"some of the most lethal terrorists are prosecutors"

Norm Pattis talks about prosecutors employing dark arts at trial:

Trial, some say, is a search for the truth. That’s specious tomfoolery. In fact, trial, at least a criminal trial, is guerilla warfare. Some of the most lethal terrorists are prosecutors. Fear and the dark arts of intimidation are common tools.

Fear and intimidation, indeed. Only a small number of criminal cases ever go to trial because of those dark arts. Who would risk being tried on the most severe of charges and a much longer sentence when the plea agreement offers lesser charges and a shorter sentence? After seeing the prosecution's enormous power to force the outcome it wants, not many will risk a trial.

The dark arts of witness intimidation pit prosecutors against defense counsel. The accused wants to avoid prison and a felony record. The government wants testimony sufficient to convict as many as possible. 

A grant of immunity from prosecution is a homerun for the defense, but the government doesn’t like giving free passes to those it believes to have broken the law. For one thing, jurors are wary of immunity agreements, especially in white-collar cases. “How come he gets to break the law with impunity?” are not the words a prosecutor wants to hear about a witness. 

So an elaborate charade is constructed, a game designed and intended to keep jurors from learning as much of the truth as possible. The government enters into cooperation agreements with those prepared to testify against co-conspirators. 

Here’s how it works: A witness pleads guilty, typically to reduced charges. But his sentence is deferred until after the main event. ... 

Deferring sentence permits the government to deny that the witness has been promised leniency for his cooperation. The witness is reduced merely to saying that he hopes the judge will take into account his assistance to the government when his own sentencing occurs.

Read the whole thing. Pattis outlines an actual trial to show how it works.

In other words, the government, not the jury, decides what is and is not true; those who disagree with Uncle Sam get clobbered.

When the prosecution routinely forces a plea agreement and bypasses any trial, the prosecution rarely has to prove its case.

So, yes: the prosecution decides what is true.

parking lots, bridges, and lean-to's: no home-sweet-home in Florida

Florida has extremely tough residency restrictions for sex offenders. Do they make the community safer? You tell me.

As a convicted sex offender, [he] was ordered to live in a small parking lot on Channelside Drive. 

[He] had been prosecuted for impregnating his 14-year-old girlfriend when he was 23, was sentenced to community control and probation. 

For refusing to stay for more than a few weeks in the empty lot, [he], 27, was sentenced to 10 years in state prison. 

On Friday, the 2nd District Court of Appeal reluctantly upheld [his] punishment. 

“We are troubled by the fact that the terms of [his] community control have rendered him homeless,” the court wrote. “This does not appear to facilitate the goals of sex offender community control which are 'treatment of the offender and the protection of society.' ”

He had a van to sleep in but sleeping in a parking lot comes with its own dangers. How many of you would be willing to sleep in a parking lot for months or years? How secure would you feel?

His sentence for leaving the parking lot for the home of a family member--a safer location--was ten years; his original sentence for statutory rape didn't even include prison time. Insane that probation violations can draw a more severe sentence than the original crime did.

Richard Sanders, this man's public defender said this case is...

“not as unusual as you might think.” 

“These people that get these sex offender charges have very severe restrictions on where they can live, particularly if they're poor, as a large number of them are,” he said. “You only have a limited number of places where you can live. And if you can't afford to live there, what are you going to do?” 

Sanders previously represented another Hillsborough County sex offender, [ ] a house painter with an amputated arm and trouble finding a home and a job. [He] was forced to live in a lean-to next to a trash bin behind the probation office. 

The building owner didn't want [him]to live there, and he was told to find somewhere else to live.

Leaving sex offenders only parking lots, bridges, and lean-to's as living space certainly does nothing for community safety.

If the residence restrictions are not about safety, then it is clear that they are about marginalization and punishment. Sex offenders are easy targets because defending them is not generally well-received, even when facts show that registered sex offenders rarely commit another sex offense, that residency restrictions would not prevent anyone from committing another crime if he were so inclined and even when the facts show that stability--a home, a job, friends and family--is the best predictor of success for former offenders.

Marginalization is not about safety; it is about being allowed to be cruel to those on the registry.

Sanders, the public defender, said,

“Who wants to be the one to introduce a bill in the Legislature that relaxes some of these requirements? Soft on child molesters — who wants that? I think we're kind of stuck with this situation that's going to keep going and getting worse and worse and worse.”

Craven cowardice in the Legislature or deliberate evil?

You tell me.

...but he seemed so helpful!

Waco, TX, has found a way to reduce the cost of indigent defense. They worried that applicants were falsifying information when requesting a public defender, so now they investigate to make sure the requester is genuinely indigent.

They send a cop to the homes of defendants seeking to apply for the public defender and have him interview and investigate them.

In fact, there’s such a problem with falsifying information on applications, that a whopping 2 people have been arrested since November.

When put in perspective, you begin to see why Edwards has seen a drop in applications. It might have to do with the fact that people don’t want a police officer coming into their homes and asking them questions.

The a public defender blog quotes the Waco Tribune so we can see what else came of investigating financial circumstances of the applicants:

Carrizales said he has made more than 20 arrests simply from following up with applicants at their homes and finding fugitives with outstanding warrants.

Colyer said the sheriff’s office expected the additional arrests because the investigation of one crime often leads to the discovery of other offenses.

Sure, the investigation of one crime can lead to the discovery of other offenses but this sheriff's detective isn't investigating a crime, he is investigating finances...or so he says when he knocks at the applicant's door.

Poor people who need a public defender may not be able to afford to let this investigator in their homes.

why I admire defense attorneys

Radley Balko interviewed longtime Louisiana defense attorney Sam Dalton for an August 2013 article on prosecutorial misconduct. As his final Huffington Post piece (before moving to the Washington Post), Balko published the whole Dalton interview.

Dalton is something of a legend in Louisiana courtrooms. He has just entered his seventh decade of practicing law. In that time, he has defended more than 300 death penalty cases. Of those, he spared 16 defendants from execution -- this in a state that's rather fond of executing people. He has also been a voice for civil rights, he chartered a model public defender system, and he's currently leading a charge to impose some accountability on Louisiana's more egregiously misbehaving prosecutors. My favorite thing about him: Outside his office door there's a "welcome" mat that reads: Come back with a warrant.

Talking about why prosecutors still try to avoid handing exculpatory evidence over to the defense, even though it has been the law for 50 years, Dalton said:

[Y]ou have to look at what the system rewards. The best way to get attention for yourself as a prosecutor is to put a lot of people in jail. There's no votes to be won for deciding not to prosecute someone in the interests of justice. No prosecutor runs for higher office by touting the charges he didn't bring, or the fairness he showed to those accused of terrible crimes. You put those two problems together, and you get a culture that encourages deliberate indifference, especially once they're publicly invested in a particular suspect. 

Anyone who has watched someone go through the meat grinder of our justice system knows this already. It is a sad time when prosecutors fear being accused of being fair. We also know the Department of Justice is publicly invested in a particular type of suspect--drug offenders for one, sex offenders for another. These offenses are easy to detect, easy to prosecute, easy to convict. I would note, too, it is easy for law enforcement to entrap someone for these offenses.

Now that Colorado and Washington have legalized marijuana for recreational use, it seems clear that public opinion will support further legalization. Perhaps that is why federal law enforcement has increased its investment in catching those who download child pornography--easy pickings will make it possible for a prosecutor to continue to boast the number of convictions on his watch.

I think it's a mistake for a defense attorney to define success by how many acquittals he wins. I define it by whether I've forced the state to do its job, and to do it fairly and in compliance with the Constitution. 

But let me say something about convictions. Convictions are important. And it's important for attorneys to represent even clearly guilty people. There's the obvious reason -- that everyone deserves a fair trial. 

But here's a less obvious reason: Ask yourself, what contribution do convictions make to criminal case law? The answer is that they're responsible for almost all of it. When you're acquitted, you don't appeal. Only convictions are appealed. And it's on appeal that you argue that your client's rights were violated. Appeals are where the appellate courts enforce the Constitution. At least where they're supposed to. It's only because someone was convicted that we have the rules in place today that protect the accused. There's a kind of beautiful symmetry to that. It's because of convictions that we have the rules that protect the innocent.

I had not thought before about the role convictions play in the important battle to change laws. Dalton makes me see them differently, though I have to wonder if Dalton overlooks the fact that when prosecutors have been given the power to pin a defendant between a plea agreement and a mandatory minimum sentence, convictions lose that importance. 

Plea agreements often require the defendant to waive his right to appeal. No appeal means no way to argue that rights were violated, even when it is clear that a plea is less about admitting guilt than about avoiding the mandatory minimum.

Dalton talks about punishment:

We focus too much on retribution, and too little on protecting society from harm. 

Let me give you an example. Two men commit an armed robbery on the same night. The first man is a father of four. His family is about to be evicted. Or if you want to make him less sympathetic, let's say he's a drug addict who needs money to buy his next fix. He's nervous, he's sweaty. He's desperate, and he's panicky. He approaches his victim and roughly accosts him. He puts his gun to the victim's head. He's screaming profanities. He screams out for his victim's wallet, then screams louder and threatens the victim for moving too slowly. He takes his money and runs off. His victim is terribly frightened. 

In the second scenario, our mugger is calm, cool, and methodical. He approaches his victim from the front, puts a light hand on the victim's back, and slowly and unemotionally explains that he has a gun in his coat pocket. He tells his victim that if he hands over his wallet, no one will get hurt, and they can both be on their way. The victim hands it over. The mugger walks off. The victim is angry at just having been robbed, but he isn't terrified. And he was never in real fear for his life. 

Which of the two armed robbers is likely to get the longer sentence? Almost certainly the first one. Which of the two is the bigger threat to society? Unquestionably the second one. In fact, the second one is not only a likely career criminal, he's more likely to actually kill someone. The first one is scared because he knows he's doing something wrong. He feels some empathy for his victim. He's committing a crime of necessity. That isn't to say it excuses him. But his aggression comes from fear. The second mugger is incapable of empathy, or has learned to turn it off. He's cold-blooded. 

So you see we impose punishment based on fear and a desire for retribution, not based on rational evaluations of what crimes and criminals are most dangerous. [My emphasis.]

Sex offenders and their families know this well. The majority of those convicted of sex offenses are unlikely to commit another sex offense and yet they are sentenced according to the fear engendered by the term sex offense instead of any rational evaluation of danger.

Punishment should include alternatives to incarceration because incarceration is often a training ground for criminals and because the United States prisons are overcrowded. Another reason to avoid incarceration when possible is to avoid giving more people power over others.

Though Dalton is talking about judges and prosecutors, his warning also applies to correctional officers:

Power is insidious. It will creep up on even the most decent people. Always be aware of that, and be vigilant against it.

Read the whole interview. Defense attorneys take a lot of heat for their part in letting criminals go free but they stand between us and unjust convictions. I have great admiration for attorneys who defend the obviously guilty and especially those obviously guilty of terrible crimes.

Obvious guilt should be defended just as fiercely as innocence is.

another judge gets it

A federal judge in Ohio shows mercy by refusing to sentence a defendant according to the sentencing guidelines. Twice.

Appalled at the harsh sentencing guidelines for child pornography offenses, a federal judge sentenced an ailing, 67-year-old defendant to only one night in jail — and when an appeals court ordered the defendant resentenced, the judge imposed the same punishment. 

“If I have got to send somebody like [this man] to prison, I’m sorry, someone else will have to do it,” said U.S. District Judge James L. Graham of Columbus, Ohio. “I’m not going to do it.” ...

The unusual act of judicial disobedience by Graham — who was appointed to the bench 27 years ago by President Ronald Reagan — is the latest protest of sentencing rules for pornography possession, which other federal judges have described in opinions as “irrational” and “bordering on witch hunts.” 

...Graham declared the guidelines were seriously flawed because, among other things, they require an enhanced sentence if a computer is used — even though, as Graham pointed out, a computer is nearly always used.

As far as I can tell, the defendant is pleading guilty to possession, a charge that does not carry a mandatory minimum. Sentencing guidelines are advisory, not mandatory.

The defendant has already had two strokes and his wife is in poor health. The judge said he worried that the defendant wouldn't get sufficient health care in prison. In another article, the prosecutors blithely brush aside those concerns:

The 6th Circuit pointed out that prisons have doctors and that [the defendant] has four adult children living near him who could help take care of his wife.

The prison where my husband is incarcerated has no doctor on staff. I do not know if that is usual.

“We’re not of a belief that someone should get a senior discount because of their age,” said Fred Alverson, a spokesman with the U.S. Attorney’s Office.

Well, that's certainly true. Federal prosecutors have been busy putting elderly people in prison and keeping others there until they are elderly--the majority of them for non-violent crimes.

The population of aging and elderly prisoners in U.S. prisons exploded over the past three decades, with nearly 125,000 inmates aged 55 or older now behind bars, according to a report published Wednesday by the American Civil Liberties Union. This represents an increase of over 1,300 percent since the early 1980s. 

More than $16 billion is spent annually by states and the federal government to incarcerate elderly prisoners, despite ample evidence that most prisoners over age 50 pose little or no threat to public safety, the report said. Due largely to higher health care costs, prisoners aged 50 and older cost around $68,000 a year to incarcerate, compared to $34,000 per year for the average prisoner. 

The feds want to put this man in prison, putting his health and that of his wife at risk, and they want taxpayers to pay the increased cost of incarcerating an elderly man in poor health. Why?

In the article linked above, the prosecutors explain that

...he was participating in a global market with millions of members that “constantly demands that more children be abused in order to create new images.” 

“Child pornography images themselves are their own currency,” prosecutors wrote. “Possessors are the engine of demand that fuels the molestation of children to create more supply.”

Note that prosecutors do not have to prove these assertions. They don't have to prove that this man's online activities demanded new images or that he wanted more children to be molested. They are allowed to make broad accusations about a general practice of looking at child pornography as if it naturally applies to everyone charged with possession. No one challenges them.

Welcome, Judge Graham, to the ranks of those who recognize that sentences for child porn users are not proportionate to the crime. There is probably a large number of judges in that group. If only more of them would stand up and publicly acknowledge the wrongs done to those who look at pictures.

Bordering on witch hunts, indeed.

truth and lies...and wild-eyed guesses

I'm not sure what it says about me when someone working for the rights of sex offenders makes me mad. I'm glad Janice Bellucci is working on behalf of the registrants in our lives. Any improvement in their circumstances is welcome. But did she really say that sex offenders should go to prison, when it is abundantly clear that so many of them do NOT belong in prison?  First-time offenders? First-time non-violent offenders? Non-contact offenders?

Of course the anger I have for that attitude is nothing compared to the anger I have toward Gale Holland, the reporter who soaks nearly every paragraph in an oozing, sticky, putrid disgust for registrants.

When Bellucci compares social marginalizaion of sex offenders to the marginalization of European Jews before and during WWII, the reporter condescends:

No doubt this preposterous characterization is objectionable. Sex offenders are shunned for their conduct, not their status. And their conduct is often unspeakable.

"Often unspeakable." Why unspeakable? I'm afraid this reporter found it unspeakable because she herself has no idea what the conduct was that landed these people in prison and on the registry. Nor did she bother to do the research to find out. She blithely labels the idea that registrants are marginalized as preposterous, even though her article clearly describes that marginalization:

But even a state advisory board acknowledges that post-release restrictions on sex offenders have gone too far. In an August 2011 report, the California Sex Offender Management Board said that one-third of the state's registered sex offenders are homeless, partly because of the housing limits.

When Bellucci points out that registrants are "like everybody else," the reporter knows better.

Really? I don't think so. Some undoubtedly made mistakes, but others are hardened offenders whom law enforcement would do well to track and monitor. 

Again, how many on the registry made mistakes and how many are hardened offenders? Evidently those numbers mean nothing because this reporter doesn't bother trying to answer those questions.

Holland's example of the hardened offender law enforcement would do well to track and monitor?

Just this week, Jerome Anthony Rogers, 58, a registered sex offender, was arrested on suspicion of the home-invasion killing of an elderly San Bernardino woman. Rogers' previous conviction was for sodomizing a child under age 14.

This was a man who was on the registry! Tracked. Monitored. And yet he may have committed an even more terrible crime than his original sex offense. Murder--not a sex crime. Why did the registry not prevent this?

Holland wraps up her skeptical take on Bellucci's cause:

But we've all heard of the priests, Boy Scout leaders and teachers who molested multiple children before finally getting caught. 

Yep. We've all heard about the priests, Boy Scout leaders and teachers. We've heard about them so frequently that some people don't even question whether these categories of people are more or less likely to be sex offenders than other categories. Holland is so certain her perception is correct that she doesn't hesitate to smear all three categories in a single sentence.

The state corrections department acknowledges it can say with only 75% accuracy who is likely to commit a sex offense again, although it hopes to increase the odds with better assessments.

Seventy-five percent accuracy? I flat-out don't  believe that. Neither should you.

Chris Christie sounds good...but how is he on crime?

I caught the last half of Chris Christie speaking at the GOP National Convention last night. I am impressed with his willingness to be tough on government spending and to make real efforts to cut spending in New Jersey. 

He used to be a federal prosecutor; how does that affect him and his ideas about crime? Some call him smart on crime.

This legislation gives victims access to more information from prosecutors, assists victims of violent crime with medical expenses out of funds paid by offenders, and entitles victims to appear in court for all proceedings. Perhaps most importantly, the new law requires a judge to consider a victim’s statement before accepting a plea bargain. Moreover, the law gives victims a tool to enforce these protections, as it gives them legal standing to file motions to ensure that their interests are recognized.

I don't know enough about the New Jersey law here to have a solid opinion on this but I would rather see reforms that make plea agreements much less common and trials more common. Yes, I imagine a world where the defendant can exercise his Constitutional right to a trial, a world where the prosecution actually has to prove their case. Instead, these reforms sound like another heavy hammer for the prosecution.

Christie also is pushing the use of drug courts to keep drug law offenders out of prison. That sounds compassionate but there are plenty of questions about the effectiveness and fairness of those drug courts.

We must make our voices heard. The current focus on the need to cut government spending is a great opportunity to suggest reform of the current justice system. A reduction in the number of prisons and prisoners would save taxpayer money and it would keep productive members of society in society where they can remain productive. Fewer broken families, too. Fewer people labeled for life as felons or sex offenders...or both. Fewer asset forfeiture cases...the list goes on and on.

sex offender? that's a pretty broad brush, don't you think?

Both society and the justice system treat child porn users the same as child molesters. I don't know how it came to be that way, but I suspect that the Sex Offender Registry has encouraged people to think this way. "Sex offender" includes so many offenses--some harmless, some violent; some ugly and some that used to be seen as silly young love. The term "sex offender" is used on all of them.


A young man who has a nudie picture of his younger girlfriend, a violent rapist, a child porn user, a serial molester: they all are sex offenders. Someone using the Sex Offender Registry could look at the details of each offender, or they could simply stare at the house across the street with horror when they find it on the registry.


When a child porn user is released after trial (haha! just kidding...child porn charges almost never go to trial), they are released with conditions of supervision. The conditions of supervision for a child porn user are indistinguishable from the conditions for a molester. The court treats them the same, even though one is a contact crime and one is not. 


Someone who looks at pictures should not be treated as if he did anything more. If you, or someone you know, is facing child porn charges, talk to your attorney about challenging the conditions. Attorneys, too, are accustomed to treating porn users as if they are molesters because the system works that way; you may need to insist that they think differently. Will your protests do any good? Maybe, maybe not. But the more the question comes up, the more we can make people in the justice system think about it in an honest way.

finding a defense attorney

When you need to find a defense attorney, you are already in trouble, already in a panic. It just isn't a good time to make such a momentous decision but there is no way around it. Fortunately for us, my husband was not arrested the day the ICE agents invaded our home to serve a search warrant so we could both work on finding the attorney.

An Internet search would have made it much easier because we may have been able to find something out there that gave us an idea about whether the attorney was any good. As it was, we had a phone book and no Internet. I remembered seeing a defense attorney on TV and I knew I would recognize his name if I saw it. I wandered through the yellow pages until I could remember his name. That is who we called.

He made time to see us briefly over lunch the same day. He introduced himself and asked my husband if he was thinking of suicide. I was relieved to hear him ask that first--it indicated that the attorney thought first about the person sitting across from him instead of the crime.

Since then, our attorney has answered all my questions. When I talk about possible defenses, he listens. He also does me the courtesy of giving it to me straight. He never condescends by pretending that I've come up with the magic formula that will result in our lives going back to what they were.

I hope we never have to find out in court exactly how good our decision was, though.