Bennett L. Gershman

June 18, 2007 | National Law Journal

The partisan politics of the U.S. attorney firings has infected the law enforcement decisions of all 93 U.S. attorneys, and every decision now must be scrutinized in the crucible of political ideology rather than good prosecutorial practice.

By Joel Cohen and Bennett L. Gershman/Special to The National Law Journal

5 minute read

February 19, 2007 | National Law Journal

The prosecution of three Duke University lacrosse players for the rape of a young woman at a party has exposed to a national audience an unbridled abuse of prosecutorial power.

By Bennett L. Gershman and Joel Cohen/Special to The National Law Journal

5 minute read

March 30, 2009 | National Law Journal

The Supreme Court's current approach to free speech has been marked by confusion and uncertainty. The court has attempted to fit disparate cases of protected speech into artificial categories that often bear little connection to the nature and circumstances of the speech. The result is a jurisprudence of labels whereby constitutional adjudication has become mechanical and efficient, but costly in terms of protecting speech. In particular, the new category of government speech defies coherent analysis.

By Bennett L. Gershman / Special to The National Law Journal

4 minute read

January 10, 2005 | National Law Journal

With all the recent headlines concerning the grand jury subpoenas of a New York Times reporter and a Time magazine reporter, one would think that the government routinely subpoenaed journalists. But an expert on prosecutorial misconduct who has studied the matter says that such subpoenas are quite rare and lawful under U.S. Supreme Court precedent�unless the high court carves out a new privilege for reporter-source confidential conversations.

By Bennett L. Gershman Special to The National Law Journal

5 minute read

June 02, 2008 | National Law Journal

In attacks on the prosecutor in the Sean Bell case for not trying hard enough to win, media and "trial experts" have characterized his effort as incompetent. But blaming the acquittal of three police officers for killing Sean Bell outside Club Kalua in Queens, N.Y., on prosecutorial ineptness is misdirected. It ignores crucial considerations that no fair-minded prosecutor could avoid. A prosecutor's legal and ethical duty is not only to win, but to win while also serving the cause of justice.

By Bennett L. Gershman & Joel Cohen / Special to The National Law Journal

5 minute read

November 10, 2006 | National Law Journal

In September, the chief judge presiding at a different Hussein trial from the one that reached the verdict was unceremoniously thrown off the case by the prime minister of Iraq�not even a courtroom participant�for having stated to Hussein in the middle of the trial on the record: �You were not a dictator.�

By Joel Cohen & Bennett L. Gershman/Special to the NLJ

5 minute read

July 21, 2003 | National Law Journal

The attorney's role goes well beyond the courtroom. It includes, for better or worse, defending his or her client's reputation and seeking vindication in the court of public opinion. To achieve this end, should an attorney's confidential communications to a public relations consultant-let's be straight, a spin doctor-retained by the lawyer be protected under the attorney-client and work-product privileges from compelled disclosure to an adverse party or investigating grand jury?

By Joel Cohen and Bennett L. Gershman

5 minute read

February 15, 2007 | National Law Journal

The rape prosecution of three Duke University lacrosse players has exposed to a national audience an unbridled abuse of prosecutorial power. From the outset, the Durham County, N.C., district attorney, Michael B. Nifong, violated so many legal and ethical rules that the case has become a national scandal.

By Bennett L. Gershman and Joel Cohen/Special to The National Law Journal

5 minute read

August 09, 2004 | National Law Journal

To hear federal prosecutors tell it, since the Blakely decision, the sky has been falling in on the federal criminal justice system. Yet the possible demise of the federal sentencing guidelines means renewed hope for fairness in federal criminal sentencing.

By Bennett L. Gershman Special to The National Law Journal

5 minute read

May 22, 2006 | National Law Journal

Each year, more than 10,000 judicial opinions from the federal circuits contain one of the following directives: "Not to be Cited," "Not for Publication," "Unpublished" or "May Not Be Cited as Precedential Authority to This or Any Other Court." Why do courts forbid lawyers to refer to these cases?

By Bennett L. Gershman/Special to The National Law Journal

5 minute read