Category: General Criminal Justice

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Friday, October 5th, 2012

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Friday, September 28th, 2012

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Thursday, September 27th, 2012

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Monday, September 24th, 2012

Defend the Right to Carry Cash and Travel Unmolested

Wednesday, September 19th, 2012

Eapen Thampy, Americans for Forfeiture Reform

Thanks to the hard work of Americans for Forfeiture Reform policy analyst Scott Meiner, AFR has been asked to submit an amicus brief in an asset forfeiture case that is being appealed to the 11th Circuit Court of Appeals. Below is a brief video I’ve made describing the case (yes, I know the video quality isn’t great; we haven’t had the money for a HD camera yet):

Meiner describes the Terrence Durr seizure and litigation in his post, “A Peculiar Idea of Proof“:

United States District Judge Clay D. Land has ordered the forfeiture of $21,175 seized from two ex-convicts by Deputy Drew Crane, of the Harris County, Georgia, Sheriff’s Office.

Neither of the men were convicted, arrested, or charged. No drugs or drug paraphernalia were reported on the men from whom the currency was seized. The claimant of the currency, Terrance Durr, has a 1996 felony drug conviction and a subsequent parole violation. Durr also has documented gainful employment–including an 8 year work history as a draft technician with Adam’s Beverage, an Anheuser Busch distributor.

The government presented no specific cognizable evidence of any drug transaction (or intended drug transaction) linking the currency to any specific illicit behavior. Durr presented evidence of why he had a substantial amount of cash on his person. The court found Durr’s evidence, and reasoning, unpersuasive.

What the ruling appears to boil down to is

  1. Durr is an ex-con;
  2. Durr had a fairly large amount of currency;
  3. The police wanted his currency;
  4. The police found his currency;
  5. Police recorded a positive K9 alert on his currency and on his companion’s vehicle;
  6. The officer said that the vehicle smelled of alcohol and marijuana;
  7. Durr cannot prove that his money was not intended, or derived from, something to do with drugs to the satisfaction of the court; and
  8. Thus, the government has “proved” that Durr’s cash constitutes proceeds traceable to an exchange for a controlled substance.

This is utter nonsense.

Durr may have intended to use the money for narcotics. Or perhaps he was going to do something else. We do not know. Nobody else knows either–except maybe Terrance Durr.

Durr presented evidence that he intended to travel to Atlanta, GA to negotiate with a bank on the imminent foreclosure of a dilapidated rental property that he owned. Prosecutors easily poked holes in the sensibility of his plan. However, they failed to offer evidence that the money was drug related–unless we are to assume that the means, a criminal record, and unreliable evidence meet the burden. Following this standard of proof would add a lot of forfeiture victims.

There are infinite possibilities as to how he got the money and to what he intended to do with it–whether they be licit or illicit.   But reasonable jurisprudence ought to tether forfeiture to a showing of substantial connection between specific articulated criminal acts and proof beyond a reasonable doubt.

AFR’s amicus brief will likely focus on the insufficiency of the nexus issue (that is to say, the complete government’s inability to establish a nexus between any crime and the seized cash and Judge Land’s breathtaking leaps of logic to justify the forfeiture).

Please donate to support AFR’s efforts on this front!

Where Does She Go to Regain Her Reputation? Will the Prosecution Be Punished?

Sunday, September 16th, 2012

American prosecutors hold enormous amounts of authority and the courts have deferred to them at every step. Even when there is prosecutorial misconduct or when prosecutors bring cases to trial while knowing they have no evidence, they almost never are punished. Only the innocent, who often have to spend themselves into financial oblivion to defend themselves, are made to pay a price.

Last week, a West Virginia jury acquitted former teacher Autumn Rae Faulkner of having sex three times with a 15-year-old student. What is remarkable is the jury was out only for an hour before returning the acquittal, and anyone who has served on a jury knows that when someone is acquitted that quickly, jurors knew almost from the start that the prosecution had a false case.

In a blog post elsewhere, I bring up the question of what should happen to prosecutors who do this sort of thing? A judge earlier in the case had dismissed the original charges because prosecutors had illegally withheld exculpatory evidence, and for spite, the prosecution got a second set of indictments. Why? As far as I can tell, Steven Jory, the special prosecutor hired by the State of West Virginia to oversee the case, did it because he could do it. After all, Jory did not have to spend a dime of his own money while Faulkner and her family had to spend nearly all they had.

Because the U.S. Supreme Court has given prosecutors absolute immunity from lawsuits from private citizens, it is up to government authorities to discipline their own, and the government’s record in that department is abysmal. Defenders of the high court’s rulings say that prosecutors must be free to perform their jobs, and they should be free to make honest errors of judgment, even if the results are tragic.

Such a viewpoint is far to rosy for me. As Lord Acton famously wrote, “Power corrupts and absolute power corrupts absolutely.” In a just system, Faulkner should be free to sue Jory and his staff into oblivion, especially since there will be no disciplinary action from state officials. Jory’s recklessness and abuse of power in a case in which he not only had zero credible evidence, but also suborned perjury should have a better outcome than his going to the office the next day to see who next to prosecute.

In the meantime, Faulkner must pick up the pieces. She was accused of being a sexual predator, had her mug shot plastered throughout the media and the Internet, lost her teaching job, and was the subject of vile abuse from authorities, along with people who immediately assumed she was guilty. Even though the prosecution’s case was weak from the beginning, nonetheless she is the one who pays the price while the real lawbreakers are free to abuse both the law and innocent people again and again. If this is the best that the American system of “justice” can do, then it is a system that is not worth supporting and certainly not worth saving.

Update: The original prosecutor in the case, Richard T. Busch, was found to have engaged in misconduct that apparently was so bad that even West Virginia authorities no longer could cover for him. This website referred to Busch as a “congentital liar,” and The Record, West Virginia’s legal journal, reported last June that the “Lawyer Disciplinary Board, the prosecutorial arm of the state Supreme Court, filed a two-count statement of charges Feb. 13 against Richard T. Busch.”

The article is worth reading if only to see just how dishonest Busch really is. Randolph Circuit Judge Jaymie Godwin Wilfong finally acted against him after he lied to her in open court in the Faulkner case and in another one.

What is shocking to me, after reading this, is that the State of West Virginia continued to pursue criminal charges against Faulkner even though the state had no evidence other than the boy’s shifting claims of sex. Prosecutors should only bring charges when they themselves are absolutely convinced of the defendant’s guilt and the evidence is clear. Instead, West Virginia authorities continued to push the charges against Faulkner and ultimately ran into a brick wall, which jurors easily exposed.

Busch at the very least deserves to be disbarred and probably should be charged criminally. However, given the state of cronyism and corruption that infects West Virginia, I will be surprised if any real discipline is meted out to Busch at all.

William Anderson

Eric Holder in His “Fixer” Role

Monday, September 10th, 2012

Jesse Trentadue, a Salt Lake City attorney, gives a powerful speech about the murder of his brother, Kenneth, at the Oklahoma City federal lockup in the fall of 1995. This is a story of a brutal killing, how federal officials lied throughout the investigation, and how the current U.S. Attorney General Eric Holder orchestrated the cover-up.

In his speech, Trentadue not only tells the story of his dealings with the FBI, or what libertarian writer James Bovard recently called “a Stasi for America,” but also goes into detail about the FBI’s program, PATCON, which involved infiltration of various anti-government groups since the 1990s. One important point he makes is that much of the problem is institutional, not political. The Department of Justice and the FBI and other agencies ultimately protect themselves and operate essentially on their own.

During the 1990s, Eric Holder operated as the “fixer” for Attorney General Janet Reno, and from Ruby Ridge to Waco to the Oklahoma City bombing, Holder made sure that the government suppressed information that would have placed the Clinton administration in a bad light. (Murder tends to make one look bad.) Ultimately, Holder was rewarded by being appointed U.S. Attorney General under Barack Obama, and one only can imagine the crimes that Holder now is concealing.

William Anderson

Tennessee Tales: A Review Of Misappropriations, Missing Funds, Improper Accounting, & Stolen Drugs

Monday, September 10th, 2012

Scott Meiner, Americans for Forfeiture Reform

Recent tales of asset forfeiture abuse in Tennessee sparked my curiosity as to how Tennessee law enforcement departments are handling (or mishandling) seized property. I am looking for credible accounts (relevant to asset forfeiture) of misappropriation of funds, stolen drugs, improper accounting, et cetera… I’ve concentrated my search on smaller departments with the thought that a couple of bad apples in Memphis do not (statistically) imply a great deal. However, I welcome any articles or reports contributors suggest. Blatant malfeasance in small departments strikes us as more descriptive of the problem and more supportive of the argument that permitting law enforcement to self-appropriate the fruits of seizures abrogates the power of the purse (castrating the electorate’s power to compel responsive government).

Contact @ scott[at]

Initial findings:

3rd Judicial District Drug Task Force: Pervasive accounting deficiencies.

4th Judicial District Drug Task Force: DTF agent indicted for two counts of theft of Drug Task Force funds after $5,700 goes missing.

10th Judicial District Drug Task Force: $4,500 shortage in evidence and confidential funds. A  In excess of $17,000 in 10th Judicial District DTF credit charges lacked adequate documentation including $6,800 with no documentation. Quality reporting from Judy Walton of the Times Free Press reveals that, between 2008 and 2010, 10th Judicial District DTF agents spent more than $100,000 of seizure proceeds on hotels, meals, mileage and airfare. Walton also reported that former “DTF Director Mike Hall’s drug task force credit card was used to charge more than $50,000 between 2008 and 2010 on meals for himself, task force members and guests at local restaurants, as well as gifts, flowers and goodies for co-workers and office secretaries, credit card receipts show.”

12th Judicial District Drug Task Force: Failed 42 U.S.C. § 1983 claim reveals that local DTF paid 20% ‘referral fees’ to at least one informant for seizures leading to DTF forfeiture proceeds as a bounty.

13th Judicial District Drug Task Force: An employee improperly charged personal expenses to Drug Task Force accounts resulting in a cash shortage of $10,000.

17th Judicial District Drug Task Force: At a motion to suppress hearing, U.S. District Judge Aleta Trauger notes: ”Essentially, all of [17th Judicial District Interdiction Agent] Daugherty’s traffic stops are pretextual attempts to find illegal drugs.” [Incidentally, Daugherty was the 2008 national runnerup for interdiction officer of the year-based on numerical measure of of productivity.] Under oath, Daugherty admits that DTF funding is reliant on seizure revenues. When asked by defense counsel: ‘”Is it a fair statement that part of the reason that you were up by the Kentucky border at least 100 miles away from your four counties was the fact that it’s better hunting grounds up there?” Daugherty agrees that the drug-related activity in that area is “better.”” Judge suppresses Daugherty’s testimony after noting that she finds his testimony unconvincing and speculates why Daugherty does not employ available equipment to document cause for stops.

23rd Judicial District Drug Task Force: Sloppy accounting and a missing $54,000 in seized currency. NewsChannel 5 Investigates reports that “that officers with the 23rd have been paid thousands of dollars in bonuses, some years higher than others.” DA denies bonuses are tied to drug busts or amount of money officers seize. NewsChannel 5 Investigates presents evidence that motorists are being pulled over for fictitious traffic violations after the Dickson Police Chief, who serves as chairman of the board for the 23rd Judicial District DTF, claims: ”Every time they stop somebody it is a legal traffic stop.”

24th Judicial District Drug Task Force: Cash, guns, drugs, jewelry, and equipment under the control of the Drug Task Force were misused, stolen, and/or lost. Falsified records. Theft and smoking of crack cocaine stored in evidence, missing marijuana, etc. Drug Task Force Director at the time of the offenses “charged with one count of theft, one count of official misconduct and one count of knowingly giving a false statement to an auditor.” DTF’sAdministrative Assistant charged several days later with “one count of theft and one count of knowingly giving a false statement to an auditor.”

Crump Police Department: Multiple unauthorized removals of various seized drugs.

Dickson County Sheriff’s Office: Missing drug money. Fraud. Forgery.

Etowah Police Department: Seized drugs, cash, and guns missing.

Gallaway Police Department: Missing guns, guns issued to non-law enforcement, allegations of duplicate pay for police chief.

Hamblen County Sheriff’s Office: Sheriff’s Office employees alleged misconduct results in $14,000 cash shortage from missing commissary funds and use of an unofficial receipt book.

Hawkins County Sheriff’s Office: Deputy initially “arrested and charged with one count of burglary, one count of theft and one count of tampering with evidence” after narcotics go missing from the evidence room. Charges grow to 68 counts.

Henry County Sheriff’s Office: Sheriff and sheriff’s office business manager indicted after audit finds $162,000 shortage and falsified records, mail fraud, conspiracy, etc.

Lauderdale County Sheriff’s Office: “A Lauderdale County deputy sheriff repeatedly spent undercover funds for unauthorized purposes and falsified documents to cover his tracks, a report by the Comptroller’s Division of County Audit has found.”

McMinn County Sheriff’s Office: Deputy indicted for one count of official oppression. Deputy accused of stealing prescription drugs from motorists.

Monterey Police Department: Guns and some $30,000 gso missing. Former police chief pleads guilty to theft. Allegations that the current police diverted asset forfeiture funds to pay for the use of a bulldozer on his property leads local District Attorney to call for an investigation.

Sequatchie County Sheriff’s Office: Missing commissary funds and missing cash taken from inmates at processing.

Trenton Police Department: $73,000 in cash goes missing from police department. Police chief and his secretary are purportedly the only individuals with access. Town officials have no explanations.

Unicoi County Sheriff’s Office: Sheriff  indicted on multiple felony charges including “six counts official misconduct, one count of theft over $1,000, one count of tampering with evidence, one count of criminal simulation and one count of attempted aggravated assault.”

Wayne County Sheriff’s Office: Sheriff’s office sells vehicles for cash. Cash never recorded. Cash goes missing.

Wilson County Sheriff’s Office: Former Lieutenant accused of, among other things, falsely claiming to witness a drug deal between two men, holding the men at gunpoint, falsely arresting them and seizing their vehicles and cash, forging documents in an attempt to claim ownership of (several) other vehicles seized by the sheriff’s office, checking out unknown amounts of marijuana from the Wilson County Sheriff’s Office evidence room and arranging for its sale at personal gain, selling confidential information to the target of a drug investigation, burglarizing the residence of his former girlfriend to give the stolen items to his wife as gifts, and attempting to poison his wife. Bunch of other stuff gone too-including disappeared cocaine.

Whitwell Police Department: former police chief and former city recorder arrested for theft.

“What have you learned as a police officer about life and society that most people don’t know or underestimate?”

Saturday, September 1st, 2012

-Eapen Thampy

Thought this discussion on Quora was worth flagging, excerpts:

High-speed chases look like fun because they are.

Take away alcohol and stupid, and the world would require about 90% fewer cops.

Once you become a cop, very few of your non-cop friends will ever again treat you the same way.

Oakland, CA: A Political Economy of Policing and Law Enforcement

Friday, August 31st, 2012

Eapen Thampy

Innovative and insightful work from Ali Winston and Darwin BondGraham. Hard to excerpt, read the whole thing:

What do we mean by a political-economy of police and law enforcement? Over the last decade there have been numerous excellent studies of the prison-industrial complex, especially here in California where prisons have rapidly grown in their budgets, employment, and numbers of persons incarcerated. With the growth of prisons into a major branch of the state, an entire industry of small and large corporations that profit from contracting with prisons has been created, replete with trade associations, lobbyists, and powerful employee unions. Finally, a pro-prisons political constituency comprised of the local, mostly rural, cities and counties where carceral facilities have become major employers, and local tax revenue generators, has completed the complex. It’s a powerful political machine, now a significant sector of California’s economy that through its redistribution of resources to lock up hundreds of thousands of mostly men of color produces obvious winners and losers.

Surprisingly, police departments have been subject to much less study along these lines, even though  policing consumes more public revenues than prisons, and in spite of the ubiquitous presence of police in every city.

Oakland’s position within the Bay Area’s police and law enforcement economy is characterized by extraction. Because of decades of white flight, capital flight, and the devastating impact of state tax cuts and disinvestment in public schools, Oakland today is wracked by unemployment, poverty, and suffers from a lack of meaningful social and economic mobility for its flatlands residents, conditions that are synonymous with crime within these same communities.

Due to Oakland’s unique history and current political dynamics, harsh law-and-order approaches are most often advocated as the solution to the city’s crime problem. Parsing out the different constituencies that advocate the ‘more cops’ approach is a task that awaits much further study, but we can generally sketch out a picture of who wins and who loses because of Oakland’s unusually large allocation of city tax dollars to policing.

The short answer is that the surrounding majority white and middle class suburban cities of the East Bay benefit from Oakland’s massive spending on cops via the redistribution of tax dollars from Oakland to other municipalities.

Oakland spends roughly 40 percent of its general fund budget on cops. Police services is the single largest expenditure for the city. Compared to other cities of similar size in California, Oakland’s spending on police is much, much higher. For example, Sacramento spent about 23% of its general fund on cops in the 2011-2012 Fiscal year, this in spite of the fact that Sacramento and Oakland actually have comparable crime rates (Oakland has outpaced Sacramento in violent crime, while Sacramento has had more property crimes than Oakland in recent years, according to the most recent FBI crime statistics).

Oakland’s FY 2012-2013 budget appropriates 40% of the general fund for police services, far and away the largest focus of city government. Few other cities, even those with comparable rates of crime, spend proportionally as much on their police. (Source: “Oakland FY2011-13 Adopted Policy Budget”, p. vii.)

What Oakland obtains from its large commitment of tax dollars to policing is debatable. As the department’s budget has fluctuated over the years crime rates have also fluctuated, but not necessarily in a pattern suggesting a causal link. Oakland does, however, lose considerable tax dollars to surrounding suburban cities in the form of officer salaries. Most of Oakland’s cops don’t live in the city, meaning that their salaries and other compensation are spent on mortgages, consumer purchases, healthcare, and other forms of taxed consumption where they live. Thus, by our rough calculations, based on data provided by OPD and assembled from a database of public employee pay for 2010, at least $126 million left the city in 2010 in the form of officer compensation.

OPD’s highest paid staff, nearly all sworn officers, live outside the city, while the department’s lowest paid staff, including administrative workers, are far more likely to live in Oakland. None of OPD’s command staff live in Oakland. In a sense this means that the local jobs sustained by OPD, which recycle Oakland tax dollars into the city’s economy, are the lowest paid positions, giving the city very little bang for its police bucks.

Prison State Idaho Rents Beds From Colorado Prison

Thursday, August 30th, 2012

Eapen Thampy

From the Colorado Criminal Justice Reform Coalition:

BOISE, Idaho (AP) — The Idaho Department of Correction has flown 130 inmates to a prison in Colorado because Idaho’s prison don’t have enough room to hold the state’s growing inmate population.

The inmates were flown Tuesday morning on a chartered jet to Denver, and from there they took a bus to the Kit Carson Correctional Center in Burlington, Colo. The prison is owned and operated by Corrections Corporation of America.

Idaho’s inmate population reached more than 8,000 for the first time in April. The Department of Correction has been renting beds in county jails to ease the pressure, but that wasn’t enough to accommodate the demand.

Department Director Brent Reinke says the move is hard on families, but the state is simply out of room.

My Husband Is (Not Really) a Sex Offender

Thursday, August 30th, 2012

Hi Folks! It’s Lenore Skenazy from Free-Range Kids, where one of the issues we visit often is the corruption of the Sex Offender Registry, and how many of the people on it pose no risk to children, yet have their lives ruined. Recently I heard from a mom whose slow-witted 19-year-old son (still a high school sophomore) was convicted of possession of kiddie porn because he was looking at kids his same mental age — under 18. Then I heard from another mom whose son is on the list, too. When young men date women a little younger than them who are legally minors, this is legally considered statutory rape. If it’s consensual sex, I consider it a relationship. Here’s a letter I just got that makes me believe we have to revisit and reform the sex offender laws. It is the perfect companion piece to the post  by William Anderson, about how sex crimes get treated in the media and the courts. Any ideas about how to change all this — fast! — are most welcome. – L.

I know the registry is a joke. I live it first hand, as my husband is on it for a false accusation from his ex-wife falsely who manipulated her 13-year-old daughter into signing her name to an email that the mother wrote lying about him touching her. The reason the ex wanted retaliation was because he was given custody of the kids during a divorce because she is mentally unstable and a drunk. She showed him! He would not get custody anymore because of the accusations which she is now trying to do with her next oldest daughter in line…who told us what was going on and that she refuses to go along with it, because it’s not true. She now wants to live with us, but guess what? Se can’t, because her dad is on the registry and the courts will not allow it.

The older daughter that originally went along with the false accusations is now 18 and wants to see her dad. But she has told the next-oldest daughter that she can not come forward and tell the truth because she would “lose everything” she has. She doesn’t understand that she was a minor at the time and nothing would happen to her. Though it would possibly put her mother away for perjury.

My husband had a great job of 7 years and when they found out he was on the registry they canned him. He has not been able to find a job since. It’s been 8 months. No one will hire him because he is on the registry. He is not in the same category as a rapist, but is treated as if he is. The registry needs to be revamped.

I used to think the same as the general public: “Oh, he’s on the registry. He must be a child molester.” I no long believe that. There are many men and women on the registry that are harmless and should not be in the same category as a violent sex criminal.  – Stacie in Nebraska


Standing by her man.

Is Prosecutorial Misconduct a Product of a “Few Bad Apples,” or is the Barrel Mostly Rotten?

Wednesday, August 29th, 2012

Whenever I read articles dealing with prosecutorial misconduct, I invariably find a statement similar to this: “Most U.S. prosecutors are ethical and try to do the right thing, but there are a few who engage in unethical behavior.” In other words, every barrel has a few rotten apples, but most are just fine.

I used to believe that myself, but no longer. In fact, given what we know about human nature and the functions of boundaries, when prosecutors know that they face no consequences for their own behavior no matter how illegal or despicable it might be, we can expect stories like what recently was posted on this blog.

A bit of history is instructive here. For all of the talk of 1776 and the Constitution, the intellectuals, politicians, and voters of the United States essentially abandoned the constitutional republic that had existed since 1787 and embraced what this country is today: a Progressive democracy. One cannot understand modern law (and especially federal criminal law) and the role of bureaucrats and elected officials without understanding the tenets of Progressivism.

The U.S. Constitution and its Declaration of Independence were written on the premise that individuals are flawed characters that need any number of boundaries in order to keep baser instincts in check. Call it Original Sin or just the way things are, but deep down, most of us realize that we are capable of doing a lot of evil if no one or no thing stops us. Furthermore, there seems to be no limit to the human capacity of excusing or justifying the wrongness of our deeds.

Many of our original institutions were built upon this notion. On the “private” side, we have markets in which consumers can put even the most powerful companies out of business (i.e. General Motors) by refusing to purchase their products. Because government institutions are not consumer-driven entities (voters are not the same as consumers), they have to face different constraints, since governments are given a monopoly on deadly force. Because government agents can do an immense amount of harm to others while acting under the “color of law,” it is imperative that those agents be given consistent boundaries in order to keep them from using their legal positions to deny rights to others.

Progressives, on the other hand, believed that people were advancing through the evolutionary process, and that formal education and the “professionalizing” of various occupations would help create individuals who not only would be able to identify what was the “public good,” but also would carry out actions that would promote public welfare. Not only did they embrace legal institutions that would empower people who worked within government to impose their will whenever they believed it necessary to do so, but they also dismantled many of the boundaries that the law had created to keep government in check because, after all, educated and professional people did not need such constraints.

Living in an age where many, if not most, occupations require a license or some sort of formal training in order for people to engage in providing such services, we forget that occupational licensing and the establishment of credentials a “proof” of expertise and, more important, professional competence, really was a product of the Progressive Era. For example, before law schools became the powerful and influential and prestigious entities that they are today, at one time many lawyers did not even go to law school. Instead, people who wished to practice law would work as apprentices under practicing lawyers to learn their occupation.

Such a state of affairs would seem foreign to us, given that in our political economy, one cannot even cut hair without approval from a state-run agency.The bureaucratic hoops that exist for nearly every occupation might be formidable, but to many of us, they also are the New Normal. In fact, many people could not imagine a political economy in which many people from whom they purchase goods and services were NOT state licensed or approved by an official agency.

There are some among us who are True Believers in this system, those who believe that state-empowered agents, when given proper training and guidance, generally will do the right thing. Furthermore, because individuals outside of the legal system lack the expertise and good sense to be able to understand the law and how to apply it, society then must depend upon the “professionals” who will be well-trained and will have the proper educational and occupational credentials.

In other words, the people in the system really don’t need constraints because their professionalism and their training will ensure that they already know beforehand where the edge of the cliff might be. Such a system of selection, I have seen it argued, ensures that most of the people who become prosecutors are competent (they passed law school and the BAR exam) and ethical (they took at least one ethics class in law school), so nothing else is needed.

Obviously, we are dealing with a huge clash in how people regard human nature. On one side, we have the “good people” (prosecutors) going after the “bad people” (anyone arrested and charged with a crime). Because the “bad people” are so bad, we must give extraordinary tools to those who are performing the public service. Yes, it is true that every once in a while, a public servant becomes overzealous in a good cause and either stretches the law or takes some liberty with the truth.

Like many others, I would like to believe that the rash of prosecutorial misconduct that infects our courts today is just the product of overzealous people who sometimes get carried away going after the bad guys. However, I would be believing a lie if I were to say that is what is happening.

No, what is happening is much darker. First, it is true that most people in the system are guilty, and I would not dispute that point. Second, the actual number of truly innocent people is relatively small compared to the truly guilty, and I have no doubt that the “I am a hammer and you are a nail” syndrome takes effect in prosecutorial circles as it would elsewhere in a bureaucratic system.

But the cynicism I have witnessed in cases of actual innocence, from Janet Reno’s false child molestation prosecutions of 30 years ago to Mike Nifong’s cynical pursuit of rape charges against three Duke lacrosse players, charges he knew were false, to what I witnessed in Tonya Craft’s trial in 2010, tells me that something much deeper is happening. Don’t forget that Reno was rewarded by being named U.S. Attorney General (from where she touched off the biggest U.S. Government domestic massacre since Wounded Knee in 1890). Furthermore, when Nifong was spouting off in his interviews and when he was declaring he had no doubt of the players’ guilt, prosecutors across the country lined up in support of him. The forsook him only after he was caught red-handed in a lie during a December 15, 2006, hearing.

The Duke case was one in which the falsity of the charges was transparent from the beginning. We were expected to believe that three young men could beat a woman for thirty minutes, rape her, ejaculate on her, force her to have oral sex, and then not leave on speck of DNA? And U.S. prosecutors went along with that nonsense? Are we dealing with people who are so stupid that they cannot even understand the basic laws of time and space?

For that matter, was Janet Reno so utterly dense that she actually could believe that an adult could stick knives and even swords into the rectums of little children and not leave even a solitary mark? That adults in day care centers could be molesting children literally all day and no one who came into the place actually witnessed these terrible acts. And no one was missing the proverbial child who had been microwaved to death?

That a person who could believe this nonsense would be named the Attorney General of the United States tells us more about the state of American politicians than anything else. (Hillary Clinton claimed that Reno was good on “children’s issues.” Reno was so good that she managed to massacre a number of youngsters just a couple months after taking office.)

Furthermore, if Michael Nifong was a “rogue prosecutor,” then why did so many prosecutors speak on his behalf in the early days of the case? As Jonathan Turley noted in a column in the Washington Post, why in the world is someone like Nancy Grace, a former prosecutor who now is a legal commentator, become respected for her views on the law? He writes:

Consider the career of Nancy Grace. Before becoming a CNN and Court TV anchor, she was a notorious prosecutor in Alabama. In a blistering 2005 federal appeals opinion, Judge William H. Pryor Jr., a conservative former Alabama attorney general, found that Grace had “played fast and loose” with core ethical rules in a 1990 triple-murder case. Like Nifong, Grace was accused of not disclosing critical evidence (the existence of other suspects) as well as knowingly permitting a detective to testify falsely under oath. The Georgia Supreme Court also reprimanded her for withholding evidence and for making improper statements in a 1997 arson and murder case. The court overturned the conviction in that case and found that Grace’s behavior “demonstrated her disregard of the notions of due process and fairness and was inexcusable.” She faced similar claims in other cases.

You might have expected Grace to suffer the same fate as Nifong. Instead, she has her own show on CNN, and the network celebrates her as “one of television’s most respected legal analysts.” On TV, she displays the same style she had in the courtroom. (In the Duke case, her presumed-guilty approach was evident early on, when she declared: “I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape.”)

The Grace effect is not lost on aspiring young prosecutors who struggle to outdo one another as camera-ready, take-no-prisoners avengers of justice. Grace’s controversial career also shows how prosecutors can routinely push the envelope without fear of any professional consequences. Often this does not mean violating an ethics rule, but using legally valid charges toward unjust ends.

So, why do they do it? They do it because they can, and because no one tells them they can’t. Nancy Grace is exposed as a liar and a cheat, so she gets her own TV show and lots of wealth. If Grace had been honest, does anyone think she would be a celebrity?

Indeed, for most prosecutors, crime pays and it pays quite well. Robert Frost, in “Mending Wall,” writes of his neighbor who says, “Good fences make good neighbors.”

Good fences also would make for better police and prosecutors. Unfortunately, they don’t exist and the walls that are there constantly are torn down by people who claim we don’t need them at all.

School to Prison in Not So Many Words

Wednesday, August 29th, 2012

Via the ACLU of Mississippi:


— Eapen Thampy

Another Overturned Death Sentence, but What Happens to the Misbehaving Prosecutors?

Tuesday, August 28th, 2012

The American Bar Association Journal reports:

The California Supreme Court has ruled a death-row inmate is entitled to a new penalty hearing because the prosecution withheld evidence in his 1987 trial that he may have been threatened by a Colombian drug cartel.

The inmate, Miguel Angel Bacigalupo, will be sentenced to life in prison if prosecutors don’t pursue the capital sentence, the San Francisco Chronicle reports. A prosecutor in the case, Deputy District Attorney Joyce Allegro, is now a judge in Santa Clara County.

Allegro did not respond to the newspaper’s request for comment.

Bacigalupo told police that a drug dealer had threatened to kill him and his family if he did not carry out orders to murder the owner of a jewelry store and his brother, according to the opinion (PDF). Allegro told the jury there was no evidence of any threats and argued the murders occurred during a store robbery, the Chronicle says. An investigator for the DA’s office, however, had information from an informant that the killings were ordered because the victims had stolen drugs, according to findings by a judge who served as a referee in the habeas appeal.

The DA’s office had argued it met its legal obligations by giving the defense a police report mentioning the confidential informant, who said she had learned the motive for the killings was revenge rather than robbery. The DA’s office says there was misconduct by the investigator, but it is unclear if Allegro had knowledge of wrongdoing, the Chronicle says.

Bacigalupo is challenging his murder conviction in a separate appeal, the San Jose Mercury News reports.