“Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction–including disenfranchisement, incarceration and even deportation–but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society. When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted.
Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn’t commit. But not everyone is so lucky. The government shouldn’t have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction. Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal. And, perhaps, that the government will be more cautious in the future.”
The problem with prosecutors that interpret the law in new and creative ways is that defendants haven’t been given notice that their conduct is a crime. The hapless targets of ambitious prosecutions are held out as “examples;” but the trouble is, they didn’t know that their conduct was unlawful at the time. Advance notice is a cardinal principle in criminal law. If the government wants to crack down on shadey financial dealing, damaging the environment, and the like–great. But strong laws should be put in place before the fact. Weak ones should not be stretched by prosecutors to fit every occasion.