In the federal case of the United States of America versus Javado Barner, the Eleventh Circuit Court of Appeals ruled that the trial judge erred when he denied Mr. Barner’s three-level reduction for acceptance of responsibility. The court of appeals concluded that this was one of those “unusual cases” in which the defendant went to trial, but “confessed to the factual elements of the crime of conviction.” The court pointed out that Barner had declined to plead guilty to the full indictment to pursue legal defenses as to the remaining counts–namely, that the conspiracy in which he participated was not a drug conspiracy, and that the Hobbs Act did not apply to his conduct. He was vindicated when the trial judge directed a verdict in his favor on eight counts, and the jury acquitted him on one count. Significantly, Barner did not take the stand in his defense, and he never denied having possessed the ecstasy.
In the case of Bryan Greenlee versus the State of Florida, Mr. Greenlee was convicted of four counts of possession of a firearm by a convicted felon. The court of appeals ruled that because each count was based on guns possessed during the same event, three of Greenlee’s convictions violated double-jeopardy principles and therefore had to be dismissed.
In the case of M.B. (a child) versus the State of Florida, the judge mistakenly ordered a 14-year-old to register as a sex offender after he found that the juvenile had touched his victims’ genitals over their clothing. Florida law only permits a judge to order a juvenile offender to register as a sex offender where the judge finds molestation involving unclothed genitals.
In the case of Torrey Grady versus North Carolina, Mr. Grady was convicted in North Carolina of a sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the 2006 crime, Grady was ordered to appear for a hearing to determine whether he should be subjected to satellite-based monitoring as a recidivist sex offender. Grady objected saying that the monitoring program would violate his Fourth Amendment right to be free from unreasonable searches and seizures. However, the lower-court judge disagreed and ordered Grady to enroll and be monitored for the rest of his life. Grady appealed to the North Carolina Supreme Court but lost. So he appealed to the U.S. Supreme Court which decided to send his case back to the North Carolina courts for more hearings. Specifically, the Supreme Court ruled that:
1. Because North Carolina’s program is clearly designed to obtain information, and because it does so by physically intruding on a person’s body, it constitutes a Fourth Amendment search.
2. The Fourth Amendment prohibits only unreasonable searches, and the reasonableness depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations; and
3. The North Carolina courts did not examine whether the monitoring program was reasonable when properly viewed as a search.
In the case of Keith Rancifer v. the State of Florida, Mr. Rancifer was convicted of trying to obtain a Florida identification card using a false name. However, the court of appeals overturned his conviction because:
1. It was undisputed that the birth certificate that Rancifer presented when he obtained the identification card was a certified copy of his actual birth certificate that was contained in records from New York State; and
2. The name on that birth certificate was the only legal name that Rancifer could have used when trying to obtain a Florida ID card.
In the case of Pedro Dominguez versus the State of Florida, a police officer went to a domestic disturbance call, saw Dominguez driving his vehicle away from the home, and ordered Dominguez to return to the home. After determining that no battery occurred, the officer noticed Dominguez parked “a little crooked”, that he could smell alcohol on him, and that Dominguez’ speech was slurred. The court of appeals said:
“Nothing on the officer’s observation constituted evidence that a crime was being or going to be committed, as the only observation the officer made was of Dominguez driving away from the home. The girlfriend did not report any battery. Although the judge found that the ‘signal 38′ call was frequently made for domestic violence disputes, this was unsupported by any testimony at the hearing. Nor do we think it would justify a stop, as the signal could be for both non-criminal as well as criminal incidents. Without more, an officer could have only a hunch that a crime might have occurred.”
Last month I published an article about a recent case in which an appeals court ruled that it is illegal for a private company to issue traffic tickets to people for running a red light in Hollywood Florida. Because of that case, a traffic judge in West Palm Beach may soon start dismissing similar tickets as reported by the Palm Beach Post in the following article that appeared yesterday:
“West Palm Beach’s red-light cameras judge has given the city 60 days to resolve disputes over the system — or else he’ll toss some 150 pending cases.
On Oct. 16, West Palm Beach shut down its cameras, one day after the 4th District Court of Appeal ruled on cameras in Hollywood, which has procedures similar to West Palm Beach’s.
Siding with a motorist, the West Palm Beach-based appeals court said Hollywood violated state law by relying on a private company to issue traffic citations to red-light runners. The decision reversed an April ruling by the same court. It came after the Florida Supreme Court in June ruled in two other red-light camera cases that dealt with whether cities followed state traffic laws.
At a hearing Wednesday, the city asked Ira Raab, a retired New York State judge and the city’s magistrate for red light camera violations, to continue the 85 cases for six months while the Hollywood case works its way either through additional action at the appeals court or ends up at the Florida Supreme Court.
Instead, the judge gave the city until Jan. 7. After that, he said, the cases all would be dismissed.
He said another 70 or so cases are set for his Dec. 3 docket, and those also were delayed to Jan. 7, at which time they, too, would be thrown out.”
The following article was published last month in the Washington Post. The article was written by John Yoder, director of the U.S. Justice Department’s Asset Forfeiture Office from 1983 to 1985, and Brad Cates, director of that same office from 1985 to 1989.
“Last week, the Post published a series of in-depth articles about the abuses spawned by the law enforcement practice known as civil asset forfeiture. As two people who were heavily involved in the creation of the asset forfeiture initiative at the Justice Department in the 1980s, we find it particularly painful to watch as the heavy hand of government goes amok. The program began with good intentions but now, having failed in both purpose and execution, it should be abolished.
Asset forfeiture was conceived as a way to cut into the profit motive that fueled rampant drug trafficking by cartels and other criminal enterprises, in order to fight the social evils of drug dealing and abuse. Over time, however, the tactic has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.
The idea seemed so simple: Seize the ill-gotten gains of big-time drug dealers and remove the financial incentive for their criminality. After all, if a kingpin could earn $20 million and stash it away somewhere, even a decade in prison would have its rewards. Make that money disappear, and the calculus changes.
Then, in 1986, the concept was expanded to include not only cash earned illegally but also purchases or investments made with that money, creating a whole scheme of new crimes that could be prosecuted as “money laundering.” The property eligible for seizure was further expanded to include “instrumentalities” in the trafficking of drugs, such as cars or even jewelry. Eventually, more than 200 crimes beyond drugs came to be included in the forfeiture scheme.
This all may have been fine in theory, but in the real world it went badly astray. First, many states adopted their own forfeiture laws, creating programs with less monitoring than those at the federal level. Second, state law enforcement agencies and prosecutors started using the property — and finally even to provide basic funding for their departments.
Even at the outset, the use of seized property was an issue. Drug Enforcement Administration agents, for example, might see a suspected dealer in a car they wanted for undercover work and seize it. But if the car had an outstanding loan, the DEA could not keep it without paying the lien. This led to distorted enforcement decisions, with agents choosing whom to pursue based on irrelevant factors such as whether the target owed money on his car.
As time went on and states got into the forfeiture game, the uses became more personally rewarding for law enforcement. Maintaining an undercover identity was often no longer even part of the justification for seizures.
Law enforcement agents and prosecutors began using seized cash and property to fund their operations, supplanting general tax revenue, and this led to the most extreme abuses: law enforcement efforts based upon what cash and property they could seize to fund themselves, rather than on an even-handed effort to enforce the law.
Many Americans are familiar with old-time speed traps, which became so notorious that most state legislatures reformed their systems to require local police and courts to deposit traffic fines into the state treasury to avoid the appearance of biased justice. Today, the old speed traps have all too often been replaced by forfeiture traps, where local police stop cars and seize cash and property to pay for local law enforcement efforts. This is a complete corruption of the process, and it unsurprisingly has led to widespread abuses.
The Asset Forfeiture Reform Act was enacted in 2000 to rein in abuses, but virtually nothing has changed. This is because civil forfeiture is fundamentally at odds with our judicial system and notions of fairness. It is unreformable.
In America, it is often said that it is better that nine guilty people go free than one innocent person be wrongly convicted. But our forfeiture laws turn our traditional concept of guilt upside down. Civil forfeiture laws presume someone’s personal property to be tainted, placing the burden of proving it “innocent” on the owner. What of the Fourth Amendment requirement that a warrant to seize or search requires the showing of probable cause of a specific violation?
Defendants should be charged with the crimes they commit. Charge someone with drug dealing if it can be proved, but don’t invent a second offense of “money laundering” to use as a backup or a pretext to seize cash. Valid, time-tested methods exist to allow law enforcement to seize contraband, profits and instrumentalities via legitimate criminal prosecution.
Civil asset forfeiture and money-laundering laws are gross perversions of the status of government amid a free citizenry. The individual is the font of sovereignty in our constitutional republic, and it is unacceptable that a citizen should have to “prove” anything to the government. If the government has probable cause of a violation of law, then let a warrant be issued. And if the government has proof beyond a reasonable doubt of guilt, let that guilt be proclaimed by 12 peers.”
People who are not familiar with the criminal-justice system often tend to believe that the most powerful person in the courtroom is the judge. But that is not always true. Earlier this month, The Economist printed the following article called “The Kings of the Courtroom: How Prosecutors Came to Dominate the Criminal-Justice System:”
CAMERON TODD WILLINGHAM was accused of murdering his daughters in 1991 by setting fire to the family house. The main evidence against him was a forensic report on the fire, later shown to be bunk, and the testimony of a jailhouse informant who claimed to have heard him confess. He was executed in 2004.
The snitch who sent him to his death had been told that robbery charges pending against him would be reduced to a lesser offence if he co-operated. After the trial the prosecutor denied that any such deal had been struck, but a handwritten note discovered last year by the Innocence Project, a pressure group, suggests otherwise. In taped interviews, extracts of which were published by theWashington Post, the informant said he lied in court in return for efforts by the prosecutor to secure a reduced sentence and—amazingly—financial support from a local rancher.
A study by Northwestern University Law School’s Centre on Wrongful Convictions found that 46% of documented wrongful capital convictions between 1973 and 2004 could be traced to false testimony by snitches—making them the leading cause of wrongful convictions in death-penalty cases. The Innocence Project keeps a database of Americans convicted of serious crimes but then exonerated by DNA evidence. Of the 318 it lists, 57 involved informants—and 30 of the convicted had entered a guilty plea.
“The prosecutor has more control over life, liberty and reputation than any other person in America,” said Robert Jackson, the attorney-general, in 1940. As the current attorney-general, Eric Holder, prepares to stand down, American prosecutors are more powerful than ever before.
Several legal changes have empowered them. The first is the explosion of plea bargaining, where a suspect agrees to plead guilty to a lesser charge if the more serious charges against him are dropped. Plea bargains were unobtainable in the early years of American justice. But today more than 95% of cases end in such deals and thus are never brought to trial.
The pressure to plead guilty
Jed Rakoff, a district judge in New York, thinks it unlikely that 95% of defendants are guilty. Of the 2.4m Americans behind bars, he thinks it possible that “thousands, perhaps tens of thousands” confessed despite being innocent. One reason they might do so is because harsh, mandatory-minimum sentencing rules can make such a choice rational. Rather than risk a trial and a 30-year sentence, some cop a plea and accept a much shorter one.
In such negotiations prosecutors “hold all the marbles”, says Alexandra Natapoff of Loyola Law School. Mandatory sentencing laws prevent judges from taking into account all the circumstances of a case and exercising discretion over the punishment. Instead, its severity depends largely on the charges the prosecutor chooses to file. In complex white-collar cases, they can threaten to count each e-mail as a separate case of wire fraud. In drugs cases they can choose how much of the stash the dealer’s sidekick is responsible for. That gives them huge bargaining power. In Florida 4-14g of heroin gets you a minimum of three years in prison; 28g or more gets you 25 years.
In 1996 police found a safe in Stephanie George’s house containing 500g of cocaine. She said it belonged to her ex-boyfriend, who had the key and admitted that it was his. Prosecutors could have charged Ms George with a minor offence: she was obviously too broke to be a drug kingpin. Instead they charged her for everything in the safe, as well as everything her ex-boyfriend had recently sold—and for obstruction of justice because she denied all knowledge of his dealings. She received a mandatory sentence of life without the possibility of parole. Her ex-boyfriend received a lighter penalty because he testified that he had paid her to let him use her house to store drugs. Ms George was released in April, after 17 years, only because Barack Obama commuted her sentence.
Under Mr Holder the federal mandatory-minimum regime has been softened for non-violent drug offences. But this has only curbed the power of federal prosecutors, not state ones, and only somewhat.
Another change that empowers prosecutors is the proliferation of incomprehensible new laws. This gives prosecutors more room for interpretation and encourages them to overcharge defendants in order to bully them into plea deals, says Harvey Silverglate, a defence lawyer. Since the financial crisis, says Alex Kozinski, a judge, prosecutors have been more tempted to pore over statutes looking for ways to stretch them so that this or that activity can be construed as illegal. “That’s not how criminal law is supposed to work. It should be clear what is illegal,” he says.
The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with “co-operating witnesses”, once rare, have grown common. In federal cases an estimated 25-30% of defendants offer some form of co-operation, and around half of those receive some credit for it. The proportion is double that in drug cases. Most federal cases are resolved using the actual or anticipated testimony of co-operating defendants.
Co-operator testimony often sways juries because snitches are seen as having first-hand knowledge of the pattern of criminal activity. But snitches hoping to avoid draconian jail terms may sometimes be tempted to compose rather than merely to sing.
Sing or suffer
It is not unusual for a co-operator to have 15 or 20 long meetings with agents and prosecutors. It is hard to know what goes on in these sessions because they are not recorded. Participants take notes but do not have to write down everything that is said; nor do they have to share all their notes with the defence. The time that co-operators and their handlers spend alone is a “black hole”, says a prosecutor quoted in “Snitch: Informants, Cooperators and the Corruption of Justice”, by Ethan Brown.
Co-operators have become more common in corporate cases since the Justice Department started bringing in more lawyers experienced in dealing with organised crime. Business cases typically involve mountains of hard-to-fathom documents and turn not on actions but intent. Often, the only way to convince a jury that the defendant knew a transaction was dodgy is to have a former colleague say so.
A common way to recruit co-operators is to name lots of a defendant’s colleagues as “unindicted co-conspirators”. (In the Enron fraud case there were 114.) An unindicted co-conspirator can be indicted at any moment; his lawyer will therefore usually advise him, at the very least, not to annoy the prosecutor by helping the defence.
In 2009 James Treacy, a former executive of Monster Worldwide, an employment website, was convicted of illegally manipulating (or “backdating”) stock options and handed a two-year sentence. He blames “slanted” testimony by former colleagues turned co-operators. After his release, one of them asked to meet him. Over lunch she tearfully “described the government’s intimidation tactics,” he says. “Some were almost comical: broken chairs to sit in; investigators flashing their holstered guns; and long, miserable hours of ‘good cop, bad cop’ routines, with few water or bathroom breaks. Other techniques were more serious. Prosecutors played the innuendo game, suggesting an indictment if the witness did not co-operate.”
Mr Treacy has an axe to grind, but he is not alone in arguing that the system encourages embellishment, or in believing that some prosecutors overstep the mark because they hope to parlay courtroom victories into lucrative partnerships at law firms or platforms to run for public office.
Co-operators feature extensively in insider-trading cases. James Fleishman, a former manager at Primary Global Research, was first approached by FBI agents to help them ensnare his superiors. When he refused to co-operate, insisting he knew of no illegal activity, he became a target himself. His conviction rested on co-operation from two former clients who had been put under immense pressure to be helpful to prosecutors. (They told one they would seek to have him jailed for 50 years if he declined their offer.) In a self-published book, Mr Fleishman argues that the testimony of both was littered with fabrications, including phone conversations that never took place. The co-operators got probation. Mr Fleishman was jailed for 30 months.
There is no way to confirm Mr Fleishman’s version of events. There was, however, an intriguing moment at his trial. During cross-examination Mr Fleishman’s lawyer complained that his opposing number was mouthing words to a co-operating witness who appeared to be going off-script. The prosecutor’s response was: “If I did that, and I’m not disputing what he said…I’m sorry.”
It is not clear how often prosecutors themselves break the rules. According to a report by the Project on Government Oversight, an investigative outfit, compiled from data obtained from freedom of information requests, an internal-affairs office at the Department of Justice identified more than 650 instances of prosecutors violating the profession’s rules and ethical standards between 2002 and 2013. More than 400 of these were “at the more severe end of the scale”. The Justice Department argues that this level of misconduct is modest given the thousands of cases it handles.
Judge Kozinski worries, however, that there is “an epidemic” of Brady violations—when exculpatory evidence is hidden from defence lawyers by prosecutors. For example, in 2008 Ted Stevens, a senator from Alaska, was found guilty of corruption eight days before an election, which he narrowly lost. Afterwards, prosecutors were found to have withheld evidence that might have helped the defence. Mr Stevens’s conviction was vacated, but he died in a plane crash in 2010.
Prosecutors enjoy strong protections against criminal sanction and private litigation. Even in egregious cases, punishments are often little more than a slap on the wrist. Mr Stevens’s prosecutors, for example, were suspended from their jobs for 15 to 40 days, a penalty that was overturned on procedural grounds. Ken Anderson, a prosecutor who hid the existence of a bloody bandana that linked someone other than the defendant to a 1986 murder, was convicted of withholding evidence in 2013 but spent only five days behind bars—one for every five years served by the convicted defendant, Michael Morton.
Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems. Judge Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining—for instance by bringing in a magistrate judge to act as a broker. He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.
Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials. This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.
Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”
In the case of the City of Hollywood versus Eric Arem, an appeals court ruled that it is illegal for a private company to issue traffic tickets to people for running a red light. The court said that in Florida only law enforcement officers and traffic enforcement officers have the legal authority to issue citations for traffic infractions. That, in turn, means that only law enforcement officers and traffic enforcement officers are entitled to determine who gets prosecuted for a red light violation. Private companies are not allowed to make that determination.
Up until now, the court said, “it is the [private company] that decides which cases the [traffic enforcement officer] gets to review; it is the [private company] who initially determines who is subject to prosecution for a red light violation; it is the [private company] that obtains the information necessary for the completion of the citation; it is the [private company] that creates the actual citation; it is the [private company] that issues the citation to the registered owner of the vehicle; and, it is the [private company] that eventually transmits the traffic citation data to the court.” Because that procedure is illegal, the court said, the appropriate action for a judge to take is to dismiss those traffic tickets.