"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.

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.

power over others

The knowledge that someone has  power over you and your family is terrifying and when you find yourself in that position unfairly, the terror level is especially high. Guilt and innocence have little to do with the unfairness of it. Prosecutors have all the power to decide if they want a person in prison or not, and nothing can stop them. So, from the very beginning, we are powerless, defenseless. Sending a family member to prison means they are again powerless, defenseless--and without even the comfort of loving touch or familiar faces.

America builds more and more prisons (15 federal facilities opened in the last twelve years) and incarcerates more and more citizens, requiring more and more prison guards. Most people recoil at the idea of working as a prison guard and yet there is always someone who will do the job, no matter how many guards are needed. As of 2000, there were 270,317 custody/security staff in federal, state, and private adult facilities.

What happens to a person who is given physical power over others? If power corrupts, it cannot be good that we are putting an increasing number of people in positions of physical power over others.

can you go to prison for enticing an undercover FBI agent?

An Alabama judge threw out an Internet sting case because there was no actual child victim. A 50-year-old man made an Internet connection with someone he thought was a 15-year-old girl. Instead, he was conversing with an FBI agent. The judge's order:

Specifically, there was no actual "victim"; a thirty-seven (37) year old male undercover FBI agent was the actual person who interacted with the Defendant during the course of the investigation and at all times was the individual with whom the Defendant interacted making the basis of the allegations here.

This makes sense to me. How can we convict someone of enticing a minor if there is no minor involved? The defendant imagines that he is interacting with a child but there is no child. 

An interesting twist to the story: the defendant is also a prosecutor. There are many men already doing years of prison time who were nabbed in stings like this; presumably, none of them are also prosecutors. Is it possible that this particular prosecutor/defendant received special consideration from the judge?

Surely this cannot be the first time the defense has argued that there was no actual child involved. It will be interesting to see if the argument works in other cases.

prosecutors gain enormous power from mandatory minimum sentencing

Mandatory minimum sentencing gives prosecutors nearly absolute power to convict. Reason's Jacob Sullum writes about a drug offender caught between the mandatory minimum and a plea agreement but sex offenders are treated the same.

Stretching Williams' sentence from mindlessly harsh to mind-bogglingly draconian, each of those marijuana counts was tied to a charge of possessing a firearm during a drug trafficking offense, based on guns at the Helena grow operation that Williams supervised and at Flor's home in Miles City, which doubled as a dispensary. Federal law prescribes a five-year mandatory minimum for the first such offense and 25 years for each subsequent offense, with the sentences to run consecutively. 

Consequently, when Williams was convicted on all eight counts, he faced a mandatory minimum sentence of 80 years for the gun charges alone, even though he never handled the firearms cited in his indictment, let alone hurt anyone with them. This result, which federal prosecutors easily could have avoided by bringing different charges, was so absurdly disproportionate that U.S. Attorney Michael Cotter offered Williams a deal 

Drop your appeal, Cotter said, and we'll drop enough charges so that you might serve "as little as 10 years." No dice, said Williams, still determined to challenge the Obama administration's assault on medical marijuana providers. But when Cotter came back with a better offer, involving a five-year mandatory minimum, Williams took it...

Chris Williams' biggest mistake was in choosing to go to trial. Three of his partners in his marijuana operation were also convicted though they chose not to go to trial.

Tom Daubert, one of Williams' partners in Montana Cannabis, which had dispensaries in four cities, pleaded guilty to maintaining drug-involved premises and got five years of probation. Another partner, Chris Lindsey, took a similar deal and is expected to receive similar treatment. Both testified against Williams at his trial last September. 

Sentencing guidelines allow for a more favorable sentence if a defendant provides "substantial assistance" to the prosecutor. Daubert and Lindsey did that by testifying against Williams. 

The fourth defendant?

Williams' third partner, Richard Flor, pleaded guilty to the same charge but did not testify against anyone. Flor, a sickly 68-year-old suffering from multiple ailments, died four months into a five-year prison term.

These men were also caught between state laws, under which their business was legitimate, and federal law where it was not.

Keep in mind that this happens routinely. Prosecutors can use the mandatory minimums as leverage, putting nearly anyone in prison. Few cases go to trial; defendants take the plea in the vast majority of cases. Because most cases don't go to trial, prosecutors rarely have to prove their case.

all child porn images are not the same

An old article illustrates a problem with the definition of child pornography.

At Susquenita High School, 15 miles outside of Harrisburg, Pa., eight students, ranging in age from 13 to 17, have learned a tough lesson about "sexting." 

"Take a photograph of yourself or somebody else nude and send it to somebody else, you've committed the crime," said Perry County District Attorney Charles Chenot, who has prosecuted two sexting cases involving a total of 10 minors in the past year. 

Chenot said he considers sexting a form of child pornography and wants kids to understand once those images are in someone else's hands they could wind up anywhere, even the Internet, possibly forever. 

The teens at Susquenita High, who all knew each other, were accused last fall of using their cell phones to take, send, or receive nude photos of each other and in one case a short video of a oral sex. That resulted in a felony pornography charge for each minor.

Child pornography horrifies people because it is seen as victimizing children. The videos of adults abusing children are definitely horrifying but much of child porn is not that. Sexting videos of kids that are loosed on the internet are also considered child pornography. These are images created by kids, probably for kids, and uploaded by kids who are not thinking that the images could go much further than they intend. These eight kids were not victimized by the images; they were victimized by the justice system and by a prosecutor who wanted to teach them a lesson.

In this case, the school discovered the images by examining a phone and turning it over to law enforcement. The District Attorney "wants kids to understand" that the images could wind up living forever on the Internet. He's right, of course, but he charged those eight kids with felonies. That's a heck of a lesson. Sure, juvenile offenses can be expunged from their records but those eight will forever know that the rest of the town knows something incredibly personal about them, something they never intended the community at large to know. School officials and law enforcement teamed up to make sure that people heard about it...all for the good of the children, naturally.

Teens, for better or worse, make their own decisions about sex and sexual behavior and cell phones make it possible to record all of their follies. Should teens be charged with child porn felonies for being stupid and for not realizing that the videos and photos will live forever on the Internet?

"Why should we criminalize a kid for taking and possessing a photo of herself," said Marsha Levick, legal director of the non-profit Juvenile Law Center. "There is no problem that needs to be solved."

The felonies and public humiliation almost certainly do more lasting damage to the kids than the photos themselves ever could do.

Images like this cannot be seen in the same light as images of children sexually abused. They simply are not the same.

If we can agree that sexting images are different from images of child sexual abuse, what is it that makes them different? Both are images of children, both are sexual images. The sexting image is not a recording of a crime. That's the difference. One is an image of foolish kids doing something for fun and one is an image of horrifying cruelty. One is worse than the other. The law, however, treats them the same.

Either image will land a man in prison.

Child pornography includes images made in fun, like these, and those made in cruel circumstances. They include images that a child may have been forced to make and images a child may have chosen to make in order to make money.

It is wrong to treat them as if they all come from equally horrifying circumstances.

always more to the story

A man is charged with distribution and possession of child porn. All I know is what is in the article but a couple of things jumped out at me.

School administrators expressed shock earlier this month when discussing the case during a news conference, saying Merrill had never displayed troubling behavior during his time at the school.

I hope school administrators can remember this about their colleague: he had never displayed troubling behavior. 

While being questioned by investigators, Merrill said he was sexually assaulted as a minor and "wanted to know if child pornography was as repulsive as he had read about," according to the affidavit.

I have been told that child porn is the "crack cocaine of the porn world." If this man's story is true, I'd say the adage could be, as well. We all know someone who is "addicted" to Facebook or to video games. It follows that an addiction to child porn is a possible result of simple curiosity. Especially for someone who was sexually assaulted, perhaps.

O'Neil said — with the federal charge filed — he expects Isabella County prosecutors to drop the local child porn distribution charges against Merrill. 

"I still have not seen any evidence of distribution or sharing," O'Neil said. "Right now, all the evidence is reviewing this child pornography in the four corners of his home and office, which is serious enough."

So, no evidence that he distributed child porn and yet he is charged with distribution. Favorite trick of prosecutors: Charge him with everything possible, even if they have no evidence for some of the charge. This pins the defendant between the very long mandatory minimum sentence likely after a trial and the merely long sentence offered in the plea agreement.

20 years or a life sentence for possession of child porn

In November 2011, a Florida judge sentenced a man to life in prison for possession of 454 child pornography images.

But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.

I need to do more research on this but I wonder if contact offenses get shorter sentences because they are less frequently prosecuted at the federal level. Tracking down people who download child porn is easy to do for the feds; tracking down individuals who sexually abuse children is probably more often investigated at the local level. 

Mr. Hollander said Mr. Vilca had consistently said he did not know the images were on his computer. He refused a plea bargain of 20 years in prison, after which the state attorney increased the charges. The sentence will be appealed, Mr. Hollander said.

Notice this: The prosecutor was willing to let this guy off "easy" with a 20-year sentence but when the defendant chose to go to trial, the prosecutor increased the charges. Why? Because he could? If 20 years was going to be enough to keep the world safe from this young man, why the extra charges that would increase his sentence? If the prosecutor really believes that the life sentence is appropriate in this case, why did he offer a 20-year plea agreement to begin with? 

I don't know how prosecutors and judges like this can sleep at night.

Troy K. Stabenow, an assistant federal public defender in Missouri’s Western District, noted that most people assume that someone who looks at child pornography is also a child molester or will become a child molester, a view often mirrored by judges. 

But a growing body of scientific research shows that this is not the case, he said. Many passive viewers of child pornography never molest children, and not all child molesters have a penchant for pornography. 

“I’m not suggesting that someone who looks at child pornography should just walk,” he said. “But we ought to punish people for what they do, not for our fear.” [My emphasis.]

power of the prosecutor...not kosher

Watch Unjustified: The Unchecked Power of America's Justice System for an interesting story about the excessive power of the federal prosecutor. If you think that abuse of power probably affects only the druggies and the perverts, think again.

20 years in prison...what does that get this innocent woman?

This is how messed up the justice system is: Two people spend years in prison for a crime they absolutely didn't commit and the state doesn't want to compensate them for their lost years because they perjured themselves. The perjury? Confessing to the crime they didn't commit.

It isn't a minor consideration. One person served 20 years, the other served 5 1/2 years.

“The path to Mr. Dean's and Ms. Taylor's hell was led by a narrowly focused, almost obsessed, rush to judgment to solve a murder,” Bryan wrote in his orders.

Both are members of the “Beatrice Six,” who were exonerated in 2008 by DNA testing of nearly 25-year-old evidence. The tests proved the six could not have participated in the murder of Helen Wilson, 68, who was killed by a lone assailant never charged in the murder before his own death in 1992.

I know the state has a duty not to spend taxpayer money unless it has to but who in could argue in good conscience against compensation for these people? Nebraska Attorney General Jon Bruning can.

 “Mr. Dean and Ms. Taylor provided false testimony that led to the conviction of an innocent man,” Bruning said in a statement. “We continue to believe the Nebraska Legislature did not intend to provide recovery to those who commit perjury under the Wrongful Conviction and Imprisonment Act.”

The judge agreed that their testimony was inaccurate. But he found overwhelming evidence to support the contention that Dean and Taylor grew to believe what they were saying during months of pretrial confinement and repeated law enforcement interrogations.

 I have to wonder how the investigators got two people to confess to the crime. Seems to me that it would be hard to convince someone they did murder when they didn't and yet, here it is. So what happened during the interrogations to force the confessions?

This is our justice system.

prosecutorial misconduct: incidental or systemic?

Some thoughts about prosecutorial misconduct from William Anderson, while he was guest-blogging on The Agitator.

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.

Interesting. Is the system structured so that prosecutors are free of any meaningful opposition? The use of mandatory minimum sentences make it easy for prosecutors to send defendants to prison without ever having to prove a case against them. A jury trial is a powerful balance against the power of the prosecutor and we would be wise to eliminate the mandatory minimums that have made trials nearly extinct.