Conviction At Any Cost: Prosecutorial Misconduct and the Pursuit of Michael Segal

Dedication

This book is dedicated to all of members of Michael Segal’s family, business associates and friends whose support was an inspiration and a pillar of strength, as well as those who unselfishly contributed to Michael’s legal defense at the risk of possible ridicule. In particular, this book is dedicated to four men who were very special to Michael and who have passed on. George Dunne was a mentor and role model. His character, standards of decency and support provided Michael with the skills to succeed in the insurance business as well as in life. Harvey Silets was Michael’s attorney and friend who fought so hard for him. Jerry Solovy was a close friend whose legal guidance Michael will always cherish. And especially, Uncle Marvin Leibowitz, who uniquely helped support Michael’s family.

Introduction

When Michael Segal first reached out to ask me to help him write a book about his federal prosecution, he was still in prison. I told him I wasn’t interested. He said he wanted me because of my expertise as a journalist writing about prosecutorial misconduct in Chicago and in California. I still said no.

What possibly could be interesting about the case of a man who had been convicted and sentenced to prison for—according to the charges—looting about $30 million from his Chicago company, Near North Insurance Brokerage? It was, it seemed to me, just another case of financial fraud in a city that seems to churn out financial frauds quite regularly.

I couldn’t have been more wrong.

Over time, Michael began sending me documents from the case that were enticing and began to spell out a tale of prosecutorial misconduct that had gone unchecked and unpunished despite layer upon layer of proof to the contrary.

The trickle of documents and court records began as a trickle and ultimately turned into a torrent. And I was hooked.

What emerged is the story you are about to read. It is the story of how federal prosecutors attempted to force Michael to wear a concealed recording device to try to entrap his friends and others—virtually anyone that the FBI told him to record—and the consequences of his refusal to do so. It a story about how Segal and his lawyers uncovered evidence he was a victim of cyberspying and the covert taping of his own lawyer.

It was a decision that cost him his company, the fifth largest insurance brokerage in the United States, and cost him his liberty for eight years. Close to 1,000 people lost their jobs.

This story, based on transcripts and court records, could be the basis for a spy novel, except that it is true. It is a story of how prosecutors ran roughshod over a man to destroy him and the company he spent a lifetime building and nurturing.

And in the end, there were no victims, there was no fraudulent intent, and the company that had supposedly been bilked suffered no losses.

How does this happen? It was a question Michael and his lawyers had been asking for years. This book is an in-depth look at what did happen—the playbook of the prosecution—and sheds some light on why it happened.

What happened here is not unique just to Michael. Over the last decade, cases of prosecutorial misconduct increasingly have surfaced across the United States and have affected the lives of a wide range of people—from the man on the street to corporate titans to elected officials, including a U.S. senator.

Michael has been adamant that his case should present a lesson that others may see and learn, particularly in the insurance world that he successfully inhabited for four decades. As a consequence, there will be discussions of the law and accounting and insurance from which lawyers, accountants, insurance professionals, and the public in general can profit.

So, what was Michael Segal’s crime?

Hopefully, this book will help the public set aside preconceived notions and judge for themselves—and reach their own conclusions. And along the way, perhaps readers will become more objective in their judgment of facts and seriously concerned as to whether the system of checks and balances that is supposed to operate under the U.S. Constitution can and does fail.

Through the prism of court documents, trial transcripts, and the personal recollections and insights of Michael Segal emerges a story quite unlike any other in Chicago history.

~ Maurice Possley

Chapter 1

The Arrest of

Michael Segal

On average, Chicago experiences fewer than 100 days of full sunshine a year. Most of the 265 other days are overcast and many of these occur during the winter months, when the wind off Lake Michigan gusts down through the canyon of high-rise buildings on Michigan Avenue.

Saturday, January 26, 2002, was uncharacteristically sunny. Shortly before 8 a.m., as Michael Segal strolled into the lobby of the Westin Hotel, the thermometer was pushing toward 50 degrees, inspiring hope for an early spring. And, beyond the weather, Segal had another reason for optimism. He was packed and ready to fly to London in just a few hours to nail down a lucrative insurance deal with the Sony Corporation. Weeks of extensive negotiation were about to pay off in a multi-million-dollar transaction for Segal’s company, Near North Insurance Brokerage. Segal came to the hotel at the request of Tim Gallagher, a former employee who had asked to meet for coffee. Gallagher was one of a group of former Near North employees—whom Segal had branded the Takeover Group—who had unsuccessfully tried to force Segal to hand over control of Near North about eighteen months earlier. Segal had quelled the insurrection and the employees all departed Near North.

Six days before the breakfast meeting, Near North filed a lawsuit in Cook County Circuit Court against Gallagher and his fellow Takeover Group members: Matthew Walsh, Dana Berry, and Jeff Ludwig. The lawsuit had been a bold move by Segal, but he had spent his life making bold moves. It accused Walsh and the others of attempting to destroy Segal’s company by stealing trade secrets, tortious interference and, in flagrant violation of their non-compete agreements, trying to shift tens of millions-worth of insurance business to Aon Corporation—a politically connected Fortune 500 company and bitter rival of Near North. Aon, one of Near North’s most aggressive competitors, had welcomed Walsh, Gallagher, and Berry with open arms and signing bonuses, $250,000 salary packages, and options for thousands of shares of Aon stock. Berry’s direct supervisor was initially Pat Ryan, the head of Aon. In the insurance industry, this was viewed as highly unorthodox. Now, it seemed to Segal, perhaps Gallagher was attempting to distance himself from the group’s ringleaders, Berry and Walsh. Although Segal wondered how Gallagher knew he was leaving town, he brushed that off for the moment. He would discover months later how Gallagher actually knew. What Segal also didn’t know was that the breakfast meeting was a trap.

As Segal entered the hotel lobby, he spotted Gallagher standing at the far end of the room and picked up his pace. As he approached, Gallagher thrust out his right arm and extended his middle finger. Before Segal could react, two men appeared at his side.

One introduced himself as Patrick Murphy, an agent with the FBI. I would like to speak with you about a confidential matter, Murphy said. Please come with me.

Astounded and trying to gather his wits, Segal replied, I’m not coming with you. I don’t talk to the FBI. You can talk to my lawyer.

Murphy’s voice hardened. I have authority to place you under arrest, Mr. Segal. But we don’t have to do it that way. You can come with me to hear what the government has to say. Segal had no way of knowing it at the time, but Murphy had no warrant or any authority to arrest him. This was the first of many misrepresentations Murphy would make.

At that moment, Segal suppressed what the lawyer in him had been trained to say, and instead followed the instincts bred in him through years of salesmanship. He relented and accompanied Murphy to the bank of elevators. Silently, they rode to the ninth floor, where Murphy directed him to a suite. There, he was introduced to Dean Polales, a prosecutor in the U.S. Attorney’s Office in Chicago.

What is this about? Segal demanded, suspecting that it was connected to the Takeover Group. Is this about what Walsh and those others are saying about violations of the Premium Fund Trust Account?

We’ll get to that, Polales said.

This was the same response that Polales would give whenever Segal asked about calling his attorney. A career prosecutor with nearly twenty years of experience, Polales had his speech ready. He began pulling out files relating to insurance contracts for Homer Ryan, son of Illinois Governor George Ryan (no relation to Aon’s Pat Ryan) and John Daley, brother of Mayor Richard Daley. Segal quickly realized that these documents had somehow been surreptitiously removed from Near North— that is, stolen—and provided to the prosecutor.

Mr. Segal, we are investigating you and your insurance business for fraud. Our investigation shows that you have violated Illinois Department of Insurance regulations that require that client funds be kept in a trust account. We have evidence that this has gone on for years. You are facing serious charges that can send you to prison for many, many years—probably for the rest of your life.

Segal attempted to interrupt Polales, but Murphy intervened. Wait until he’s finished, Murphy insisted. Hear what he has to say.

Polales went straight to the point. We want you to cooperate with us, he said. We want your help.

Now can I talk? Segal asked, naively thinking that he could explain the extent of the plot against him. But before he could continue, Murphy jumped in.

This is your chance to cooperate. If you don’t, we have forty agents prepared to execute search warrants at your condo, your home on the North Shore, your office, and your storage spaces. Cooperating means telling the truth. Do you understand?

Segal drew a breath. I want to reserve the right to talk to my attorneys about this, he said. I’m an attorney myself and I probably shouldn’t be saying anything, but there are some things you’ve got wrong.

Polales then said that while the government didn’t think Segal had done much of anything wrong, he would be required to help the prosecution and plead guilty to a felony. Polales went on to cite a supposed case as precedent—Segal believed it to be fictitious—that implied he had to accept a felony charge, which he realized would help the Takeover Group destroy Near North.

Suppressing his shock over the day’s events, Segal deduced that the Takeover Group had surreptitiously obtained the stolen documents that Polales had thrust at him to try to leverage his cooperation. These documents must have been used to entice the government to buy into what appeared to be a continuing effort by the Takeover Group to wrest control of Near North from Segal.

In fact, Segal later learned, Walsh and the others had peddled a tale of financial mismanagement at Near North to the U.S. Attorney’s Office.

On September 4, 2001, when Patrick Fitzgerald took over as interim U.S. Attorney in Chicago after being nominated by Illinois Republican Senator Peter Fitzgerald (the two men were not related), it was not lost on Segal that one of the senator’s biggest campaign contributors was none other than Aon’s Pat Ryan. Segal understood very well that nothing would please Pat Ryan more than the annihilation of Segal and Near North.

I’ve committed no crime, Segal said to Polales. You are being told a bunch of lies by some of my former employees, who are trying to destroy me and my business. They have no credibility.

Polales cut him off. You are going to have to take a felony, he repeated. Or it can be worse.

As Segal was led into another room of the suite to consider his situation, he wondered what could be worse than a felony. He had no idea that worse could mean a wide-ranging indictment with the potential to destroy his company.

While Segal was waiting, other members of the prosecution were appearing before U.S. Magistrate Morton Denlow and obtaining search warrants for the offices of Near North, as well as Segal’s Lake Shore Drive condominium and his home in the northern suburb of Highland Park. They also obtained a warrant for Segal’s arrest, which was highly unusual. It is extremely rare for federal agents to arrest any suspects except in crimes of violence.

Nearly an hour later, Murphy and Polales returned and Murphy was adamant.

I have fifty agents standing by, he said this time, increasing the number from forty. They are ready to go to your house. They are ready to go to your office. You need to work with us.

I have been sitting here without a lawyer for forty-five minutes, Segal retorted, and I’ve answered your questions. I’ve told you the truth.

You need to work with us, Murphy repeated.

I don’t like corruption, Segal said. What do you want me to do?

Wear a wire, Murphy said.

What? Wear a wire on who? Segal asked.

Anyone we tell you to, Murphy replied. You know everyone in this town.

I won’t wear a wire for anyone, on anyone, at any time, Segal declared.

What happened next would have seemed almost comical, if it weren’t so serious. Two agents who had been hiding behind a set of floor-to-ceiling curtains emerged and moved toward Segal.

Michael Segal, you’re under arrest, Murphy declared, as the two agents grabbed the 59-year-old Segal by each arm. Meanwhile, just as Murphy had threatened, FBI agents were converging on Segal’s home in Highland Park, as well as his Lake Shore Drive condominium. They had arrived at Near North’s offices and were tearing it apart. Nearly a dozen blue-jacketed FBI agents rushed into the lobby of Segal’s condominium and crammed into the elevator. The agents were accompanied by Assistant U.S. Attorney Virginia Kendall. Her personal participation was unusual; prosecutors rarely accompany agents executing search warrants.

In the apartment, Segal’s wife, Joy, a Ph.D. and certified family life educator, was holding a pro bono group therapy session. The agents abruptly informed her that the session was over and that her husband was under arrest. Joy was told she might not see him again for a long time, except through the glass window of a prison visiting room.

The agents presented a copy of a search warrant, along with an affidavit, apparently based on the claims of the Takeover Group, alleging that Near North’s Premium Fund Trust Account (PFTA) had a deficit of as much as $22 million. This was the start of the misrepresentation that the regulations did not provide for a traditional trust account and any alleged deficit would not a cash deficit. That allegation, according to the affidavit, was made by two former Near North executives identified only as Cooperating Individual No. 1 and Cooperating Individual No. 2. (Not surprisingly, they would turn out to be Berry and Walsh.)

When Joy asked to leave the condominium to attend to her daughter, Robin, who suffered from lupus, she was confined to a room for four hours—even though she was not under arrest—and was denied permission to leave, though no legal basis for detaining her was ever articulated. Joy had been expecting her daughter to come over and she asked if she could telephone her and tell her not to come. She didn’t want her to come in and be confronted by the FBI. But Joy was not allowed to make any calls. She was not even allowed to go to the bathroom alone—a female FBI agent accompanied her. She later said that she considered her treatment to be outright bullying by Kendall and the FBI agents. Whether it was legal or not, it served to preclude her from contacting an attorney. Segal himself wasn’t permitted to contact a lawyer until 3 p.m. that afternoon. Mysteriously, the FBI later revealed photographs of numerous white envelopes arranged on a bed in the condo, which the agents said had contained thousands of dollars in cash. Joy was aware of having just a few envelopes with cash—money that she had been saving over a period of time. Segal later concluded that the photographs were staged.

Meanwhile, Murphy had gone to Segal’s offices on Michigan Avenue, where he was directing the seizure of records. This seizure, Segal’s lawyers later asserted, violated Segal’s attorney-client privileges as well as U.S. Department of Justice and FBI guidelines. In addition to documents, the agents seized Segal’s desktop and laptop computers.

To be clear, law enforcement agents routinely seize electronic records during the investigation of white-collar crimes. Laptop and desk-top computer hard drives may very well contain records of events and communications that relate to the investigation. But because these devices hold significant amounts of information created over a long period of time, they may also contain information about unrelated matters that are protected by attorney-client or other privileges. When such records are seized during a search, or sought by subpoena, the government requires that a taint team—consisting of agents and prosecutors not involved in the investigation—be established to review them. This team is supposed to identify any files that the prosecutors handling the investigation should not be permitted to see. The idea is to shield the government from a defense motion to suppress electronic record evidence based on an argument that the prosecution and investigating team was tainted by viewing records it had no right to see.

Even when this procedure is followed to the letter, there is no guarantee that prosecutors will be shielded from all privileged, confidential, and irrelevant information.

In Segal’s case, there was no taint team at all.

Directing the search was not all that Murphy was doing that day. Telephone records later revealed that he used a Near North telephone to give directions to the FBI agents carrying out the searches of Segal’s house and condominium. Near North’s security cameras recorded Murphy sitting in the lobby using a Near North telephone, apparently because he could not get service on his FBI-issued cell phone.

The records showed that Murphy made multiple calls to Walsh and Berry, who in turn began calling the media in every city where Near North had an office to report Segal’s arrest. Berry also placed a call to the president of Aon.

As a result, someone at Aon contacted Sony officials in London to break the news that Segal was under arrest and would not be arriving as scheduled. Then they began their pitch to acquire the business for Aon. Within minutes of Segal’s arrest, Takeover Group member Jeff Ludwig, who was now working for insurance giant USI, began calling Near North employees to tell them that Segal was in federal custody and this was their chance to leap from a sinking ship.

The rest of the day was a blur for Segal. He was taken to the Dirksen Federal Building where he was fingerprinted, photographed, and put into a holding cell, pending an appearance in court.

The prosecutors attempted to delay Segal’s bond hearing, but U.S. Magistrate Morton Denlow, who had authorized the search warrants that morning, came back to court (though it was his birthday) and allowed Segal to be freed on a $750,000 bond secured by his signature. His release ended any government hope that by keeping him behind bars, Segal would change his mind and agree to cooperate.

There was no doubt that the entire day had been coordinated to do as much damage as possible to Segal, his company and his family. In fact, the Takeover Group leaked Segal’s arrest to the media before the U.S. Attorney’s Office issued a press release announcing it.

This was just the beginning of what would become a massive campaign of leaks to the media designed to smear Segal prior to his trial and to influence customers to panic and leave Near North. The ultimate extent of the damage would not be known for quite a while, but the infiltration of Near North by the Takeover Group—whose members were acting essentially as a stalking horse for the federal government—was deep.

Very deep.

Chapter 2

Hidden Agenda

Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.

– Franz Kafka, The Trial

People deal with shock in different ways. Segal had long ago been diagnosed with Attention Deficit Disorder (ADD), but rather than consider it a liability, he devoted his life to making the condition work in his favor to remain cool and rational in stressful situations. This was critical right now because this was the most stressful situation of his life. Segal already had concluded that the leaders of the Takeover Group—Berry, Walsh, and Gallagher—had been stealing records from his company. What Segal didn’t know and couldn’t have predicted was that federal prosecutors would become allies and protectors of the Takeover Group.

Still, the heavy-handed treatment at the Westin Hotel was baffling to someone with a law degree and four decades of experience running a respected insurance brokerage. The insurance industry is regulated by state law, under the McCarran-Ferguson Act, which is a congressional mandate. In all his years in the business, it had never occurred to Segal that the federal government would—or could—get involved in an insurance matter. Near North had never been named in a regulatory complaint in its four decades of existence and Segal himself had never received so much as a traffic violation.

If Near North’s Premium Fund Trust Account (PFTA) was out of balance under account reconciliation, as prosecutor Polales claimed, then the matter should be a civil one that would properly be dealt with by the Illinois Department of Insurance, which was empowered to issue a citation or impose a fine. Wasn’t this out of the federal government’s jurisdiction?

Segal huddled with Jim Meyer, a twenty-year Near North veteran and managing director who oversaw employee benefits. Meyer was puzzled. There hasn’t been a policyholder who didn’t get insurance or an insurance company that hasn’t been paid on time, he said to Segal.

Months earlier, when the Takeover Group first made the unsupported claim that the PFTA was out of balance in their attempt to force Segal to give them control of the company, Segal, out of an abundance of caution, had utilized the self-reporting option provided by the Illinois Department of Insurance.

Despite his exercise of caution, Segal now faced scrutiny from an Assistant U.S. Attorney, who was pressuring him to plead guilty to a federal crime and wear a wire to incriminate others. These are the tactics they use for street criminals, not upstanding citizens engaged in a business regulated by the state, Segal seethed. Fifty agents swooping down on my business and my home? This is all part of a hidden agenda—to make me buckle.

Still, he attempted to remain calm and to begin sorting out the day’s events. At the same time, his wife Joy, who had never even worked for Near North, was reeling.

They rang from downstairs and said there’s somebody down here to speak to you from the FBI, Joy told Segal after he was released.

About 15 agents came up and demanded the combination to our home safe. I tried to ask them what it was about, but they just started firing questions at me. I think I did everything wrong…but they never said I didn’t have to answer their questions.

She recounted how the agents and prosecutor Virginia Kendall kept her confined to a room for four hours while they searched the apartment and prevented her from calling the family attorney, Harvey Silets, or their daughter. It was humiliating, she said. Why stage this? I can understand if it was Bin Laden. This is Kafkaesque…it just doesn’t add up.

What they didn’t know was that they were about to face off with one of the most powerful juggernauts in the nation—the federal government. And as they sat there that night, they were unaware that a former Near North computer consultant already had stolen hundreds of confidential emails and shared them with the Takeover Group who were working with the FBI. Proof of this extensive hacking later was found on the server of Aon Corporation where Walsh, Gallagher, and Berry now worked. These stolen emails had given the Takeover Group and the FBI an almost daily window into what Segal was doing, including the initiation of the self-reporting process to the Illinois Department of Insurance.

The timing of Segal’s arrest was no accident. If Segal agreed to plead guilty to a felony and wear a wire, his civil lawsuit would disappear before it could expose misconduct by prosecutors and agents collaborating with the Takeover Group.

Segal later concluded that the date of his arrest was the preference of Dana Berry, the leader of the Takeover Group, because Berry had promised his new boss at Aon that he would secure the Sony Account and Segal’s arrest prevented him from going to London.

His arrest was the product of enormous planning. A virtual army of agents and prosecutors worked through the weekend preceding the confrontation at the Westin. The son of a friend of Segal who worked in the U.S. Attorney’s Office later confided that he had never seen so many prosecutors and agents in the office at one time. Records later showed that Takeover Group leaders working at Aon were in regular communication with the FBI just prior to the arrest.

Segal and Silets tried to puzzle out what was going on. One target of the raid appeared to be Near North General Counsel Sherri Stanton, whose office was searched even though her files contained extensive lawyer-client privileged documents.

Why Stanton? Segal believed that the government was looking for evidence that Stanton had advised him that his actions were legal, which would have made a prosecution of him more difficult—although neither Stanton nor Segal could have anticipated federal involvement. Seizing Stanton’s files also provided cover for the fact that the federal government had already obtained privileged information through other questionable means, including the theft of his emails.

Segal knew that there was no evidence that the PFTA was out of balance, since the new CFO Tom McNichols—who had been brought in by the Takeover Group in the effort to take over Near North—never performed the necessary accounting analysis, despite Segal’s urgings, that would show the state of the account. And up until his arrest, Segal had no reason to doubt that he would have the time and the opportunity to work with the Department of Insurance to get an accurate, reconciled accounting of the PFTA.

Ultimately, Segal and his lawyers concluded that the prosecution knew little about him and Near North and that Polales’s ploy had been a calculated risk.

Polales didn’t do his homework, Segal told the lawyers. He was sold a false story by these guys. And the FBI apparently has bought it. Indeed, years later, some former members of the U.S. Attorney’s Office characterized Segal’s arrest as a gambit by Polales to revive a career that was beginning to sputter after twenty years. A successful high- profile prosecution not only is a status booster, it can help secure a white-collar criminal defense position at a major law firm.

Segal had been surprised by the actions of the Takeover Group. He had long been known as someone who would hire people if they were ambitious and willing to work hard and learn, even if they did not have a college degree. Segal enjoyed educating them about the business and guiding them as they rose in stature at Near North. He was demanding, but well liked. Otherwise, how else could he have built a four-person operation into the country’s fifth-largest independent broker, with nearly a thousand employees?

Before they became the Takeover Group, Segal had groomed his employees for leadership and gave them personal attention. When some of them expressed concern about the fact that Segal was nearing the age of sixty, and expressed interest in owning stock in the company, Segal commissioned an employee stock ownership plan that widely benefitted employees.

Now, as he looked back, Segal began to realize that at the same time he was immersing himself in trying to expand the services and reach of Near North and its subsidiaries, the Takeover Group was working to undermine and sabotage him.

Segal wasn’t the only one caught off guard.

Lee McDonald, who, during an eighteen-year career at Near North, had become vice president of marketing, later recalled, We were a tight community. We worked together, and after work we met and socialized. Matt Walsh and I worked in the same department, while Dana Berry and Tim Gallagher worked in sales. Mike bent over backwards and put a lot of faith, trust, and power in their hands. They were favored, so it was kind of shocking when they betrayed him. When Dana Berry was ill, Segal called doctors across the country to get him the best medical care. Mike treated Berry with kindness when he had cancer, so it was doubly shocking when Mike was betrayed.

The betrayal went beyond the four corners of Near North. After Segal beat back their takeover, they intensified their efforts to sabotage Near North by repeatedly delaying action on requests for accounting information and spreading stories to outsiders that the firm was on the verge of collapse, even though the company had $38 million in retained earnings. Phone records later showed that as early as February 2001, nearly a year before Segal’s arrest, Berry, Walsh, and Gallagher had begun making numerous calls to Aon President and Chairman Pat Ryan. Berry even called the unlisted number of Ryan’s vacation home in Lake Geneva.¹

Segal and his lawyers agreed that Polales had miscalculated. With no underlying crime, the prosecutor had no leverage. The question that remained, however, was whether the unexpected alliance of prosecutors and Takeover Group members would be a serious challenge to Segal’s efforts to protect the company he had spent his life building and what tactics prosecutors would engage in going forward.

There was a lot riding on the case for U.S. Attorney Patrick Fitzgerald, who took office a few days before Segal’s investigation began. A flurry of favorable publicity had portrayed Fitzgerald as a white knight prosecutor from New York City who came from a modest background. Fitzgerald was a hard-charging prosecutor like his former boss Rudy Guiliani, whose flair for publicity and the dramatic had attracted enormous media attention and paved the way for his election as New York mayor in 1994.

Media coverage of Fitzgerald, who was officially sworn in as U.S. Attorney in October 2001, noted that he was sponsored by outgoing U.S. Senator Peter Fitzgerald, but later on, when the Segal case was in the headlines, the media did not touch the relationship between Senator Fitzgerald and Pat Ryan, the head of Aon.

Before coming to Chicago as the chief federal prosecutor, Fitzgerald had spent only one day in the city—to attend a wedding in 1982. He scarcely knew the players, yet now he had greenlighted a high-profile arrest and FBI searches. Because this was his first major case, it was a case Fitzgerald could ill afford to lose.

He had a staggering array of criminal statutes to pick and choose from.

Beginning in the 1970’s, federal prosecutors had expanded their quiver of laws by the score. By 2001, the number of criminal statutes had run up into the thousands with hundreds of thousands of regulations in place to implement those laws.

Alan M. Dershowitz, a renowned criminal defense attorney, noted, while writing about the explosion of criminal laws and resulting prosecutions:

Our system of checks and balances depends on a vigorous judiciary and legislature serving as a brake on excessive prosecutorial zeal. It also depends on an alert private citizenry willing to exercise its constitutional right, indeed obligation, to petition the government for a redress of grievances. But when the executive branch, through its politically appointed prosecutors, has the power to criminalize ordinary conduct through accordion-like criminal statutes, the system of checks and balances breaks down.

In 2015, Michael B. Mukasey, former U.S. Attorney General, writing for The Heritage Foundation, said, Overcriminalization is a serious problem and needs to be remedied before it further worsens the plight of the people tripped up by it and further injures the public interest… The Congressional Research Service reportedly has been unable to come up with a definitive total of federal criminal laws; the nearest they could come was to say they number in the thousands…The result is that there are more criminal laws than anyone could know.

But beyond the proliferation of laws and the resulting morass of confusion was an even more alarming development—an increase in prosecutorial misconduct in state and federal courts.

While the majority of prosecutors follow the precept that their function is not to get convictions but to see that justice is done, the number of cases where prosecutors have committed misconduct without being punished or sanctioned in any way has increased. In fact, prosecutors who engage in misconduct at times usually are promoted, not punished. Many become judges or are elected to public