Lord Conrad Black and James “Whitey” Bulger are vastly different men. But both federal prosecutions raise similar fundamental questions about the propriety of certain prosecutorial tactics that interfere with a defendant’s constitutional right to mount an adequate defense. In my most recent “Injustice Department” column for Forbes.com, I explain how these tactics virtually assure convictions, regardless of guilt or the niceties of “due process of law.” Yet these unconstitutional techniques are the rule, not the exception, when the Department of Justice really wants to win a case without the defendant putting up much of a fight.

The column after the jump... 

Tufts undergraduates Aeden Pillai and Mike Yeung recently interviewed me on the topic of prosecutorial misconduct in the case of Bernard Baran for their course on contemporary issues in the criminal justice system. You can read the piece on Mr. Pillai's blog, with an excerpt after the jump. 

On December 3, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled in favor of Al Caronia, a pharmaceutical salesman who had been convicted of violating the Federal Food, Drug and Cosmetic Act by pitching the off-label uses of a narcolepsy drug to doctors at conferences throughout the country. Declaring that the Department of Justice’s overly broad interpretation of the law violated Caronia’s free speech rights, the Court vindicated a practice that has become commonplace among physicians.

Americans of a certain age will recall the child sexual abuse hysteria that swept the nation in the 1980s and 90s, dealing mainly with day care centers and other such institutions. Starting in California with accusations that day-care workers were molesting and raping children as part of Satanic cult rituals, the hysteria led to dozens of similar prosecutions. It is a testament to the absurdity of the hysteria that almost all the accused have since been exonerated.

I worked directly on the infamous Fells Acres/Amirault and Bernard Baran cases here in Massachusetts, the latter of which involved a defendant prosecuted largely because of his homosexuality. The surviving Amiraults are now out on parole, and Baran was exonerated by the courts when tapes surfaced showing social workers planting false memories of abuse into the minds of children who attended the day care center he worked at.

Just as egregious is the case of the San Antonio Four, in which four women have languished in prison for twelve years for allegedly molesting two children. Long thought to be settled, the case has sprung back to life now that one of the accusers has recanted and one of the defendants has been released on parole. The National Center for Reason and Justice, on whose board of directors I serve, has taken up the women’s cause, helping fund the women’s defense team and paying for a polygraph attesting to their innocence.

In our latest article for Forbes.com’s “Injustice Department,” my research assistant Zachary Bloom and I examine the egregious facts of the case, and discuss the necessity of overcoming the courts’ bias towards “finality” rather than justice in cases like that of the San Antonio Four.

Continued after the jump...