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Black and Whitey: How the feds disable criminal defense

244 points by eplanit 14y ago

thebmax 14y ago
This is a great article. I have followed the Conrad Black case closely and have been amazed for some time at the ruthless nature of the prosecution. Not only do they freeze assets, and add on ridiculous charges like 15 counts of wire fraud because the document in question contained 15 pages, they also use effective PR campaigns - bringing out the defendant in handcuffs, staging press conferences where they go into detail on the alleged crime before the trial has even begun in order to taint the jury pool. For prosecutors, many cases are not about justice but about winning at any cost - often to further their own political career. If you are unlucky enough to be caught in the sights of a ambitious public prosecutor watch out. There is another case where the feds threatened a general labourer with 24 years in jail because he helped his boss move some bags of fertilizer. Turned out the government thought the bags might be used as a bomb making material and charged his boss with terrorism charges. He was an 'accomplice' to the crime and given the choice of pleading guilty and serving 2 years in jail or risking 24 years in jail at a trial. The article is here: http://online.wsj.com/article/SB10000872396390443589304577637610097206808.html http://online.wsj.com/article/SB1000087239639044358930457763... Stories like this make me so angry. How many other innocent people are thrown behind bars by prosecutors 'win at all costs' style.
- munin 14y ago
  I think largely we are to blame for this turn of events. Where was the demand for justice when mobsters hired million dollar legal teams to beat murder charges? I think prosecutors are just responding to the demands of some of their constituents.
  - chrisbennet 14y ago
    I can see that prosecutors may feel pressure to convict someone that they "know" is guilty but that doesn't make it right. It's not right when I policeman plants evidence and it isn't right when a prosecutor decides he would rather intimidate the accused instead of win his case fairly in court.
  - epoxyhockey 14y ago
    This is my feeling, too. The pendulum may have swung too far to one side (favoring overzealous prosecution), and will undoubtedly swing back towards to other side in time.
iwwr 14y ago
Would it work to institute a fixed maximum limit in the number of words/characters in a criminal indictment, as well as restrictions on plea bargains?
- krenoten 14y ago
  As with filter bypassing, what prevents splitting one big indictment into several smaller ones?
- rayiner 14y ago
  No, because very often criminal indictments really do need to include a lot of information. Think of charges being brought against gang bosses or mob bosses.
- bcoates 14y ago
  There's no need for more bureaucratic rules, we just need to appoint judges willing to identify these avalanche-of-paperwork techniques and respond with "TL; DR; dismissed with prejudice"
- dmckeon 14y ago
  Simple (& naïve - NAL) fix: Equal budgets for more equal justice. If assets are frozen, require the prosecution to estimate what they will spend prosecuting the case and to unfreeze assets of the defendants' choice at least equal to the prosecution's estimate, to be allocated to provide for the defendants' defense. Let the court require weekly up-to-date accounting from the prosecution, with a proviso that if the prosecution submits inaccurate reports or goes over their estimated budget the case is decided in the defendant's favor. Note also that a large percentage of convictions involve a defendant pleading to a lesser offense.
  - maxharris 14y ago
    That's not enough. Assets, however large, should not be frozen at all prior to trial. Whatever happened to "innocent until proven guilty?"
aaronblohowiak 14y ago
I'm not a fan of freezing the assets of someone and then overwhelming their legal defense, but this puts the formerly privileged in the same situation that the poor have -- if you think this is unjust because it deprives people of adequate legal council then you should also believe it is injust that the accused poor also have a lack of adequate representation, but you'll never see that presented in Forbes.
- leephillips 14y ago
  Good points, but I think the issue here is that the government takes steps for the specific purpose of denying a defendant the right to hire counsel of his choosing.
- thebmax 14y ago
  I agree with you that the poor get hit by this just as hard. A person who is facing a drug charge who has a few priors will be given the choice of pleading guilt and serving a few years in jail or going to trial and risking 20 years or some such nonsense. But why should making everyone suffer from an unjust legal system better than the alternative. This is like the socialists who believe everyone being poor is better than some people being rich. "The equal sharing of misery" as Churchill put it, is not a good outcome.
  - wpietri 14y ago
    The reason that we should end the "one law for the rich, another for the poor" system we have now is that the system will never get more just unless the people with power have an incentive to make it so. I'm pretty skeptical that Black was ill-used by the prosecutors. But even if he were, then as long as he was no more ill-treated than the average drug defendant, then I don't think we should worry about him more than the average drug defendant. And possibly less; Black still has incredible advantages over most of humanity.
    - AnthonyMouse 14y ago
      >The reason that we should end the "one law for the rich, another for the poor" system we have now is that the system will never get more just unless the people with power have an incentive to make it so. That only works if the injustice affects sufficiently many affluent people that they act to change it -- and that they act to do more than just solve it solely for the rich. Which is highly unlikely, because those who can't buy their way out of a prosecution with lawyers can buy their way out of it with campaign contributions or outright bribes (but I repeat myself) or calling in favors from politically connected friends, etc. And even if that wasn't the case, most rich people will never be prosecuted anyway (which is the same reason that most blue collar voters don't vote in anyone who will fix it for their brethren). But the main reason is that solving it for working class people is hard, because good criminal defense is extraordinarily expensive and indigent defendants themselves can't afford it, but there are so many such defendants that governments can't afford to pay for it on their behalf either. Meanwhile solving it for the rich is easy, because they each have their own money so they just open their wallets and obtain the best justice money can buy. This is always the problem with the "we'll make the problem worse and then they'll have to fix it" logic. When the problem is extremely hard, making it worse doesn't cause an easy solution to magically appear, it just makes it worse.
gyardley 14y ago
If you'd like to learn more about how the federal government unjustly railroaded Conrad Black, I can't recommend his autobiographical A Matter of Principle enough. A great eye-opener of a book.
- correctifier 14y ago
  Well that is his side of the story, which may or may not have any real truth to it. Personally I do not trust a single thing that Conrad Black says. As a Canadian I am upset at how he seems to have used his political clout to get himself a visa and likely have his citizenship restored.
  - goodcanadian 14y ago
    It is well established that if you denounce your Canadian citizenship, Canada will give it back (and in fact, pretend it never happened), at least the first time. Conrad Black is not special in this regard.
charonn0 14y ago
The fifth amendment requires the defendant to be indicted by a grand jury before facing trial. I think the article overstates the power of the US Attorney to bring charges (if perhaps only only in theory).
- ef4 14y ago
  In practice, it's an open secret that grand jury proceedings are so biased in favor of the prosecution that they're merely a formality. As if any grand jury could sift through a 360,000 page indictment anyway.
  - charonn0 14y ago
    If there ever were a 360,000 page indictment, then I'd agree.
- rprasad 14y ago
  Federal grand juries are stricter than grand juries at the state or local levels, but state and local grand juries will indight a ham sandwich (in many instances, grand juries have erroneously indicted the victim of the crime rather than the alleged perpetrator), so this is a very low bar. All the prosecutor has to do to satisfy the grand jury is show sufficient evidence that the defendant could have committed the crime.
- rayiner 14y ago
  This should not be downvoted. This is true and an important Constitutional check on prosecutorial power.
  - talmand 14y ago
    That's supposed to be how it works, but often in practice it is far from it.
  - gyardley 14y ago
    If it was downvoted, it's because the grand jury process has become a farce. A pretty good description of how it actually works, written by a former government prosecutor, can be found in this entry: http://www.popehat.com/2010/12/30/the-first-rule-of-the-war-on-drugs-is-dont-talk-about-the-war-on-drugs/ http://www.popehat.com/2010/12/30/the-first-rule-of-the-war-... Conrad Black also describes the use and abuse of the grand jury in depth as part of A Matter of Principle.
gregcohn 14y ago
I'm surprised by the trend of comments here suggesting that the US government is going after some of these guys too hard. I thought the general perception is that they haven't gone after enough wall street swindlers. For example, I'm not aware of anyone that's gone to jail for the 2007-8 US housing & subprime crash, despite the fact that clear malfeasance wiped out billions of dollars of economic and consumer value.
- angersock 14y ago
  ...which should raise immediate warning bells. Given two lemmas: 1. The Feds can nail anyone they want to the wall. 2. The Feds have not prosecuted anyone meaningful for the crash. What might we conclude?
  - pdonis 14y ago
    We might conclude that too many Federal officials had their fingers in the pie, and any prosecution of the Wall Street executives involved would have revealed too much of what went on behind closed doors.
angersock 14y ago
It's very distressing (as at least one other poster has noted) that we have this sort of "Aha, but now they are treated the same as the poor people!" thing even possible in our system. It is troubling that there is this obvious built-in bias towards justice-as-a-function-of-wealth. A somewhat longer-term issue is this: If it becomes common knowledge that the Feds don't fight fair, and that my resources can be used against me and mine via seizure and what not--why do I want to stay in the US and play the game? Even more cynically, why do I want to play a game I can't win according to their rules--wouldn't my money be better spent on dead drops for harassment, assassins, or something against public officials? I mean, that's the very real risk of this sort of thing, right? That we undermine the values of our society and provide incentives for extralegal defense? And that these measures in turn spur further degradation to "fight the terrorists/crime lords/etc." in one big swooping downwards spiral? (Edit: The use of first-person is writing style, not intended as "I want to do X to the gubberment" lunacy, etc. etc.)
- pekk 14y ago
  If you want to engage in criminal activities that will raise the interest of the FBI, is it really a problem that you wouldn't want to "stay in the US and play the game"? I don't think most people would want you playing those kinds of games here.
  - angersock 14y ago
    Were it only that clear cut. Which activities, precisely, are criminal? What if I don't know? What if I do something else, the FBI doesn't care, but I happened to have accidentally banged DA's car door or something? Or cursed at a TSA agent? There are very bad people out there, and we certainly don't want them--I wouldn't argue that anyway. But there are a lot of technical criminals who probably don't even know it.
    - swalkergibson 14y ago
      Ignorance of the law is no excuse. Never has been, never will be.
ef4 14y ago
Is it possible to buy legal defense insurance? Not just insurance against civil liability, but insurance that will pay for legal defense in a criminal case?
- debacle 14y ago
  The moral hazard would make it too difficult (read: impossible) to price the risk.
  - ef4 14y ago
    Good point.
  - bcoates 14y ago
    If you make it a routine requirement of business deals it'd soften the moral hazard.
  - macspoofing 14y ago
    How so? Having your defense funded doesn't guarantee you immunity or a "not guilty" verdict. Where's the moral hazard?
    - mikeash 14y ago
      In short, people would take out the insurance right before they commit a crime so they didn't have to pay for their own defense. It doesn't guarantee a verdict, but if you've decided you're going to go to trial anyway, you might as well take out the insurance, and I don't see how the insurance company could survive in that environment, since the principle of insurance is that most people won't need it.
      - tossacct 14y ago
        The service exists, and presumably is profitable: http://en.wikipedia.org/wiki/Legal_expenses_insurance http://en.wikipedia.org/wiki/Legal_expenses_insurance To address your comment in detail: 1)>>>In short, people would take out the insurance right before they commit a crime so they didn't have to pay for their own defense. 2)>>>I don't see how the insurance company could survive in that environment, since the principle of insurance is that most people won't need it. Point 1: Require the insurance to be delayed: you must pay into the insurance for X number of years before it can be used. In this case, "right before they commit a crime" will end up being long enough to recoup the costs of the defense. An actuary can help find what number of years is needed for the specific business. http://en.wikipedia.org/wiki/Actuary http://en.wikipedia.org/wiki/Actuary Point 2: All insurance companies are faced with the challenge of survival. They often overcome this challenge by increasing their pool of customers: "most people won't need it" and are profit centers, the few who do need it are the cost centers. Again, actuaries are the folks to call.
PaulAJ 14y ago
So how, exactly, does the Second Amendment protect you from this?
- talmand 14y ago
  It doesn't, as the Second Amendment is not designed to protect citizens from overzealous prosecutors but from a tyrannical government. These examples do not cross that threshold.
pfortuny 14y ago
Oh please: inequality!=injustice. Please grow up. Envy is not a good path to justice.
pge 14y ago
Interestingly, when I talk to DOJ or SEC prosecutors, I have heard the opposite. They are concerned because the whitecollar defendants (e.g. Bernie Madoff) they try to prosecute have access to much larger legal teams than the feds who are operating on very limited resources.
- fr0sty 14y ago
  Madoff is a spectacularly bad example here. He was arrested Dec 11 and plead guilty on March 12 of the following year without even attempting to plea bargain.
  - 1337biz 14y ago
    Any guesses on the reasoning behind that?
  - pge 14y ago
    true - I didnt mean to hold him as an example of overwhelming the prosecution with his resources (just as an example of the type of white collar crime I was referring to). He is, however, an instructive example in a different way - $1B of the assets that he stole have never been found. DOJ lacks the resources to trace the complex paper trail to figure out where it went (as a DOJ friend of mine said, "The money can always move faster than we can"). So, while he was convicted, someone somewhere is really, really rich, and the feds don't have the resources to recover the capital and return it to the victims.
jmaygarden 14y ago
I highly recommend referenced book by the author of the article, Harvey Silverglate, called "Three Felonies a Day" [1]. It's a great read and details many similar cases. [1] http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229 http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/...
brown9-2 14y ago
The article seems to state that a 75 page, 15 count indictment is extraordinarily complex. Is that really the case? 75 pages does not seem that long.
dclusin 14y ago
Would a loser pays system do anything to reduce this sort of behavior? Or is that only applied to civil cases? Am not a lawyer obviously, so please forgive the uninformed question.
- lmm 14y ago
  Loser pays would likely be better for the rich, but even worse for the poor - if you're a poor murder suspect or drug user being pressured to accept a plea bargain rather than risk a much longer sentence, adding in the costs of the fancy prosecution case makes it that much worse.
Unoeufisenough 14y ago
Such aggressive prosecution has a lot do with the elected nature of sheriffs and DA's, a peculiarity of the US system. The political nature of enforcement and prosecution seems to change incentives towards maximizing conviction rates and publicity of high-profile convictions... sometimes it would seem at the expense or beyond what would be optimal for society or the crime.
helmut_hed 14y ago
I nearly stopped reading after this phrase: Conrad Black, one of the most consequential public intellectuals and businessmen of our era This guy is a CEO who raided his own company's coffers, to the vast enrichment of himself and the impoverishment of his shareholders.

244 points by eplanit 14y ago

This is a great article. I have followed the Conrad Black case closely and have been amazed for some time at the ruthless nature of the prosecution. Not only do they freeze assets, and add on ridiculous charges like 15 counts of wire fraud because the document in question contained 15 pages, they also use effective PR campaigns - bringing out the defendant in handcuffs, staging press conferences where they go into detail on the alleged crime before the trial has even begun in order to taint the jury pool. For prosecutors, many cases are not about justice but about winning at any cost - often to further their own political career. If you are unlucky enough to be caught in the sights of a ambitious public prosecutor watch out. There is another case where the feds threatened a general labourer with 24 years in jail because he helped his boss move some bags of fertilizer. Turned out the government thought the bags might be used as a bomb making material and charged his boss with terrorism charges. He was an 'accomplice' to the crime and given the choice of pleading guilty and serving 2 years in jail or risking 24 years in jail at a trial. The article is here: http://online.wsj.com/article/SB10000872396390443589304577637610097206808.html http://online.wsj.com/article/SB1000087239639044358930457763... Stories like this make me so angry. How many other innocent people are thrown behind bars by prosecutors 'win at all costs' style.

munin 14y ago
I think largely we are to blame for this turn of events. Where was the demand for justice when mobsters hired million dollar legal teams to beat murder charges? I think prosecutors are just responding to the demands of some of their constituents.
- chrisbennet 14y ago
  I can see that prosecutors may feel pressure to convict someone that they "know" is guilty but that doesn't make it right. It's not right when I policeman plants evidence and it isn't right when a prosecutor decides he would rather intimidate the accused instead of win his case fairly in court.
- epoxyhockey 14y ago
  This is my feeling, too. The pendulum may have swung too far to one side (favoring overzealous prosecution), and will undoubtedly swing back towards to other side in time.

iwwr 14y ago

Would it work to institute a fixed maximum limit in the number of words/characters in a criminal indictment, as well as restrictions on plea bargains?

krenoten 14y ago
As with filter bypassing, what prevents splitting one big indictment into several smaller ones?
rayiner 14y ago
No, because very often criminal indictments really do need to include a lot of information. Think of charges being brought against gang bosses or mob bosses.
bcoates 14y ago
There's no need for more bureaucratic rules, we just need to appoint judges willing to identify these avalanche-of-paperwork techniques and respond with "TL; DR; dismissed with prejudice"
dmckeon 14y ago
Simple (& naïve - NAL) fix: Equal budgets for more equal justice. If assets are frozen, require the prosecution to estimate what they will spend prosecuting the case and to unfreeze assets of the defendants' choice at least equal to the prosecution's estimate, to be allocated to provide for the defendants' defense. Let the court require weekly up-to-date accounting from the prosecution, with a proviso that if the prosecution submits inaccurate reports or goes over their estimated budget the case is decided in the defendant's favor. Note also that a large percentage of convictions involve a defendant pleading to a lesser offense.
- maxharris 14y ago
  That's not enough. Assets, however large, should not be frozen at all prior to trial. Whatever happened to "innocent until proven guilty?"

aaronblohowiak 14y ago

I'm not a fan of freezing the assets of someone and then overwhelming their legal defense, but this puts the formerly privileged in the same situation that the poor have -- if you think this is unjust because it deprives people of adequate legal council then you should also believe it is injust that the accused poor also have a lack of adequate representation, but you'll never see that presented in Forbes.

leephillips 14y ago
Good points, but I think the issue here is that the government takes steps for the specific purpose of denying a defendant the right to hire counsel of his choosing.
thebmax 14y ago
I agree with you that the poor get hit by this just as hard. A person who is facing a drug charge who has a few priors will be given the choice of pleading guilt and serving a few years in jail or going to trial and risking 20 years or some such nonsense. But why should making everyone suffer from an unjust legal system better than the alternative. This is like the socialists who believe everyone being poor is better than some people being rich. "The equal sharing of misery" as Churchill put it, is not a good outcome.
- wpietri 14y ago
  The reason that we should end the "one law for the rich, another for the poor" system we have now is that the system will never get more just unless the people with power have an incentive to make it so. I'm pretty skeptical that Black was ill-used by the prosecutors. But even if he were, then as long as he was no more ill-treated than the average drug defendant, then I don't think we should worry about him more than the average drug defendant. And possibly less; Black still has incredible advantages over most of humanity.
  - AnthonyMouse 14y ago
    >The reason that we should end the "one law for the rich, another for the poor" system we have now is that the system will never get more just unless the people with power have an incentive to make it so. That only works if the injustice affects sufficiently many affluent people that they act to change it -- and that they act to do more than just solve it solely for the rich. Which is highly unlikely, because those who can't buy their way out of a prosecution with lawyers can buy their way out of it with campaign contributions or outright bribes (but I repeat myself) or calling in favors from politically connected friends, etc. And even if that wasn't the case, most rich people will never be prosecuted anyway (which is the same reason that most blue collar voters don't vote in anyone who will fix it for their brethren). But the main reason is that solving it for working class people is hard, because good criminal defense is extraordinarily expensive and indigent defendants themselves can't afford it, but there are so many such defendants that governments can't afford to pay for it on their behalf either. Meanwhile solving it for the rich is easy, because they each have their own money so they just open their wallets and obtain the best justice money can buy. This is always the problem with the "we'll make the problem worse and then they'll have to fix it" logic. When the problem is extremely hard, making it worse doesn't cause an easy solution to magically appear, it just makes it worse.

gyardley 14y ago

If you'd like to learn more about how the federal government unjustly railroaded Conrad Black, I can't recommend his autobiographical A Matter of Principle enough. A great eye-opener of a book.

correctifier 14y ago
Well that is his side of the story, which may or may not have any real truth to it. Personally I do not trust a single thing that Conrad Black says. As a Canadian I am upset at how he seems to have used his political clout to get himself a visa and likely have his citizenship restored.
- goodcanadian 14y ago
  It is well established that if you denounce your Canadian citizenship, Canada will give it back (and in fact, pretend it never happened), at least the first time. Conrad Black is not special in this regard.

charonn0 14y ago

The fifth amendment requires the defendant to be indicted by a grand jury before facing trial. I think the article overstates the power of the US Attorney to bring charges (if perhaps only only in theory).

ef4 14y ago
In practice, it's an open secret that grand jury proceedings are so biased in favor of the prosecution that they're merely a formality. As if any grand jury could sift through a 360,000 page indictment anyway.
- charonn0 14y ago
  If there ever were a 360,000 page indictment, then I'd agree.
rprasad 14y ago
Federal grand juries are stricter than grand juries at the state or local levels, but state and local grand juries will indight a ham sandwich (in many instances, grand juries have erroneously indicted the victim of the crime rather than the alleged perpetrator), so this is a very low bar. All the prosecutor has to do to satisfy the grand jury is show sufficient evidence that the defendant could have committed the crime.
rayiner 14y ago
This should not be downvoted. This is true and an important Constitutional check on prosecutorial power.
- talmand 14y ago
  That's supposed to be how it works, but often in practice it is far from it.
- gyardley 14y ago
  If it was downvoted, it's because the grand jury process has become a farce. A pretty good description of how it actually works, written by a former government prosecutor, can be found in this entry: http://www.popehat.com/2010/12/30/the-first-rule-of-the-war-on-drugs-is-dont-talk-about-the-war-on-drugs/ http://www.popehat.com/2010/12/30/the-first-rule-of-the-war-... Conrad Black also describes the use and abuse of the grand jury in depth as part of A Matter of Principle.

gregcohn 14y ago

I'm surprised by the trend of comments here suggesting that the US government is going after some of these guys too hard. I thought the general perception is that they haven't gone after enough wall street swindlers. For example, I'm not aware of anyone that's gone to jail for the 2007-8 US housing & subprime crash, despite the fact that clear malfeasance wiped out billions of dollars of economic and consumer value.

angersock 14y ago
...which should raise immediate warning bells. Given two lemmas: 1. The Feds can nail anyone they want to the wall. 2. The Feds have not prosecuted anyone meaningful for the crash. What might we conclude?
- pdonis 14y ago
  We might conclude that too many Federal officials had their fingers in the pie, and any prosecution of the Wall Street executives involved would have revealed too much of what went on behind closed doors.

angersock 14y ago

It's very distressing (as at least one other poster has noted) that we have this sort of "Aha, but now they are treated the same as the poor people!" thing even possible in our system. It is troubling that there is this obvious built-in bias towards justice-as-a-function-of-wealth. A somewhat longer-term issue is this: If it becomes common knowledge that the Feds don't fight fair, and that my resources can be used against me and mine via seizure and what not--why do I want to stay in the US and play the game? Even more cynically, why do I want to play a game I can't win according to their rules--wouldn't my money be better spent on dead drops for harassment, assassins, or something against public officials? I mean, that's the very real risk of this sort of thing, right? That we undermine the values of our society and provide incentives for extralegal defense? And that these measures in turn spur further degradation to "fight the terrorists/crime lords/etc." in one big swooping downwards spiral? (Edit: The use of first-person is writing style, not intended as "I want to do X to the gubberment" lunacy, etc. etc.)

pekk 14y ago
If you want to engage in criminal activities that will raise the interest of the FBI, is it really a problem that you wouldn't want to "stay in the US and play the game"? I don't think most people would want you playing those kinds of games here.
- angersock 14y ago
  Were it only that clear cut. Which activities, precisely, are criminal? What if I don't know? What if I do something else, the FBI doesn't care, but I happened to have accidentally banged DA's car door or something? Or cursed at a TSA agent? There are very bad people out there, and we certainly don't want them--I wouldn't argue that anyway. But there are a lot of technical criminals who probably don't even know it.
  - swalkergibson 14y ago
    Ignorance of the law is no excuse. Never has been, never will be.

ef4 14y ago

Is it possible to buy legal defense insurance? Not just insurance against civil liability, but insurance that will pay for legal defense in a criminal case?

debacle 14y ago
The moral hazard would make it too difficult (read: impossible) to price the risk.
- ef4 14y ago
  Good point.
- bcoates 14y ago
  If you make it a routine requirement of business deals it'd soften the moral hazard.
- macspoofing 14y ago
  How so? Having your defense funded doesn't guarantee you immunity or a "not guilty" verdict. Where's the moral hazard?
  - mikeash 14y ago
    In short, people would take out the insurance right before they commit a crime so they didn't have to pay for their own defense. It doesn't guarantee a verdict, but if you've decided you're going to go to trial anyway, you might as well take out the insurance, and I don't see how the insurance company could survive in that environment, since the principle of insurance is that most people won't need it.
    - tossacct 14y ago
      The service exists, and presumably is profitable: http://en.wikipedia.org/wiki/Legal_expenses_insurance http://en.wikipedia.org/wiki/Legal_expenses_insurance To address your comment in detail: 1)>>>In short, people would take out the insurance right before they commit a crime so they didn't have to pay for their own defense. 2)>>>I don't see how the insurance company could survive in that environment, since the principle of insurance is that most people won't need it. Point 1: Require the insurance to be delayed: you must pay into the insurance for X number of years before it can be used. In this case, "right before they commit a crime" will end up being long enough to recoup the costs of the defense. An actuary can help find what number of years is needed for the specific business. http://en.wikipedia.org/wiki/Actuary http://en.wikipedia.org/wiki/Actuary Point 2: All insurance companies are faced with the challenge of survival. They often overcome this challenge by increasing their pool of customers: "most people won't need it" and are profit centers, the few who do need it are the cost centers. Again, actuaries are the folks to call.

PaulAJ 14y ago

So how, exactly, does the Second Amendment protect you from this?

talmand 14y ago
It doesn't, as the Second Amendment is not designed to protect citizens from overzealous prosecutors but from a tyrannical government. These examples do not cross that threshold.

pfortuny 14y ago

Oh please: inequality!=injustice. Please grow up. Envy is not a good path to justice.

pge 14y ago

Interestingly, when I talk to DOJ or SEC prosecutors, I have heard the opposite. They are concerned because the whitecollar defendants (e.g. Bernie Madoff) they try to prosecute have access to much larger legal teams than the feds who are operating on very limited resources.

fr0sty 14y ago
Madoff is a spectacularly bad example here. He was arrested Dec 11 and plead guilty on March 12 of the following year without even attempting to plea bargain.
- 1337biz 14y ago
  Any guesses on the reasoning behind that?
- pge 14y ago
  true - I didnt mean to hold him as an example of overwhelming the prosecution with his resources (just as an example of the type of white collar crime I was referring to). He is, however, an instructive example in a different way - $1B of the assets that he stole have never been found. DOJ lacks the resources to trace the complex paper trail to figure out where it went (as a DOJ friend of mine said, "The money can always move faster than we can"). So, while he was convicted, someone somewhere is really, really rich, and the feds don't have the resources to recover the capital and return it to the victims.

jmaygarden 14y ago

I highly recommend referenced book by the author of the article, Harvey Silverglate, called "Three Felonies a Day" [1]. It's a great read and details many similar cases. [1] http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229 http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/...

brown9-2 14y ago

The article seems to state that a 75 page, 15 count indictment is extraordinarily complex. Is that really the case? 75 pages does not seem that long.

dclusin 14y ago

Would a loser pays system do anything to reduce this sort of behavior? Or is that only applied to civil cases? Am not a lawyer obviously, so please forgive the uninformed question.

lmm 14y ago
Loser pays would likely be better for the rich, but even worse for the poor - if you're a poor murder suspect or drug user being pressured to accept a plea bargain rather than risk a much longer sentence, adding in the costs of the fancy prosecution case makes it that much worse.

Unoeufisenough 14y ago

Such aggressive prosecution has a lot do with the elected nature of sheriffs and DA's, a peculiarity of the US system. The political nature of enforcement and prosecution seems to change incentives towards maximizing conviction rates and publicity of high-profile convictions... sometimes it would seem at the expense or beyond what would be optimal for society or the crime.

helmut_hed 14y ago

I nearly stopped reading after this phrase: Conrad Black, one of the most consequential public intellectuals and businessmen of our era This guy is a CEO who raided his own company's coffers, to the vast enrichment of himself and the impoverishment of his shareholders.