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An act of judicial courage
Judge Tauro deserves praise for standing up to the US Attorney’s Office. Plus, Sinclair learns the cost of free speech, and Romney to Boston: Drop dead.

BY THROWING OUT a weak case against a lawyer charged with money-laundering, US District Court judge Joseph Tauro stood up for the principle that a person who’s been unjustly accused of a crime should be cleared as quickly and definitively as possible. Since no good deed goes unpunished, it’s not surprising that Tauro is now being attacked for disrespecting the jury and for not giving prosecutors a chance to appeal.

Paul Foster, of Charlestown, reportedly received some $100,000 in cash, which he used to buy an expensive car and a boat. He also acted as an agent for his clients by investing in nightclubs. But those actions are not what he was charged with. Rather, he was charged with knowing that the money came from the sale of illegal drugs, namely ecstasy and OxyContin.

Obviously Tauro was not impressed. Because on September 22, not long after the prosecution had finished presenting its case, the judge agreed to a motion filed by Foster’s lawyer, Robert Sheketoff, to throw out the case on the grounds of insufficient evidence. In so doing, Tauro invoked Rule 29, a federal procedure that is meant to protect people from unjust prosecutions, and that cannot be appealed.

The office of US Attorney Michael Sullivan wasted no time in twisting Tauro’s courageous act into an argument for why judges should be stripped of such discretion. Commenting on Rule 29, Sullivan’s first assistant, Gerard Leone, told the Boston Globe, "It’s the only time in the federal criminal-trial system that a judge has unreviewable, unappealable, unfettered discretion. You’ve got to scrutinize the rule that allows one person to substitute themselves for a jury."

You’ve got to scrutinize the rule. Never mind that federal judges are appointed by the president, confirmed by the Senate, and are uniquely situated to determine that a case is so weak it would be unjust to let the charges against a particular defendant stand for even another day. What prosecutors would prefer is that judges inclined to order an acquittal wait until after the jury has had its say. That way the prosecution could take its case to a higher court and plead for another chance. But if someone has been improperly charged with a crime, it is a judge’s solemn obligation to act so as not to burden the defendant any further with loss of freedom (even if not in jail, he or she has had to post bond and comply with travel limitations), money, and reputation. Besides, the reason that a defendant can appeal a verdict is because our society’s overriding interest in liberty requires it. The same does not apply to a prosecutor’s desire to try someone again.

By holding up Rule 29, along with Tauro’s use of it, as a problem that needs to be "scrutinized," Sullivan’s office is advancing the nefarious interests of his boss, Attorney General John Ashcroft, who is engaged in a fierce campaign to transfer power in the criminal-justice system from judges to prosecutors. This is the same mentality that gave us mandatory sentences, a disastrous assault on the independence of the judiciary that has filled our prison cells with nonviolent drug offenders.

Not only did Judge Tauro do the right thing, but he set an example for others to follow. Leone’s attempt at judicial intimidation should be dismissed with the contempt that it deserves.

DEMOCRATIC GROUPS are right to complain to the Federal Communications Commission and the Federal Election Commission about Sinclair Broadcasting’s plans to air excerpts from Stolen Honor on the eve of the presidential election. Stolen Honor has been universally described as an attack film aimed at defeating John Kerry. Such a broadcast clearly constitutes an abuse of the public airwaves, which Sinclair licenses from us — we, the people — at far below market cost. And it raises new concerns about the pernicious effects of corporate media consolidation.

The media environment is changing so rapidly that a new paradigm will soon be needed. Cable television, after all, is unregulated, since it does not use the public airwaves — hence the rise of GOP-TV, also known as the Fox News Channel. For the vast majority of viewers, broadcast stations such as Sinclair’s appear to be just additional choices on the cable box. With the print media, the First Amendment guarantees that the solution to problematic speech is more speech, not regulation or censorship. We are moving toward that point with the electronic media as well.

Thus, the real focus with Sinclair should be on the fact that it owns 62 television stations across the country. Not that many years ago, a company could own no more than seven stations nationwide. Today, ownership limits have all but ceased to exist — an inexcusable violation of the public interest, aided and abetted by Congress and by the FCC under presidents from Ronald Reagan to George W. Bush, and definitely not excluding Bill Clinton. It would be far less disturbing if 62 individual station owners had decided to air Stolen Honor rather than one broadcasting mogul — never mind a mogul who is a major contributor to the Republican Party, and who, as with all broadcast-property owners, is dependent on the continued favors of the FCC, whose chairman and majority members are Bush appointees. It calls to mind what happened in 2002 and ’03, when the major broadcast networks acted as little more than White House cheerleaders during the run-up to the war in Iraq — even as they were quietly lobbying the FCC for more deregulatory goodies.

The best long-term solution to the Sinclair situation and similar violations of the public trust is to bring back meaningful limits on how many media outlets can exist under one corporate roof. That’s especially true with one person or company owning multiple outlets in the same market, although in the case of Sinclair it’s the company’s national reach that is at issue.

Meanwhile, Sinclair is finding out that the First Amendment cuts both ways. Activists are speaking out and advertisers are beginning to respond to calls for a boycott. The stock price is down, and the company is on the defensive after firing its Washington-bureau chief, Jon Leiberman, for calling Stolen Honor "biased political propaganda, with clear intentions to sway this election."

The lesson for Sinclair — and for others that would follow in its path — is that turning its airwaves into a political-attack machine is bad for business. That’s speech that everyone, including its shareholders, can understand and appreciate.

THERE IS NO line below which Governor Mitt Romney won’t eagerly dive to advance his expansive political ambitions.

In taking a far-right stand against the Massachusetts Supreme Judicial Court’s Goodridge decision, Romney targeted not just thousands of gay and lesbian couples who wished to marry, but also the people of Massachusetts. Romney, in effect, positioned himself as the chief critic of the state he purportedly leads so that he could cast himself as a plausible entry in the 2008 Republican presidential sweepstakes.

Now Romney is running against Boston, the capital city and the cultural and economic engine of New England. In support of his so-called Reform Team — 131 Republican candidates for the legislature — the Massachusetts Republican Party, which is firmly under Romney’s control, is attempting to frighten suburban and rural voters into believing that their tax money is disappearing down some sort of urban black hole (see "Talking Politics," page 16).

A mailing from the state party received by prospective voters in bucolic Concord gets the point across. Superimposed over an image of a cigar-chomping hack — complete with dollar-sign tie clasp — is the message WHY OUR TAX DOLLARS ARE SUPPORTING BOSTON, set in an appropriately Halloweenish typeface. A mailing against Lincoln’s senator, a Democrat, begins, "Time after time Susan Fargo has put the interests of Boston before us."

According to the Massachusetts Taxpayers Foundation, a conservative watchdog group that has clashed with Romney over the latter’s reality-challenged view of budget and tax policy, the accusation is just plain wrong: Boston actually ranks 34th among the state’s 351 communities in terms of state aid on a per capita basis.

More important, Romney’s attack amounts to mean-spirited fear-mongering, an us-versus-them campaign that seeks to whip up resentment among affluent suburbanites toward the urban poor — minorities, single mothers, and others for whom Romney has repeatedly demonstrated contempt. It’s despicable, and if there’s any justice, the governor’s reward on Election Day will be a resounding defeat for his Republican "reformers."

What do you think? Send an e-mail to letters[a]phx.com


Issue Date: October 22 - 28, 2004
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