Justice and the plea bargain

In September 2005 I wrote this piece about Eliot Spitzer. Now the man is just days from election as governor of New York.

New York State will next year vote in an election in which a deeply ambitious politician will lay down a marker for the Presidency. No, not Hillary Clinton, Eliot Spitzer.

Dateline 15 September 2005

Spitzer is building his current reputation on the back of undermining justice and the rule of law. He is claiming high profile business scalps, and in doing so inventing new criminal laws without reference to the legislature or even judges and juries. We face the truly astonishing situation that laws are both written and executed in the Attorney General’s office. The people of New York are not involved, neither as electors nor as jurors.

This seems amazing. How can an elected official invent new laws? How can people face fines or even jail-time without even a trial? The answer is by means of plea bargaining. Spitzer prosecutes businesses for controversial – and even uncontroversial – business practices, threatens them with dire consequences, then offers a plea bargain for the whole thing to go away.

For a publicly quoted business this can be a tempting offer, even if the directors are convinced they did nothing wrong. Court cases can take years and cost millions of dollars in legal fees. The thing most guaranteed to depress a share price is uncertainty. To end the uncertainty by paying a fine no larger than the legal fees that would be involved in proving your innocence is the easy choice. Spitzer can make these threats because he is not spending his own money. Who ever heard of a prosecution being dropped because the prosecutor ran out of money?

But the result is a grandiose assault on New York State’s civil liberties. In Common Law jurisdictions such as the United States, precedents are binding. And Spitzer is setting precedents which extend the law into new areas without judges interpreting the law or juries considering the matter of guilt or innocence. The prosecutor, acting alone, has become a kind of mafia, operating a protection racket in which businesses must pay up or suffer the consequences.

When Spitzer is forced to go to court, as in the case of Theodore C. Sihpol, a former broker with the Bank of America, his case proves to be weak. Sihopol was threatened with 29 counts and 30 years of jail-time, but was not cowed and preferred to prove his innocence. He was able to show, without needing to call a single witness, that the “crime” of which he was accused simply did not exist. The business practice in which he was engaged was perfectly normal and perfectly legal.

Disgracefully, he even had to sue Bank of America to get them to pay his costs. Sihpol even claims that Spitzer was involved the Bank’s decision to try to avoid paying. If he had lost that case, he might not have been able to afford to go to court. He would now be in jail for a crime no legislature ever enacted and no jury ever considered.

This case is a stain on the career of a man who wants to be Governor and, one day, President. New Yorkers should end his career next year.

Copyright © Quentin Langley 15 September 2005

This article first appeared in Lake Champlain Weekly

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