Harvey A. Silverglate: Railing Against Injustice

November 14, 2005

Editor’s Note: This is the 14th in a series of "How I Got That Story" interviews featuring the winners of the 2005 AltWeekly Awards. First-place entries are collected in the book "Best AltWeekly Writing and Design 2005."
 
It is difficult to say whether Harvey A. Silverglate is primarily a lawyer or a journalist — if the choice is really necessary. It was journalism that inspired him to enroll in Harvard Law School to hone the sophistication of his legal reporting, and it is his subsequent career in law that continues to inspire his journalism. Years ago, he says, he was offered a position as a reporter on legal and court matters for The Boston Globe, but he was told he would have to give up his legal work in order to cover any trials. He refused and instead found a way to pursue careers in law and journalism simultaneously.
 
Silverglate — along with his former research assistants Carl Takei and Dan Poulson — won an AltWeekly Award for Silverglate’s political column in The Boston Phoenix, Freedom Watch. The three columns entered in the competition included one on the Supreme Court’s consideration of three cases concerning the rights of "enemy combatants" held at Guantanamo Bay, Cuba; another on the need for an "innocence commission" in Massachusetts; and a third on street artists’ struggle for the right to perform in Boston’s public spaces.
 
While The Phoenix has been the primary venue for Silverglate’s commentary for the last three decades, he’s no stranger to the mainstream press. His op-ed pieces have appeared in The Wall Street Journal, The Boston Globe, The Boston Herald and The Philadelphia Inquirer. He also occasionally contributes to The National Law Journal.
 
Whether Silverglate is occupied as a journalist or a lawyer, it’s safe to say that he’s busy. The week of this phone interview, three of his cases had turned "frantic at the same time." He had a lecture to give at Rockford College in Illinois on Tuesday, and another lecture to give to a conference of New England appellate judges on Friday. That was followed by a weekend board meeting in Philadelphia for the Foundation for Individual Rights in Education, of which he is a co-founder and member of the board of directors.
 
A lot of professionals are frustrated in their jobs because of what they see as corruption or incompetence in their field. Do you use your column to vent your frustration with your own field of work, the criminal-justice system?  
 
Absolutely, and I’d say that’s the main thing that I do with my column. What I find particularly galling is the extent to which reporters are taken in by prosecutors, to which they’re taken in by courts. A court writes an extremely dishonest opinion where it mischaracterizes the facts of what happened, and the reporters never go to the record. They simply take the appeals court’s word for it or the prosecutor’s word for it, and I find that to be extremely aggravating.
 
When the Supreme Court came down with its Guantanamo "enemy combatant" opinions, in all the newspapers, I didn’t read any reports that dissented from the judgment that the Supreme Court had struck down the Bush administration and rebuked it by insisting that it had to hold hearings for these "enemy combatants"; that they couldn’t just snatch them off the street and put them away forever without any kind of hearing, trial, charges, nothing. If you read the controlling opinion written by Justice Sandra Day O’Connor closely, you saw that the nature of the hearing was a complete illusion and that under the rules that the Supreme Court set for what these hearings were supposed to be, no defendant could ever possibly win, ever.
 
Do you think the legislation sponsored by John McCain in the Senate goes far enough to rein in the federal government?
 
First of all, I think it’s a very important start. And I find it very revealing that the administration wants to exempt the CIA because what that tells you is that it’s the CIA that’s doing the torturing. I happen to know that because a friend of mine has a lot of contacts in the army and actually gets e-mails from troops in Iraq. They are very upset at these news stories about torture because by and large it’s being done by the CIA and not the military. The only people that have been prosecuted for this have been a few of the military people. I do think the McCain bill is an absolutely necessary start, but if it exempts the CIA, then it’s virtually useless.
 
The rate of conviction of innocent people in Massachusetts that you describe in your column "The Criminal-Justice System Messes Up" seems alarming. Is that entirely a local issue?
 
No, it’s a national issue and I’m sure it’s worse in some places than it is even in Massachusetts. But in Massachusetts some local police departments, including Boston and, until relatively recently, Cambridge, utilize techniques for getting confessions that are almost guaranteed to produce an inordinate number of false confessions.
 
The main problem is that up until a year ago it was very easy in Massachusetts to introduce a confession into evidence through the words of the police officer who claimed the defendant made the confession, either in the station house or at the scene of the arrest, without it being recorded. And so you had no idea how they got it, what threats they made, and there were an inordinate number of false confessions.
 
We don’t have the death penalty now so at least there weren’t innocent people on death row, but there are many innocent people in prison, and it has taken an enormous amount of effort in order to try to point this out.
 
Would you prescribe the same sort of innocence commission that you advocate there for other states?
 
Absolutely. It’s absolutely essential to have independent oversight of police work, particularly in the confession area, but not only there.
 
Do you have a special affinity for Boston¹s street musicians that inspired you to take such a serious look at their cause in your column "Street Artists Fight to Perform in Boston"?
 
I do. And I have a special affinity for allowing First Amendment activity in public spaces. If there are two competing models, one is a nice clean place — streets that are tree-lined and have benches and that are nice and quiet —  versus street life that’s really vibrant and noisy and a little turbulent, I prefer the latter. I’m a city person. I was born and raised in Brooklyn.
 
Boston is a real city. I like real cities, and I think real cities have to be a little messy and a little turbulent.
 
In two of your winning columns you share the byline. Who do you work with, and how do they contribute?
 
When I left the active management of my law firm, I moved most of my work to my home office in Cambridge. I have the whole top of the house, several rooms, and I have a full-time research assistant. I try to hire people who, among other things, are good writers because they help me with the editing of the work I do. When I have a research assistant who is really a good writer, and who helps me very substantially, and who actually rewrites what I’ve done or writes a few paragraphs, I make that person a coauthor. I think it’s ethically very questionable not to do that. And so I do it.
 
Carl Takei and Dan Poulson were each named as coauthor of a column. That’s because both of them are absolutely superb writers and, in fact, both worked on the Brown Daily Herald when they were at Brown University.
 
Who do you think reads your articles, in other words, what groups? Are you reaching government officials?
 
I know that they’re circulating among judges now by e-mail when I have a column out. A few of my friends are judges; they tell me so. I know that they are circulated around police departments. I know for a fact that they’re read by a lot of other journalists. I feel that my ability to influence what’s reported elsewhere and what goes on is fairly substantial.
 
What kind of relationship do you have with your editors at The Boston Phoenix?
 
I have a terrific relationship with The Phoenix, which is one of the reasons why I’ve continued writing for them for all of these years when I’ve gotten other offers. Number one, the editors there are the most talented editors at any newspaper I’ve worked with.
 
I happen to have a relationship with the editor in chief, Peter Kadzis, and so I’m able to talk to him about a story. Almost always, they will approve a story that I want to do. They might suggest to me a little different focus but very rarely do they tell me no. I’m also a personal friend and occasionally an attorney for the publisher, Stephen Mindich, and have been for 30 years so I have deep relationships with people at that paper.
 
Is there anything else that has kept you at a local paper for so long? Are you able to write things for an alternative weekly that you wouldn’t be able to get into the more mainstream publications?
 
The Phoenix has a much better sense for the news possibility and the importance of a lot of things that other newspapers would consider too esoteric for their readers. Maybe it’s because I’ve known the editors for so long that they believe me when I tell them this is a great story and it’s being misreported in the daily press, but they give me a tremendous amount of independence, flexibility and credibility.
 
I’ve just had this productive, mutually reinforcing relationship with the editors. It’s a paper that really worries about good writing, interesting writing and important writing. It’s what the Village Voice used to be.
 
Andrew Vanacore is a sophomore in the Philip Merrill College of Journalism at the University of Maryland. He was a freelance correspondent last summer for the Suburban News near his home in New Jersey.

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