But even the excessively compliant appellate court might raise an eyebrow were there a provable case that prosecutors, knowing of a prisoner's illness, intentionally deprived him of urgent medical attention. Such a practice might not, after all, be blithely seen as "so firmly established" as to be acceptable. Would the courts really tolerate prosecutors' softening up a potential witness by subjecting a diagnosed cardiac patient to the physical discomfort of being shackled for a 900-mile bus trip? Worse, would the courts turn a blind eye to forcing the months-long postponement of diagnosis and treatment of what soon reached stage-IV metastatic tongue and lymph cancer?
Such deliberate denial of life-saving medical intervention likely would be deemed violative of the Eighth Amendment's prohibition against cruel and unusual punishments, as well as federal statutes outlawing corrupt or extremely coercive practices used to extract testimony. (The likelihood that such testimony poses a high risk of being false adds yet another layer to the potential lawlessness of such tactics.) Yet the feds, emboldened by the apparent indifference of the courts, and by the blithe attitude of much of the press and public toward the plight of prisoners (particularly those dubbed "corrupt pols"), seemingly have begun to more broadly apply the aggressive tactics they learned (and justified, at least to themselves) during the war on terror. DiMasi may be just the latest victim of a "justice" system that threatens to brutalize the sensibilities of our entire society and make truth a dispensable commodity.
Harvey Silverglate is a lawyer and the author of Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2011). Zachary Bloom provided research and editorial assistance.