Biter Bit

March 12, 2008

America comes top in most measures of liberty and economic efficiency – its dispersion of political power leaves its citizens plenty of freedom, the energy and competence of its industry and military keep it wealthy and free. But its judicial system is a disgrace.

An example:

When New York Governor Eliot Spitzer was implicated Monday as a customer of a multistate prostitution ring, journalists rushed to brush up their knowledge of a 1910 federal law known as the Mann Act. The law, once known as the “white slavery” law, forbids the transportation of women across state lines for “immoral purposes,” including prostitution.

…suppose for a moment that he is charged under the Mann Act. Some might decry that a statute intended to deter human trafficking would be used against a “John” of the sort who is rarely prosecuted for being a customer of a prostitute. These observers would have a point.

Then again, Mr. Spitzer himself is intimately familiar with the prosecutorial tactic of dusting off old laws and repurposing them. When he became New York’s Attorney General in 1999, he seized on the 1921 Martin Act and wielded it as a club against some of the biggest firms on Wall Street. The Martin Act was originally passed to facilitate the prosecution of “bucket shops” that took advantage of small-time investors, but its use became relatively rare decades ago. It should have been repealed.

However, the Martin Act was convenient for Mr. Spitzer’s purposes because of the low bar it sets for bringing cases and the ability it afforded him to bring preliminary injunctions without even having to file a complaint first. Violations bring stiff civil and criminal penalties and, most important, do not require prosecutors to prove criminal intent.

As Attorney General, this latter-day Judge Jeffries ruined decent men and extorted hundreds of millions from honest enterprises. When one of his victims fought back, he behaved like a thug:

…Consider the report in the wake of a 2005 op-ed in this newspaper by John Whitehead.

A respected Wall Street figure, Mr. Whitehead dared to criticize Mr. Spitzer for his unscrupulously zealous pursuit of Mr. Greenberg. Mr. Spitzer later threatened Mr. Whitehead, telling him in a phone call that “You will pay the price. This is only the beginning and you will pay dearly for what you have done.”

Some months later, after more Spitzer excesses, Mr. Whitehead had the temerity to write another op-ed describing what Mr. Spitzer had said.

Within a few days, the press was reporting (unsourced, of course) that Mr. Whitehead had defended Mr. Greenberg a few weeks after a Greenberg charity had given $25 million to the World Trade Center Memorial Foundation — a group Mr. Whitehead chaired.

So Mr. Whitehead’s on-the-record views were met with an unsourced smear implying bad faith. The press ran with it anyway.

In 2005, Mr. Spitzer went on national television to suggest that Mr. Greenberg had engaged in criminal activity. It was front-page news. About six months later, on the eve of a Thanksgiving weekend, Mr. Spitzer quietly disclosed that he lacked the evidence to press criminal charges. That news was buried inside the papers.

The US tort (civil) legal system empowers the likes of Sptizer – it denies the presumption of innocence, keeps witnesses’ identities from defendants, attackers don’t have to pay their victims’ costs if they fail so force defenders to run up enormous costs, and plea bargaining allows crooked lawyers to hide the identities of their accomplices.

Although it’s unfair to assail a man for his private sexual behavior, no matter how distasteful, it’s quite fair to use the tort system to remove this creep.

Americans should clean up the system that gives unlimited power to such people.


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