Harvey Silverglate on Backdated Options

I’ve just run across a splendid column in Forbes by Harvey Silverglate (author of

ref="http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594032556">Three Felonies a Day ) on the methods federal prosecutors are usiing to wring guilty pleas out of defendants. “That almost all federal convictions come by way of guilty plea--95%, according to the most recent data available--likely reflects a shifting cost-benefit calculus, rather than an overwhelming recognition by defendants of their own culpability. With the prospect of decades-long prison terms and witnesses willing to throw former colleagues under the bus in exchange for a reward doled out by prosecutors, there's little wonder that federal criminal trials have become rarities; a guilty plea may appear to be even an innocent defendant's best option.”

Silverglate particularly discusses the Broadcom backdating case: “Prosecutors contacted one witness's new employer, made "inappropriate statements" and caused her to lose her job; another was promised leniency if he would testify against a defendant; the third was subjected to as many as 30 "grueling" interrogations and pressured to "plead guilty to a crime he did not commit," according to court findings. Because such conduct improperly influenced the three witnesses whose testimony would have been highly exculpatory, federal district Judge Cormac J. Carney acquitted defendants William Ruehle and Henry Nicholas in December 2009.”

Also well worth reading L. Gordon Crovitz’s WSJ review of Silverglate’s book : “Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, ‘Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations, even as ‘Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood. Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it.”

Crovitz’s last remark recalls the opening of Tim Wu’s 2007 Slate article “American Lawbreaking”: “At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like ‘false statements’ (a felony, up to five years), ‘obstructing the mails’ (five years), or ‘false pretenses on the high seas’ (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: ‘prison time.’”

It is something to keep in mind the next time that you hear that some outstanding businessman has been indicted. The question is not: Why did he break the law? It is: Why did they want to nail him?

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