Lawyers Journal

"Innocent until proven guilty" anything but absolute in federal courts

Three Felonies A Day: How the Feds Target the Innocent
by Harvey A. Silverglate
Encounter Books, 2009, 325 pages

If it is true that words are intellectual and moral currency, and like currency, words sometimes appreciate or depreciate in value, then Harvey Silverglate's words exposing the deception that has become routine in the federal criminal justice system has an appreciable net worth of millions in accused lives.

Silverglate, a criminal defense attorney, takes a realistic approach in exposing the existence of unprincipled, vague, iniquitous rules, statutes and conduct by the federal criminal justice system that renders subjective "fact-finding" and "intent" constitutionally illusory. Through and by its own dicta, the federal criminal court is no longer the most challenging battleground for the testing of legal knowledge, wisdom and advocacy skill, but rather, a one-dimensional contentious pulpit for entrenched powers whose primary goal is to convict an individual in a procedurally unbalanced arena unconcerned about truth.

Silverglate eloquently evaluates and examines cases from the political to the controversial - attacks on the Fourth Estate, the American Bar Association and medicine - while alluding to the fact that the federal criminal justice system "eats its own." He elucidates the causes, effects, outcomes, orchestrations and designs of procedurally "dispatched cases" by the federal prosecution whose assertions concerning the law are reached through prejudicial assumptions that fly in the face of fact and reasonableness.

How things are done has become far more important than what is done. Process has become an end in itself. The federal criminal justice system is consumed by the reign of absolute law, contrary to the social contract of fairness and inalienable rights which worked to protect justice throughout the centuries. It has become commonplace for the courts to accept unsubstantiated, coached, unsupported, questionable, solicited and compensated testimony from witnesses or alleged co-conspirators who have much to gain, and whose oath of veracity and trustworthiness is malevolently justified through the institutionalization of public fear.

Viewed through Silverglate's lens, abuses of the power of law by those appointed to ensure justice and equal citizenship become clear. The process of justice now outweighs procedural safeguards essential to a free society. The American people have been fooled, with bias, lynch law and trial by media destroying the impartiality of our administration of justice. Due process and equal protection have given way to obsession with professional advancement and expeditious docket-clearing, to the point that fact finding is whatever the government says it is, and evidence of innocence is of no consequence.

Three Felonies a Day's lesson for defense attorneys is how ill-equipped they have been and still are to the reality of vague statutes and abuse of power brandished by the federal criminal justice system. Attorneys may take issue with this book, but provoking debate around controversial prosecutions is one of the main benefits of the discourse. Incarceration, probation and conviction should not be taken at face value. All any of us can know is that someone somewhere sentenced an individual to a term of punishment based on someone else's accusations. There is no proof positive that a crime was committed, nor is sentencing indicative of an individual's character.

Three Felonies a Day evokes a renewed call for a return to constitutional guarantees of due process and equal protection under the law. It is a must-read for anyone who is civilly disabled, socially disenfranchised, naive enough to believe the criminal justice system has anything to do with justice, and all recently graduated lawyers who have accepted employment with the U.S. Attorney's Office. Lastly, it is for those of us who need a reminder that "innocent until proven guilty" is neither an absolute nor a reality.

Gerald N. Unger is executive director and general counsel of Inalienable Rights Project Inc. in Wareham.

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