Q. Promotional material for F. Lee Bailey's appearance in Waterbury tonight at 7 p.m. at the Palace Theater says, "White collar crime, in business, government and even law enforcement, has reached a crisis level." What's a definition of a "crisis level" in your view?
A. Crisis is simply the Greek term for turning point. There is nothing that has occurred in the past six months of so that marks a significant turn. However, in the past few years, the Justice Department has increasingly assumed broader and broader definitions of criminal conduct, now routinely prosecuting doctors for medical decisions, bankers for investment advice and lawyers for things how they advise clients. When everyone is potentially guilty of a crime, government can pick and choose defendants for political reasons. Giving the government the power to silence critics with criminal prosecution is a crisis. We are at that stage.
Q. You've had acclaim for winning million dollar civil rights verdicts. Does this mean institutional white-collar crime is actually the problem? Is that where the increases are coming from?
A. I am sure that there is more than enough greed and malfeasance in the corporate world to make a conference of bishops weep. Our culture and society seem steeped in greed. Consider: we call all politicians liars and then vote for them all the same. It's hard to tell the good guys from the bad guys. In a culture where it is often difficult to tell good from evil, I fear a government that can make up the rules as it goes along more than I fear a few guys sitting in a boardroom.
Q. Is it a coincidence this program is being held in Waterbury? It seems to be the center of the universe, at least in Connecticut, when it comes to white-collar crime in government, at least.
A. No coincidence at all. Right now, the federal government is investigating claims against a prosecutor and defense lawyer. Federal agents are interviewing a defense lawyer's current clients. I believe that is unprecedented in the state, and it ought not to be tolerated. As for Waterbury, I don't know how to answer without offending.
Q. You're known as a criminal defense lawyer. Wouldn't that mean the explosion of white-collar crime is a good thing for your practice?
A. Criminal defense lawyers and the Catholic Church both depend on sin to survive. I, unfortunately, don't have the ability to compel folks to tithe.
Q. What's the solution? How do you rein in white-collar crime?
A. I am not sure it's the crime that needs reigning in. My sense is that government makes a crime of too many things. The real problem is over-criminalization. My sense is that we should let juries decide both facts and law. Jury nullification and informing a jury of how much it costs to prosecute a case and to incarcerate a defendant might just put the brakes on rampant prosecution. Consider Rod Blagojevich. Loudmouth? Yes. Criminal? Not yet.
Q. Is there a way to take the politics out of the prosecution of white-collar crime or what prosecutors perceive as white-collar crime?
A. Yes. Make it easier to dismiss claims based on theories of vindictive prosecution. Also, let targets bring to the attention of grand juries all of the information necessary to make an informed decision about whether to indict. Grand jury secrecy is becoming a close friend of the tyrant. It was not supposed to be that way.