Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

A Boston Criminal Defense Attorney Discusses Federal Court, Alleged Spies And Liberty

This weekend, we have been celebrating the birth of our country. Even a Boston criminal defense attorney recognizes the importance in that. In the meantime, the Cambridge couple (hereinafter, the “Defendants”) who were among 10 people arrested in three cities last week as part of an alleged Russian spy ring have been arraigned in Federal Court and await an opportunity to make bail and recover their freedom.

Good luck.

The government says that the Defendants were sent to live in the United States under false identities to hobnob in spheres of influence, an idea one civil liberties lawyer called laughable given their jobs as a software company executive and a real estate agent.

“These so-called spies really had a racket,” said Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent. “The idea that they were going to pick up useful intelligence in the circles they were moving in is absurd. They have defrauded the Russian intelligence agencies and gotten a decade of free support in exchange for no useful information.”

As Attorney Silverglate also points out, unless the investigation the FBI conducted over nearly a decade yields more damning evidence than what has so far been released, the people most harmed by the whole affair, Silverglate said, may turn out to be the American taxpayers.

“Can you imagine how much it must have cost to track these people for the last decade?” he said. “There are plenty of real dangers all over the world, and they’re spending our money on this?”

I would go a bit further…can you imagine how much it is going to cost to have these people in custody while awaiting trial as well as the cost of the trial itself?

On the other hand, we will likely not know how strong or weak this case is until it is about to go to trial. You see, the “discovery rules” which control when the prosecution must turn over evidence like Grand Jury minutes, are different in federal court from what they are in state court. The federal prosecutors do not generally release such incidentals until around the eve of trial.

Just to keep us….and the defense…guessing.

But, of course, the lack of fairness in trial preparation is but one of the charming little nightmares faced by federal criminal defense attorneys. After all, trial will not be for a long time. In the meantime, there is the little detail of liberty.

You see, regardless of the weakness or strength of the government’s case, it merely needs to show probable cause to arrest someone and to detain him.

Of course, the judge could deny the request to hold the defendants. Do you think, given the charges and publicity in the case, many judges are likely to do that…whatever the arguments in favor of it might reveal?

‘Tis the stuff that plea bargains in weak cases are made of…you would be surprised what some folks, innocent or guilty, will do to get out of custody and attempt to pick up the shambles of their lives.

Attorney Sam’s Take:

The “presumption of innocence”-type rights granted to criminal defendants are much fewer in federal court than in any Massachusetts state court. I have always found that to be rather ironic.

This was true, by the way, previous to September 11, 2001, so you can imagine how it is now.

It is the federal government which has the resources and expertise to conduct long-term investigations , squeezing various potential/actual defendants to become government witnesses and then, in a shroud of semi-mystery, grab the accused and put them in custody.

As mentioned, the actual specifics of the accusations being revealed (often in stacks of paperwork) on the eve of trial.

“Well, of course, Sam. We are talking about national security here! With such high stakes, do you really think we should show our hand and weaken the prosecution of spies?”

We often draw a false connection between the seriousness of a crime and the presumption of innocence/assumption of guilt equation. Somehow, we seem to think that the more serious the crime, the more likely the defendant is actually guilty. In fact, the two are entirely different and have nothing to do with each other.

In all my years of practice, I have never seen the law which indicates that reasonable doubt is no longer the burden of proof necessary when the crime is “extremely serious”.

However, people seem to buy into it. And this makes it easier for prosecutors to bring unfair pressure upon people and ruin lives that really should not be ruined.

But, hey, what do I know?

I believe it was Benjamin Franklin (one of who’s deeds we have been celebrating this weekend) who said that people who trade liberty for security deserve neither.

But, hey, what did he know?

Anyway, if you are facing serious charges and would like to consult with me regarding representing you , please feel free to give me a call at 617-492-3000 .

To view the original story upon which today’s blog was based, please go to http://news.bostonherald.com/news/regional/view/20100704experts_say_alleged_spies_likely_learned_little_in_us/srvc=home&position=also

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