Book Review: “Three Felonies A Day,” Or Not

The concept was fabulous.

The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware the he or she has likely committed several federal crimes that day.  Why” The answer lies in the very nature of modern criminal laws, which have exploded in number but also become impossibly broad and vague.
Wow.  Add to that tease the name Harvey Silverglate, formerly law partner with now Massachusetts District Court Judge Nancy Gertner, as close to defense lawyer royalty as there is, and this is a book you want to read NOW.  So when  Three Felonies a Day, How the Feds Target the innocent, wound up in my mailbox, I put everything else aside to get right to it. A very nice note from Harvey suggesting this might be something I would like, to boot.

All that excitement.  All that promised.  Burned in the first chapter.  The first case Silverglate writes about is that of Cuban-American Hialeah, Florida Mayor Raul Martinez.  It seems the good mayor accepted a plot of land from a developer who concededly sought to ingratiate himself the Mayor for substantially below market value.  Harvey finds this case outrageous, because Martinez gave no particular quid pro quo for the generalized bribe.  The guy wanted to be Martinez’s “friend”.  Martinez wanted to make some walking around money.

Skid to stop.  Harvey, that’s not what this book was supposed to be about.  Sure, it may be questionable whether Martinez’s conduct met the elements of official corruption, but his conduct smelled awfully bad and it certainly isn’t an “average” joe story, unless all your buddies happen to be the Mayor of Hialeah.  And this is Chapter 1?  Are you telling me you couldn’t find a decent story to suit your premise for Chapter 1?  That’s not a good sign.  Where does the book go from here?

It goes down, down, down.  The book goes on to tell war stories about some of Harvey’s old cases and some other well known oddball prosecutions, ranging from physicians overprescribing medications to the Arthur Anderson prosecution to Buffalo’s nutty Professor Steven Kurtz, whose artwork is comprised of shiny but harmless bacteria, raising a ridiculous bioterrorism scare unearthed when the ambulance came for his dying wife.  Bizarre?  Sure.  But related to the premise of the book?  Not even close.  These aren’t your average professionals, and these aren’t your ordinary, everyday activities that landed you in the federal dock. 

Silverglate’s long career as a criminal defense and civil rights lawyer yields some interesting cases, but his lawyerly writing style, formal to a fault, sucks the fun out of his story-telling.  It’s hard to switch from briefs to books, and few people consider briefs fun summer reading.  The shame is that had Harvey offered this book on a bunch of his old cases, and had loosened his tie just a bit as his fingers tapped out each Latin-derived word, this might well be a book a lot of criminal defense lawyers would want to read.  While Harvey Silverglate’s name may not be a house-hold word, he’s done some great work and has great stories to tell.

But the promise of the back flap, the title itself, made the contents disappointing.  As I made my way through the chapters, one problem kept slapping me in the face: In the scheme of unfair, abusive, overreaching prosecutions, Harvey’s cases didn’t even make the first cut.  To the extent I already knew about the cases, they offered no new insight, as if Harvey was cautious not to disclose anything too personal and perhaps covered by privilege.  That’s fine, but if you’re not going to tell more than what’s already publicly available, there’s really not much reason to tell the story again.

More troubling was that the book essentially disproves its thesis, that while the government could use the broad, vague wealth of laws available to it to go after the most innocuous conduct by ordinary people, the book offers nothing to suggest it actually does.  In almost every instance, the conduct involved emitted a sufficient odor to distinguish it from the type of things that ordinary folks do.  While they reflect prosecutions that should never have happened, they aren’t so absurd or off the wall to cause fear amongst the masses or outrage within the bar.  The distinctions often relied on a technical understanding of law that only a legal wonk could appreciate.

Fear not, unless you happen to be a journalist writing the New York Post’s Page Six gossip column.  You’re not?  Then what was done Jared Paul Stern probably won’t make you shake in your boots. In fact, it didn’t move me at all. 

I’ve no doubt that Harvey Silverglate, with his distinguished career as a criminal defense lawyer, would be a great guy to join for a beer and listen to story after story of his storied career.  We all have our war stories, but few have been involved in as many big time cases as Harvey.  A book about them, however, doesn’t necessarily include the critical beer aspect or the camaraderie that comes into play when whispering in a dimly lit pub.  War stories are always better with a chilled mug in hand.

What leaves me feeling cheated is that I still want Harvey to make good on the premise of the book.  Is it three wire frauds from lying to your spouse about why you’ll be late for dinner?  I believe that there’s great stuff out there to show how the breadth and vagary of federal law criminalizes all of us, and I am downright miffed that he teased me so and left me unfulfilled.

If you want to hear the war stories of a lawyer with as much to tell as Harvey Silverglate, Three Felonies provides a quick trip through some of his best work.  But as an indictment of the federal criminal system, the book is barely a parking ticket.  It’s still a great and intriguing premise, and one that I still want to read more about.  But it’s going to take another book to seize upon this great idea and make it happen. 

11 thoughts on “Book Review: “Three Felonies A Day,” Or Not

  1. Windypundit

    Wow, your initial description of the book sounded awesome. What a letdown.

    I’m no lover of the way federal criminal law is handled, but I have my doubts that the federal government does “go after innocuous conduct by ordinary people” (with the exception of a few horror stories). I suspect that the government is far more likely to go after innocuous conduct by annoying or famous people. E.g. Mary Beth Buchanan going after political opponent Dr. Cyril Wecht for using a county fax machine for private purposes and supposedly overbilling his clients (none of whom complained). That is, I suspect that prosecutors pick some of their targets for non-criminal reasons and then find charges.

    But I’m mostly working off news reports, maybe you see a lot of below-the-radar prosecutions for no good reason…

  2. SHG

    I suspected that the gist of the book was to show how our everyday lives effectively result in normal conduct sufficing for federal prosecution, sorta an overcriminaliztion manifesto with some poignant examples.  There are plenty of examples, everyday, with each of us having our favorites or those that most closely affect us.  The book is out there somewhere.  It’s just not in the thing I read. I feel cheated.

  3. Brenda Rossini

    this notion I noticed some months prior in: In the Name of Justice (ed. Timothy Lynch), and the particularly relevant article was entitled “”You’re Probably a Federal Criminal,” by suddenly-embattled possible federal criminal/federal judge Alex Kosinski.

  4. SHG

    Judge Kozkinski’s chapter of the Cato Institute’s book certainly sets up the message, as noted here.  This book appeared to hold the promise of taking Judge Kozkinski’s point and running with it.  It looks like that opening remains up for grabs.

  5. John Kerr

    There’s a strong case to be made for Silvergate’s assertion. So it would be a grievous shame if Silvergate blew the opportunity, as Simple Justice smuggly suggests. I’ve ordered the book but have yet to read it.

    When I first learned of Silvergate’s book I thought, oh no. Yet another critic of the feds has written my book, the one I’ve been working on for two years. It’s tentatively titled “Doo Process and the Right to a Rare Trial.”

    What I’ve concluded is that, yes, the feds can target and bully into a plea agreement virtually any of us, rich and connected or poor and friendless.

    What protects citizens who haven’t yet been prosecuted is their anonymity and low profile, not English common law traditions or the Bill of Rights…which appear all but useless in the face of RICO, sentencing guidelines and a host of prosecutorial abuses stemming from the drug war.

    But do something to merit a headline (publicity for the prosecutor) or cross paths with a snitch willing to trade you for X-number of months off his pending sentence and, bingo, you’re a felon.

    Worst, the cavalry won’t be riding to the rescue. No elected politician will risk waking up the soft-on-crime demagogues to help an innocent or wrongfully accused citizen rolled by the feds.

    Three other writers who wrote my book were Andrew Napolitano, Gene Healy and Paul Craig Roberts. So if Silvergate fell short, read them.

    [Ed. Note:  Smuggly (sic)?  Send me your book and I may review it, just as Harvey sent me his.  But despite my great respect for Harvey, it’s no guarantee that it will get a rave review.  I call them as I read them.]

  6. Beth

    Federal Prosecutors, FBI Agents and the like, including Federal Judges have made their own little (or huge really) PONZI; their combined orchestration is tantamount to racketeering. In fact, it is racketeering in its truest sense. Not one of us gives a piss until one day they target one of us. This is how they are able to continue and thrive. When people collectively start picketing, making a lot of noise for that neighbor, real estate agent, friend, relative, business owner, who is maliciously targeted, then, and only then, will these “law people” be exposed. Nobody is watching, nobody want to be their target. So we all just wait and hope that they never knock on our door. We are all sheep. I was a sheep; then they came knocking on my door………

  7. Gerald N Unger

    I question what experience that author of this review has other than that of an Assistant U.S. Attorney, or prosecutor. From his comments it is obvious that he does not recognize the overcriminalization of behavior. Nor does he choose to recognize the fact that a majority of federal adjudications, (criminal trials are rare) stem from testimony from individuals whose veracity would be suspect on a good day, in exchange for a “deal.” Nor does he recognize that, Federal Prosecutors have a right to proffer a statement, and that in most instances a prosecutor’s advancement is determined by his conviction rate, just as a judge’s a emphasis becomes the length of his docket, and how many cases s/he can clear off the docket. Not to forget that a prosecutor is immune from prosecution for any action, or statement he makes in the performance of his duties, even if it ends up that an innocent individual is executed. In the justice system a defendant is no longer “innocent until proven guilty,” but “guilty till proven innocent.”

    Here’s how the system works, when the FBI comes calling. First no one should ever talk to an FBI agent(s), if they knock on your door, without benefit of legal counsel. And only then with extreme caution. The legal system functions under the illusion, that “perception leads to presumption.” That said the FBI will fit whatever you say into what they choose to presume. Once indicted, or arrested the defendant must hire defense counsel, that’s usually a costly endeavor, and usually done out of fear. A not guilty pleas is initially entered. That not guilty pleas stands, until the defendant runs out of money, the prosecution threatens more charges, or the prosecutor suggests to the defense attorney things like, “maybe we should look at your taxes,” and then the defense counsel will recommend taking a plea even if the defendant is innocent, because if the defendant goes to trial and looses, the sentence will be harsher.

    It is no longer a matter of right, wrong, or justice. Judge Jerome Frank stated it best, the justice system is a simple mathematical formula: R x F =D, the Rules which are subject to change, times the Facts which are subject to faulty memory, bias, etc. equals the Decision. So the decision is at best just a decision. Remember the truth never walked into a courthouse. Yet, the U.S. has more individuals incarcerated than any other country, including Iraq, and Iran.

    Its time the legal system and media stopped fooling themselves, and face reality. There are far to many lawyers, with little impetus other than financial. The days of great legal minds, the Clarence Darrow, Wm. Kunstler, Melvin Belli, and F.Lee Bailey are all but forgotten. Now the Justice System is all about, “welcome to lets make a deal.” The practice of law has gone from a thought provoking profession to being one of narasistic computer operators. Harvey Silverglate,Esq. took a stand to expose the routine mindset of the Federal Justice System.

  8. SHG

    Off drugs and on a soapbox? This was a review of the book, not the system. Please, take your meds before your head explodes and makes a nasty mess.

  9. Mark

    Talk about people NEEDING to be on medication, I think it is quite clear by your reply that you have either stopped taking yours on your own or need refills desparately.

    Today’s judicial “PROCESS” is a joke and a slap in the face to everyone that calls themselves an American, Harvey Silvergate has done little more than write the “HOW TO” survival guide for the 21st century, and can only hope he has more to come.

    There is no such thing as justice in our courtrooms, from the federal level all the way down to the local Justice of the Peace, it is all about “DEALS”, “CONVICTION RATES” even forced plea agreements taken from a defendant much as a thief would demand one’s money at gunpoint, as you either play their game or suffer the consequence of abandonment.

    You really need to step back and reaccess, or could it be that you are somehow a part of this travesty of a American Judicial Process?

  10. SHG

    Thanks for clearing that up. Harvey would be so proud of you. Really nice use of the occasional word in ALL CAPS for emphasis. Makes your tin foil hat look particularly chic.

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