 02138-9984 source of conflict for more than half a dian democracy prides itself on free- propaganda of militancy and religion as
century. While both countries claim the dom of speech and expression and the tools to suppress any kind of dissent
Letters and opinion columns will be region, it is the civilian population of right of its people to dissent. But the against its forced occupation of the re-
published on a space-available basis. Kashmir that has paid the price of the manner in which the dissent of the gion. The Indian state has tried to keep
The editors reserve the right to edit conflict. In contested claims, more than Kashmiri population has been crushed not only the international community in
for length and delay printing. All 68,000 people have lost their lives in illustrates that India still has a long way the dark about its hostilities toward
letters must be signed. Deadline for Indian-occupied Kashmir in the past to go to be a real functional democracy. Kashmiris but also the local Indian pop-
submissions is 11:30 p.m. Tuesday. two decades alone and have witnessed Over the past couple of decades, it has ulation, by controlling media reports of
three conventional wars. been alleged by various human rights the real situation on the ground in In-
The Harvard Law Record is a publication
The latest report, if accurate, only groups that the Indian military has dian occupied Kashmir.
of The Harvard Law School Record Cor-
goes to prove the brutalities encoun- killed a large number of Kashmiri youth A democracy which suppresses dis-
poration. All rights reserved. The Harvard
tered by the Kashmiris at the hands of in "fake encounters", dubbing them sent by means of violence is the most
Law School name and shield are trade-
the Indian armed forces. The Indian oc- "Pakistani terrorists". In April, 2008, vulgar form of democracy, if at all it
marks of the President and Fellows of
cupation of Kashmir casts a dark Amnesty International appealed to the can be called ‘democracy’. The suc-
Harvard College and are used with permis-
shadow over India’s shining image as Indian government to investigate hun- cessful attempt by the Indian state to
sion from Harvard University.
keep the Indian populace in the dark
about such damning reports questions
CREATE
from country to country. Bernanke, Treasury Secretary Timothy banks to diversify themselves with
“The financial industry is already Geithner, and Director of the National riskier investments creates a dangerous
global. They will go anywhere,” he Economic Council and former Harvard and unstable mix. The cultures of the
University President Lawrence Sum- safe and risky businesses are incompat-
A COLUMN
TO INDULGE
Dissenting
mers all bear some blame. ible with one another.
YOUR
Posner said that the Federal Re- “No one respects risk managers be-
Opinion?
serve’s policies under Bernanke and cause they don’t create profits. All they
his predecessor, Alan Greenspan, do is stop deals, like lawyers,” Posner CREATIVITY
EMAIL RECORD@
kept short term interest rates too low said. “The traders are the real stars.
for too long, driving a surge in de- There are always these tensions.”
mand for housing. Posner said that EMAIL
www.hlrecord.org RECORD@LAW
Bernanke failed to heed warnings
LAW about the dramatic rise in housing
FENNO
Page 6 Harvard Law Record January 14, 2010