The SilvergLatest

Why Individuality Matters--John Stossel and David Boaz discuss Three Felonies a Day

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 24 Feb 2012 15:16:29 GMT

Last night on Stossel, John Stossel discussed individual liberty with the Cato Institute's David Boaz. When asked about the big issues facing America, Boaz mentions the wars in Iraq and Afghanistan, and then cites my book Three Felonies a Day, and discusses the real problem of ever proliferating vague federal statutes. Take a look at the video here.

Tonight, I will be appearing on Stossel to discuss overcriminalization in America. The show, entitled "Illegal Everything," will broadcast on Fox Business at 9PM.

Anatomy of a Bad Confession

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 13 Feb 2012 18:03:37 GMT

On Thursday, February 16th, David Boeri, a friend, colleague, and sometimes co-conspirator is going to be joining WCVB Television's "Chronicle" to discuss an absolutely outrageous case of injustice: the story of a 16 year old girl who was coerced by the Worcester police department into confessing to the murder of her infant.

The girl, Nga Truong, spent three years in jail before her release following a judge's order. After WBUR’s story aired in December, “Anatomy of A Bad Confession” prompted public outrage nationwide, calls for changes in the law and discipline of the police officers involved.

Now, Boeri continues to follow Truong’s story with a special half-hour report and an exclusive television interview with her for WCVB-TV. It airs on Chronicle this Thursday evening at 7:30. I truly believe that this is must-see TV.

For more, click here.

A profile in the Mass Law Journal

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 09 Feb 2012 22:51:56 GMT

This month's issue of the Massachusetts Lawyers Journal contains a long profile of me. The piece discusses some of my background, my criminal work, and my work on students' rights cases. If you're curious, you can find the piece by clicking here.

Kevin White, the Feds, and the press

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 07 Feb 2012 22:40:01 GMT

On January 27^th of this year, Kevin White, the man often credited with helping turn Boston into the modern city it is, died after a long illness. Since then, there have been a number of news reports and editorial commentaries discussing White’s sixteen year run as mayor, his subsequent career as a Boston University professor, and even the final years of his political life—capped as it was by seemingly endless federal corruption investigations that nailed a few underlings, but despite then-US Attorney (later governor) Bill Weld’s best efforts, never landed the “Great White.”

But missing from most of the coverage has been a description of how the press played handmaiden to Bill Weld’s prosecutorial apparatus and prevented Mayor White from pursuing a fifth term in office. In my post to ThePhoenix.com, I relate a number of stories of prosecutorial targeting and abuse that were largely ignored—and even aided—by the mainstream media at the time. It seems to me that these stories cry out to be told, uncomfortable as they may be for so many participants, myself included.

Boston College Researchers Drink with the IRA, and Academics Everywhere Get the Hangover

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 25 Jan 2012 21:26:52 GMT

Often the most precipitous modes of inquiry are the most vital. Certainly, that was how Anthony McIntyre and Ed Maloney felt when they founded the Belfast Project, a Boston College-based oral history project that would solicit candid narratives of “The Troubles” in Northern Ireland. The wound in Ireland is still raw, and it is therefore unsurprising that Belfast Project interviewees were promised that their stories would be kept secret until their deaths.

But last month, a federal judge in Massachusetts ordered Boston College to turn over many of the transcripts in order to aid with the police investigation into a forty year old unsolved murder in Ireland. In our piece this week on Forbes.com, Daniel Schwartz and I discuss the judge’s decision and argue that, while it pays lip service to the importance of academic freedom, it does not go nearly far enough to protect society’s interests and could end up setting a very unfortunate precedent for scholars engaged in sensitive research.

Take a look at an excerpt of our piece after the jump, or read it in its entirety by clicking here.

Censorship at Harvard Comes as No Surprise

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 18 Jan 2012 15:34:29 GMT

On July 16^th of last year, Subramanian Swamy, a longtime summer session professor of Economics at Harvard University, wrote a scathing op-ed in an Indian newspaper advocating radical political changes in response to the Mumbai terrorist attacks three days previous. While many members of the Harvard community were upset by Swamy’s suggestions—which included the replacing of Muslim holy sites with Hindu ones, and the denial of voting rights to those who do not concede India’s Hindu heritage—Harvard’s administration at first stood by their economics professor in the name of academic freedom. But the faculty found another way to get rid of ideas they deemed unacceptable; in an unprecedented maneuver, the Faculty of Arts and Sciences re-labeled Swamy’s speech “incitement” and voted last month to strip his course from the Summer School catalogue, a de-facto firing. The maneuver – to de-list a course from the catalogue as a way of effectively firing (without formally firing – a power that the faculty does not possess) a politically incorrect faculty member – is worthy of Machiavelli, but unworthy of a liberal arts institution of higher learning.

As a graduate of Harvard Law School and as someone who taught a course there in the mid-1980s just before the current censorial atmosphere took root, I wrote this piece with considerable sadness. On Forbes.com, I argue that the Harvard faculty’s move should come as no surprise, but rather fits into a decades-long and unfortunate pattern of censorship at the university.

"Thou Shalt Not Watch Whales Eating"--The Economist

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 17 Jan 2012 14:44:25 GMT

A recent issue of the economist details one of the more absurd federal prosecutions I've come across in recent years. For the "crime" of attempting to film killer whales eating, a marine biologist could face up to 20 years in prison.

Have Gun? Don't Travel!

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 13 Jan 2012 19:01:26 GMT

In December of 2011, a series of arrests for gun possession charges in New York City raised a number of important—if perhaps unexpected—legal issues. A number of individuals with valid conceal/carry gun permits issued outside of the city had attempted to “check” their guns—whether at the Empire State Building lobby, the airport, or in one case the 9/11 memorial—and were arrested under the NYC gun law, which recognizes the validity of no outside permits, and carries with it a mandatory minimum sentence of three and a half years in state prison for possession of a loaded weapon. Many commentators have focused their ire on the specific nature of the New York City gun law itself, or have otherwise used the cases as a launching point for a discussion of the Second Amendment’s requirements.

In the piece we posted today on Forbes.com, Daniel Schwartz and I discuss, instead, the dangerously diminishing importance of “intent” in the criminal law—the so-called mens rea requirement that an individual be aware that he is committing a crime before he can be found guilty. Combined with the existence of mandatory minimum sentences, this creates a toxic soup that invites a seemingly radical remedy: “jury nullification,” or the controversial idea that juries have the power (even if not the clear right) to “nullify” unjust laws by voting for acquittal even when a person is, technically, in violation of the statute. Jury nullification, we argue, is essential in a free society that has gone off the rails in terms of prosecutorial abuse. While my book Three Felonies a Day: How the Feds Target the Innocent (updated paperback June 2011 from Encounter Books) details federal law injustices, Schwartz and I point out in this forbes.com piece that state legal systems are not entirely immune from similarly abusive tactics.

Greg Lukianoff in the Washington Post: Clear Campus Rules Needed on Harassment

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 06 Jan 2012 19:48:57 GMT

I started the Foundation for Individual Rights in Education because of a trend I began to detect in the 1980’s; initially often well-meaning attempts to make campuses more welcoming were leading to a watering-down of free speech and academic freedom at our universities. “Political correctness”—the convention that makes equivocation and dishonesty de rigeur for a “polite” and “comfortable” environment—became the norm.

Today, Greg Lukianoff, the President of FIRE, published an op-ed in the Washington Post. In his piece, he describes the history of university infringements on freedom of speech, and points to the growing use of spurious and at times outlandish claims of “harassment” to censor students. Lukianoff calls for far clearer, and more just, campus harassment rules, in order to provide an environment of real academic discourse and inquiry.

Will Harvard Stop Trying to Impose Orthodoxies?

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 05 Jan 2012 17:06:44 GMT

I have great respect (and concern) for college students. As I told one Boston Herald reporter not too long ago, “Never declare war on the young, They’ll outlast you, they’ll outthink you, they’ll outdo you.” To the Herald I was commenting about the government’s attempt to get the identity of anonymous “Occupy tweeters,” but I could just as easily have been castigating college administrators. Too often the administration and faculty attempt to foist an orthodoxy or ideology onto their youthful charges; sometimes they are successful, but often, the students are able to stand up and educate their elders on the importance of freedom of speech and individual conscience.

In my piece on Mindingthecampus.com, I compliment a recent Harvard Crimson editorial that stands up to administrators and faculty all too eager to proclaim Harvard’s solidarity with a political movement. The Crimson staff was able to see the slippery slope inherent in a university’s proposed institutional support for a political cause; the students had a clarity of vision their elders, including their teachers, so often lack. But in the piece I also describe ways in which the Crimson editorial board has been far from perfect in its recent defense of free speech. Harvard’s constant assault on student freedom of speech and conscience—please see my research assistant Daniel Schwartz’s latest article here, published by FIRE in their academic journal “The Lantern,” for a longer explication—has taken a toll. Even the Crimson, a formerly uniformly reliable bulwark against administrative overreach, has during recent times acquiesced to the politically correct pressures exerted by faculty and administration. One hopes that freedom of speech and thought can be restored to our campuses before administrators and professors complete the task of brainwashing their young charges.

Tarek Mehanna Found Guilty

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 21 Dec 2011 18:50:51 GMT

I was saddened, though not terribly surprised, when I heard yesterday that after only ten hours of deliberations, a federal jury found Tarek Mehanna guilty of all seven counts for which he stood accused. Jurors felt the government had proven that Mehanna provided "material assistance to terrorists" for such actions as making translations of jihadi videos. Mehanna now awaits sentencing and may face up to life in prison for acts that, until now, seemed clearly protected under the First Amendment.

I was asked by PBS affiliate WGBH-TV, and NPR affiliate WBUR, to speak about the Mehanna case yesterday on their respective stations.

Click here for my interview on WBUR's Radio Boston (Dec. 20), or listen to the audio clip below.

Radio Boston

Click here for my interview on WBUR's Morning Edition (Dec. 21), or listen to the audio clip below.

Morning Edition

After the jump is video of my interview on WGBH-TV's Greater Boston (Dec. 20).

Blagojevich Sentenced: He Joins the Justice Department's Smoke and Mirrors Show

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 09 Dec 2011 20:04:47 GMT

Rod Blagojevich was sentenced on December 7^th (Pearl Harbor Day!) to 14 years in prison. I argue in my latest “Injustice Department” piece at Forbes.com that Blagojevich was a victim of an ever-expanding federal prosecutorial apparatus. He violated no state laws, and yet found himself under the thumb of a prosecutor citing vague federal statutes. The result was Blagojevich’s having been found culpable for behavior that was not criminal, and that he had no reason to think would be construed as such. In the run-up to his sentencing where the trial judge played his assigned part in a morality play enabling unjust federal prosecutorial power, and in a last desperate attempt to lessen his punishment, Rod Blagojevich admitted responsibility. But he admitted to having committed what I deem to be non-crimes. And if a new congressional bill—the “Clean Up Government Act”—gets enacted into law, we will see a great many more unsuspecting local politicians finding themselves in the crosshairs of an overzealous and unjust federal criminal justice system. Today it is the pols in the DOJ’s crosshairs; tomorrow it can readily be all of us (indeed, it pretty much is already).

'Major' free speech flap at Suffolk Law

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 02 Dec 2011 22:33:13 GMT

On Veterans Day this year, Suffolk University Law professor Michael Avery generated controversy with an e-mail to fellow faculty members criticizing a care-packages-for-the-troops drive at the law school. Avery’s words upset many in the community, including an adjunct faculty member currently serving in Afghanistan, Major Robert Roughsedge. Maj. Roughsedge was so incensed by the comments—and especially by Suffolk’s refusal to fire and/or censure Avery for them—that he resigned. Maj. Roughsedge won considerable editorial support for his position.

In our column, an excerpt of which is after the jump, Daniel Schwartz and I argue that Major Roughsedge’s critique and resignation—far from a reasonable response to professor Avery’s e-mail—represented something we see far too often in academia, albeit more often on the speech-intolerant Left: the attempt to punish while failing to engage uncomfortable speech. Instead of debating with Professor Avery, Major Roughsedge accused Avery of spewing “hate speech,” and then Roughsedge quit the academy when Avery wasn’t fired.

Sometimes the Tobacco Companies are Right

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 25 Nov 2011 18:47:12 GMT

Sometimes we can even be thankful for tobacco companies. On November 7^th, Judge Richard Leon enjoined the FDA from enforcing new regulations which would force tobacco companies to emblazon their cigarette packages with graphic images depicting the worst ravages of diseases caused by smoking. While we are hardly fans of smoking tobacco or the companies which sell cigarettes, as my research assistant Daniel Schwartz and I write on Forbes.com this week, the tobacco companies were absolutely correct in their objections, and Judge Richard Leon’s decision represents an important reminder that the First Amendment guarantees us not only the right to speak, but also the right NOT to speak (and, in particular, the right not to parrot the government’s preferred point-of-view).

The Supreme Court: A Prosecutor's Best Friend

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 14 Nov 2011 21:08:44 GMT

On October 27th, the Innocence Project, in conjunction with the Veritas Initiative and Voices of Innocence, announced a “nationwide tour seeking policy reforms to prevent prosecutorial misconduct.” Headlining the tour will be John Thompson, the man who, despite being placed on death row due to corrupt and negligent actions on the part of the New Orleans District Attorney’s Office, was stripped of his 14 million dollar judgment against the DA by the Supreme Court’s ruling in Connick v. Thompson. In our latest post on Forbes.com, my research assistant Daniel Schwartz and I discuss the ruling, and critique the notion that the prosecutor’s office deserves immunity for its horrific neglect of basic constitutional rights. As we have written elsewhere, the explosion of federal statutes has made all people increasingly at risk of facing criminal and civil charges for a host of innocuous behaviors. Surely, so-called public servants should be held to at least as high a standard as their masters, rather than be given protections that would be unheard of for normal citizens.

What to do if the FBI wants to interview you

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 14 Nov 2011 20:16:21 GMT

One of the most shocking, and under-reported, Department of Justice practices is the FBI's express policy NOT to tape-record interrogations. Not recording interrogations allows the FBI to claim itself the sole arbiter of what is, and is not, true in a witness's testimony. Such a strategy gives clear, and unfair, advantage to the prosecution, and presents problems for witnesses, defendants, and defense lawyers alike.

But there is a simple, and effective, strategy which, if implemented, can get around the pesky problem: insist on recording the interview yourself. Recently, the Massachusetts ACLU asked me to discuss what to do if the FBI decides it needs your testimony. Here is how I responded:

I have been happy to see that the ACLU video has been catching on. In a recent article on alternet.org critiquing the "surveillance state", my interview was given as pragmatic advice to those who fear they might face an FBI interview. I sincerely hope my advice helps and that, eventually, the FBI decides to reform its harmful policy.

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Obama Learns Newspeak: The Administration's Perversion of the Freedom of Information Act (FOIA)

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 09 Nov 2011 19:33:50 GMT

On October 30th, the Obama administration proposed an executive rule that will instruct government agencies to lie to the citizenry. The administration's proposal is a rule-change to the Freedom of Information Act: under the new policy, agencies would be instructed to tell citizens seeking prohibited documents not merely that the documents are not available, but that the documents do not exist at all. As my research assistant Daniel Schwartz and I show in our article on Forbes.com today, the implications of this seemingly insignificant bureaucratic decision are quite far-reaching, and make a veritable mockery of President Obama's supposed embrace of a new "era of openness" in government.

Caleb Warner's Story Continues to Inspire

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 07 Nov 2011 20:10:21 GMT

Caleb Warner may not be returning back to school this year, but he has been inspiring people to speak out against the guidelines for prosecuting sexual assault on college campuses.

On July 15th I published an op-ed in The Wall Street Journal about Caleb, a University of North Dakota student accused of sexual assault. Caleb was kicked out of school and the local police swore out an arrest warrant; not for him, but for his accuser. Utilizing the same evidence that led to his expulsion from school, the police determined that Caleb was not guilty, and that his accuser had filed a false police report. Even though police felt there was clearly insufficient evidence to bring charges (much less convict), the school was perfectly comfortable bringing him in front of a disciplinary board and expelling him. They were so comfortable, in fact, that even after Caleb's accuser left town following the warrant for her arrest, the school still did not agree to rehear his case.

But after a summer of bad press, along with intensive lobbying by the Foundation for Individual Rights in Education (FIRE), the University of North Dakota vacated all of Caleb's charges, including his expulsion. While he has said he is unlikely to return to the University of North Dakota, he now has a clean record, and can move on with his life.

Caleb's story has also inspired a number of other people who are concerned about due process on campus.

The right to videotape a cop

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 04 Nov 2011 16:25:01 GMT

Yesterday, I was quoted in a story in the Boston Herald about a new lawsuit brought by my colleague Harold Friedman against the Boston Police Department. Harold's client, Maury Palino, alleges that he was hit and pepper sprayed in retaliation for filming some policemen making a violent arrest. In the article, I argue that the right to film police officers is essential to promoting an open and more free society, a right, incidentally, recognized by the courts in Simon Glik's recent case.

You can find the article by clicking here.

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Discussing Tarek Mehanna on WBUR

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 03 Nov 2011 18:58:41 GMT

On Tuesday, I was invited to discuss the Tarek Mehanna case on WBUR's radio program "Greater Boston." In the show, I debated Captain Glenn Sulmasy, a Law Professor at the US Coast Guard Academy in Connecticut.

As I have written here and elsewhere, my view is that the Mehanna case is, fundamentally, about free speech. Mehanna's translations of some Jihadi videos form the basis for his most serious charges of "Providing Material Support to Terrorists." I argue, in my debate with Capt. Sulmasy, that translations represent clearly protected speech; after all, I could make a translation of Mein Kampf, and it would not mean that I should be arrested for having urged the killing of Jews and Gypsies!

To hear a recording of the segment, click here, or listen to the embedded program below.

Radio Boston

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Terrorizing Free Speech: the case of Tarek Mehanna

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 01 Nov 2011 14:57:30 GMT

Tarek Mehanna may have objectionable--even horrific--views, but that does not make him a terrorist or a criminal. Mehanna was arrested two years ago on charges of lying to federal investigators, and providing material support to terrorists. The FBI also implies that Mehanna had plans to carry out a shooting spree in the Sudbury mall, but was thwarted by his inability to obtain weapons (consider, for one moment, how easy it is to get a gun in the United States). The crux of the government's case centers on a series of videos for which Mehanna allegedly provided subtitles; the translations, the Feds say, represented material support for terrorists.

Last night I spoke with Emily Rooney on her WGBH show about the case, arguing that, in order to live in a free and open society, we must protect speech, even the speech of those whose beliefs we find abhorrent. The video is embedded after the jump.

Ukraine Is More Western Than You Think: The Trial of Yulia Tymoshenko

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 21 Oct 2011 19:36:01 GMT

On October 11^th, Yulia Tymoshenko, the former Prime Minister and would be President of Ukraine, was sentenced to 7 years in prison. Politicians, analysts, and reporters from Moscow, Russia, to Moscow, Missouri, have condemned her trial as an unjust farce. New York Times reporter Ellen Barry summed up many “western” views of the trial when she wrote that it would “lead Ukraine west, toward Europe, or into a tight symbiosis with the country’s Soviet-era masters in Moscow.” The consensus, of course, was that the guilty verdict has done the latter.

In our piece, Daniel R. Schwartz and I take a different view and argue that, while perhaps isolating the Ukraine politically, the trial itself demonstrates some striking similarities between our legal system and Ukraine’s. To convict Tymoshenko, politically-minded prosecutors cleverly utilized vague parts of the Ukrainian code of laws that were never designed to police her alleged behavior. As regular readers of my columns already know, the utilization of vague laws to convict the innocent is as American as apple pie (or, as it were, as Ukrainian as a nice bowl of Borsch).

Obama Crosses the Rubicon: The Killing of Anwar al-Awlaki

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 20 Oct 2011 20:13:13 GMT

On September 30^th predator drones flying out of a secret airbase in Yemen blew up a car carrying Anwar al-Awlaki and Samir Khan, American citizens allegedly involved with Al Qaeda. While Khan was considered “collateral damage,” Awlaki was the main target and a man who, based upon the President’s word, had been placed onto an official kill list. On Forbes.com, Daniel Schwartz and I argue that the administration’s actions were highly troubling, as they represented a heretofore unimagined expansion of executive power. A presidential-ordered assassination of an American citizen, without the involvement of either of the other two branches of government, is a matter of profound consequence, regardless of the heinousness of the target. In a constitutional democracy, we argue, process matters.

The Lying Witness, the Dank Cellar, and the Dingy Coffee Shop

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 13 Oct 2011 22:32:52 GMT

William Weld famously won 109 out of the 111 cases his office prosecuted when he was US Attorney for Massachusetts. I am quite proud to be one of the two blemishes on his career. All it took was overzealous prosecutors, unscrupulous federal agents, a lying witness (hardly unusual in federal criminal trials), and the basement of a dingy coffee shop.

Wendy Kaminer in The Atlantic: 'When Everyone is an Offender'

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 28 Sep 2011 20:17:11 GMT

Stalwart civil libertarian (and longtime friend) Wendy Kaminer points out in The Atlantic how a recent New York Times Magazine article, which lauded "fuzzy" prohibitions on insider trading, essentially scoffs at the time-tested guarantee of due process. Due process "requires that laws clearly delineate the boundaries between legal and illegal behavior, providing us with notice of our potential criminal liabilities and denying prosecutors the arbitrary, ad hoc power to police our private and public lives," Kaminer writes. She goes on to cite the recent case of a Boston firefighter who was acquitted of mail fraud, and whose acquittal caused a curious uproar from local media.

Locally, a Boston jury recently acquitted a former firefighter of mail fraud after he was caught engaging in bodybuilding while on disability leave. In response to an outcry over the acquittal of this apparently non-disabled defendant, jurors explained to the Boston Globe that while they considered him guilty of trying to defraud the pension system, "they did not accept that he was guilty of two counts of mail fraud, a federal crime that could have put the muscular 49-year-old behind bars for up to 20 years." He should have should have been charged in state court for simple fraud, jurors reportedly concluded.
But cases like this are unusual. The vast majority of criminal cases never reach juries, much less the Supreme Court, so there are few checks on federal prosecutors who abuse a vague, expansive criminal code. We might all be prosecuted for committing "three felonies a day," my friend Harvey Silverglate has written.

"When Everyone is an Offender," Wendy Kaminer, The Atlantic (September 28, 2011)

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