Radley Balko has this amazing comparison of two different citys' police recruitment videos, which paired together give great insight into really different ways these departments see themselves and their mission. As Balko asks, which town do you want to live in?
Archive for the ‘Police and Prosecutorial Abuse’ Category.
Via Radley Balko, certain Dallas residents are upset that they are getting "nitpicked" for speeding and other traffic violations caught by camera. Normally, I would be quite sympathetic. But not in this case. You see, those who are upset about getting punished for violating traffic laws are Dallas police:
The Dallas Police Department has suspended a special unit’s regular reviews of dash-cam video from patrol cars because officers felt they were being nitpicked with disciplinary action for minor infractions such as speeding.
The recordings and the reviews are meant to provide evidence when patrol officers go renegade, and they are especially helpful in excessive-force cases. They’re also crucial for protecting officers falsely accused of wrongdoing.
In 11 months of operation, the unit reviewing the video found numerous examples of officers exceeding the department’s speed requirements, failing to turn on their lights and sirens or failing to stop at stop signs or red lights during chases or when responding to other emergency calls.
While in many cases these actions are against department policy, police commanders say they became concerned that some supervisors were taking a heavy-handed approach to routine problems, meting out discipline rather than finding ways to change behavior.
“The folklore among officers is, ‘I’m afraid to go five miles over the speed limit because I’ll be disciplined,’” said Chief David Brown. He ordered a cooling-off period for the review process while the department takes a look at what can be done to ensure that it is fair and reasonable.
As someone who has gotten a ticket from a police officer for going less than five miles over the speed limit, I can think of a two word response: Equal protection.
While some supervisors informed of violations have simply counseled officers to be more cautious, Dallas Police Association officials say at least a couple of dozen officers were disciplined, mostly with minor write-ups, for speeding violations.
Well, since police officers like all public officials are impossible to fire, this does not mean squat. I don't see any fine here, or points on their license, penalties absolutely everyone else would face. A better spin for this article would be "police violations of traffic law treated far more leniently than those by anyone else." And even with this lenient treatment, they still shut it down as too onerous.
All that being said, the video review program Dallas was doing is a good idea. It should continue, and if traffic law enforcement is getting in the way of the program continuing, I would be willing to let the officers slide if only to catch more substantial violations in how they interact with the public.
I have not really posted on Trayvon Martin (except to comment on NBC's corrupt editing of the 911 tape) because a) high-profile criminal cases don't really have the hold on me they seem to have for many other Americans**; b) I have nothing to add; c) I have a bias that would make my commentary suspect.
But since I am about to post on the case, and may in the future, I should explain the bias. We have a problem from time to time with campground workers we call the "badge-heavy" syndrome. They get obsessive about rooting our rules violations. They stalk campers. They follow people around. The spy on campers, looking for violations or crimes to report. The folks they pick out for such treatment are often chosen because they are somehow different from the employee.
This is just awful for customer service. It drives me crazy. It is the absolute first thing we discuss at every training session. Employees who demonstrate that they have this mentality are generally shown the door as fast as possible. Government-run recreation facilities actually have this problem much worse, because 1) they give all their park staff a law enforcement title, a badge, and a gun, which tends to just encourage this kind of over-zealous harassment and 2) it is almost impossible for them to fire someone for this type of thing (because in the government employee heirarchy of values, enforcement of and consistency with rules is far more important than customer service or visitor satisfaction).
So this is a hot button issue for me. And my first thought in this case was that Zimmerman's actions seemed just like those of my badge-heavy employees that I frequently have to fire. So I am not very predisposed to by sympathetic to him, so thus my bias.
Anyway, keeping with my habit in this case of commenting more on issues at the periphery rather than of the case itself, this post from Ken at Popehat (I believe a former US attorney and current defense lawyer) is quite interesting. Here is the bottom line:
I'm in a rush, but I can't avoid commenting on the affidavit of probable cause submitted in the matter of George Zimmerman's shooting of Trayvon Martin.
It's a piece of crap....
This is not the worst affidavit I've ever seen — but it's damn close, and the decision to proceed based on it in such a high-profile case is stunning. Cynics may say that I've been spoiled by federal practice, where affidavits are on average considerably more careful and well-drafted, particularly in some districts. But if it takes a high-profile case to highlight shoddy practices in everyday cases, so be it. An affidavit like this makes a mockery of the probable cause process. There's no way that a judge reading this affidavit can make an intelligent or informed decision about the sufficiency of the evidence — even for the low hurdle of probable cause.
** footnote: I lived in Boulder through the whole Jon Benet Ramsey case. I believe this was like aversion therapy, the equivalent of your dad forcing you to sit in a closet and smoke three cigars to put you off smoking, which has turned me off high profile criminal cases forever.
Maricopa County will likely settle three suits against Joe Arpaio and Andrew Thomas for about $2 million. This is on top of nearly $1.5 million in defense costs the County has already incurred in the cases. Apparently, they consider themselves lucky to be getting off that cheap.
The good news: Andrew Thomas was disbarred, a fate he richly deserved for his amazing prosecutorial abuses, for example bringing fake RICO and bribery charges against a judge to force him to recuse himself from another case in which he was likely to rule against Thomas. Some of my many articles on Thomas are here.
But here is what depresses me: I believe he was disbarred only because his prosecutorial over-reach and abuse was aimed at public officials. Similar or worse abuses against private parties are seldom if ever punished. This is lawyers and public officials defending their own. When I see this much concern aimed at abuses of private individuals, I will be more likely to cheer.
Update: I am a terrible editor, but I am sure I did not type "Proprietorial" rather than "Prosecutorial" in the original title. I think I have some kind of weird auto-correct problem going on. Though until now I did not know "proprietorial" was a word.
I can't possibly excerpt this story of the jailing and torture of a woman for buying a box of Sudafed. Read it all and get totally pissed off. It makes me want to go to law school and pass the bar just so I can represent this woman pro bono.
I have migrated from being a death penalty hawk 30 years ago to being against the death penalty. In short, if I don't trust the government to be able to make decisions on alternate fuel loans, I don't trust them to make life and death decisions. I grew up in Texas where governors in political races would compete with one another on who has or promises to execute the most people. Literally they were running on body counts. This is not an environment conducive to good decision-making.
Further, the death penalty does too much to cut off one's full appeal rights. A black man in Mississippi in 1965 was never going to get his full Constitutional appeal rights. Men have been executed that later improvements in racial tolerance or DNA evidence might have exonerated.
Apparently, some of the original supporters of California's death penalty expansion in the 1970's* are now promoting its repeal, and are trying to woo other Conservatives to the cause
Thirty-four years later, another initiative is going on the California ballot, this time to repeal the death penalty and replace it with mandatory life without parole. And two of its biggest advocates are Ron Briggs and Mr. Heller, who are trying to reverse what they have come to view as one of the biggest mistakes of their lives.
Partly, they changed their minds for moral reasons. But they also have a political argument to make.
“At the time, we were of the impression that it would do swift justice, that it would get the criminals and murderers through the system quickly and apply them the death penalty,” Mr. Briggs, 54, said over tea in the kitchen at his 100-acre farm in this Gold Rush town, where he grows potatoes, peppers, melons, cherries and (unsuccessfully, so far) black Périgord truffles.
“But it’s not working,” he said. “My dad always says, admit the obvious. We started with 300 on death row when we did Prop 7, and we now have over 720 — and it’s cost us $4 billion. I tell my Republican friends, ‘Close your eyes for a moment. If there was a state program that was costing $185 million a year and only gave the money to lawyers and criminals, what would you do with it?’ ”
*For those who did not live through the 1970's, it is hard to describe how much the culture was absolutely steeped in the notion that city streets were Road Warrior-esque free-fire crime zones. The Dirty Harry movies, the Charles Bronson vigilante movies, Escape from New York, the Warriors, etc. etc all promoted this notion that we were too soft on crime and that we had allowed criminals to run wild.
I grew up in Houston. Around and embedded in Houston are a number of small cities and villages with their own police forces. You generally really, really did not want to encounter these folks. They often hired the dregs of large police forces, preferentially taking the hard cases even the larger forces could not tolerate. I remember the small village next to my high school hired one of the Houston Police officers who beat Joe Campos Torres to death (after Texas courts gave the two leaders of the beating probation and at $1 fine for killing the Vietnam vet). These police forces are famous for their hostility to non-whites.
So it comes as no surprise, but never-the-less with great irritation, to see another such Houston-area independent city (in this case Bellaire) refusing to punish criminal officers who gunned down an innocent man in his own driveway for the apparent crime of driving while black
Cop runs license check on a suspicious vehicle. Although they apparently committed no traffic violation, cop insists that his decision to run a check had nothing to do with the fact that the occupants were black, and happened to be driving in an affluent, predominately white neighborhood. The cop’s partner apparently then enters the wrong license number, which returns a car that had been reported stolen. So cop follows car into driveway, which happens to be the home of the driver’s parents, where he lives. Cop approaches driver and occupant with his gun drawn. Driver’s parents come out to see what’s causing the commotion. Cop roughs up driver’s mother. Driver gets up from ground to tell cop to lay off of his mother. Cop shoots driver, a full 32 seconds after pulling into the driveway.
The driver, who was unarmed, will now carry a bullet in his liver for the rest of his life. The cop was charged with first degree aggravated assault. A jury acquitted him. Now this week, U.S. District Judge Melinda Harmon dismissed the driver’s lawsuit against both the cop that fired his gun and the cop who entered the wrong license plate number, citing qualified immunity. According to Harmon, the officer acted “reasonably,” and moreover, wrongly accusing an unarmed man of stealing a car, pointing a gun at him, then shooting him in the liver, “did not violate [his] constitutional rights.”
Both cops are back on the force. The guy with the bullet in his liver? Tough luck. He’ll be paying his own medical bills.
Scathing report on how NY police gamed the process to improve their reported crime numbers. Nothing in this should be the least surprising to anyone who watched a few seasons of The Wire.
These are not just accounting shenanigans. There were actions the directly affected the public and individual liberty. People were rounded up on the street on BS charges to pad arrest stats while real, substantial crimes went ignored in a bid to keep them out of the reported stats.
There is one part in here that is a good illustration of public vs. private power. People who fear corporations seem to have infinite trust for state institutions. But the worst a corporation was ever able to do to a whistle blower was fire him. This is what the state does:
For more than two years, Adrian Schoolcraftsecretly recorded every roll call at the 81st Precinct in Brooklyn and captured his superiors urging police officers to do two things in order to manipulate the "stats" that the department is under pressure to produce: Officers were told to arrest people who were doing little more than standing on the street, but they were also encouraged to disregard actual victims of serious crimes who wanted to file reports.
Arresting bystanders made it look like the department was efficient, while artificially reducing the amount of serious crime made the commander look good.
In October 2009, Schoolcraft met with NYPD investigators for three hours and detailed more than a dozen cases of crime reports being manipulated in the district. Three weeks after that meeting—which was supposed to have been kept secret from Schoolcraft's superiors—his precinct commander and a deputy chief ordered Schoolcraft to be dragged from his apartment and forced into the Jamaica Hospital psychiatric ward for six days.
Outrageous. More at Radley Balko's place.
On the way to work today, which is normally only a 5-minute drive for me, there was a small fender-bender among a couple of cars. The cars did exactly what you are supposed to do: they pulled off the road into a nearby parking lot so they would not block traffic. The police could not be bothered, and just parked in the right lane, jamming traffic up for a mile or so. I looked - there was no debris or anything in the road that they were trying to block (you can confirm that from the picture below), the police simply did not have the common courtesy that the other drivers had.
Yes, the police car below is actually parked and unoccupied in the right lane at morning rush hour. The citizens involved can be seen pulled into the parking lot at the left. Though it is hard to see from the picture, the traffic backup extends well into the distance.
I was surprised to find this bit of awesomeness on the net:
Update: Speaking of which, Carlos Miller, from whom the title of this post is stolen, was yet again arrested for filming police in a public place.
For those of you not in Arizona that wonder from all the articles about him why Sheriff Joe is still elected by almost landslide majorities, and why Republicans all over the state still beg him for his endorsement, here it is:
A subsequent examination of the sheriff's file showed that residents of Maricopa County wrote to him regarding the presence of Mexicans in greater Phoenix.
Citizens saw day laborers. They saw people with brown skin. They heard Spanish spoken.
And what the letters reveal is enormous anxiety about Hispanics:
- "I always see numerous Mexicans standing around in that area . . . These Mexicans swarmed around my car, and I was so scared and alarmed . . . I was never so devastated in my life regarding these circumstances . . . Although the Mexicans at this location may be within their legal right to be there . . . I merely bring this matter to your attention in order that all public agencies, FBI, etc., may be kept informed of these horrific circumstances."
- "I would love to see an immigrant sweep conducted in Surprise, specifically at the intersection of Grand and Greenway. The area contains dozens of day workers attempting to flag down motorists seven days a week."
- "The Mesa police chief drags his feet and stalls . . . the head of the Mesa police union is a Hispanic."
- "As a retiree in Sun City, formerly from Minnesota, I am a fan of yours and what you are doing to rid the area of illegal immigrants . . . when I was in McDonald's at Bell Road and Boswell (next to the Chase Bank) this noon, there was not an employee in sight, or within hearing, who spoke English as a first language — to my dismay. From the staff at the registers to the staff back in the kitchen area, all I heard was Spanish — except when they haltingly spoke to a customer. You might want to check this out."
And Sheriff Arpaio did check it out.
None of the Hispanics described in the letters had broken the law. It is not against the law to speak Spanish or work as a day laborer.
Arpaio nonetheless gave the correspondence to Deputy Chief Brian Sands. Federal Judge Snow determined that raids and roundups quickly followed. Hispanics were rousted because white people were uncomfortable.
Sheriff Joe once did a roundup in tony Fountain Hills, which I would be surprised if it had even 5% Hispanic population, and managed to drag in for various petty violations (e.g. cracked windshield) a group that was about 95% Hispanic. His favorite thing to do, when he isn't busting into homes with Hollywood celebrities, is to send his deputies into a business and have them handcuff everyone with brown skin and refuse to release them until they or their family members have arrived to prove they are in the US legally.
This whole article is a good roundup of yet another abusive side of Arpaio, his flagrant disregard for public records laws and the rules of evidence. In Maricopa County, "exculpatory evidence" and "shredded" have roughly the same meaning.
I have written frequently of the non-crime called "contempt of cop" which seems to be at the heart of so many bad arrests and harassment incidents. Well, you will be happy to know that the helpful folks at the TSA want the same power, to be able to arrest anyone who does not show them proper respect and deference.
Postscript: Thinking about this more, I have to add a personal angle. As my company privately operates public parks, our employees are often taking over from state park rangers who have law enforcement credentials. When we propose our services, we often get pushback on this issue -- how are we going to live without all these law enforcement officers with arrest powers and guns and badges in the parks?
The answer I give is: Things will be better. It is an enormous mistake to handle customer service problems with a badge and gun and hard-ass attitude, but that is often what happens in parks. You don't see McDonald's issuing citations to their customers, but state parks organizations do it all the time.
It turns out that the reason there are so many law enforcement officers in parks has nothing to do with demand -- with very few exceptions, the parks we operate all require fractions of an FTE of law enforcement. Maybe 20 hours a year per park. But there are huge incentives for state workers to get a law enforcement license. Beyond the psychic advantages of having a gun and badge, they typically qualify for a much richer law enforcement pension plan. Park supervisors don't care -- the extra benefits don't come out of their budgets.
Radley Balko linked this article about Virginia drivers being fined for not having proof of insurance, something that is actually not illegal in the state. Apparently, it is illegal to drive without having insurance coverage, but there is no requirement to carry proof of insurance or any crime defined in law for not carrying such proof.
SO there is some "confusion", but note that the only confusion is in the mind of state law enforcement officers, who are attempting to exceed the law. The obvious solution, to me, would be to educate the officers and prosecutors on the damn law. Of course, agents of the state have a different solution (emphasis added)
Lynchburg Commonwealth's Attorney Michael R. Doucette agreed that failure to have proof of insurance while driving is not illegal.
"Rather, the offense is having an uninsured motor vehicle and not paying the uninsured motorist fee of $500 per year," Doucette said.
Doucette said requiring drivers to present either proof of insurance or proof of payment of the uninsured vehicle fee would go a long way to clear up the confusion. The General Assembly has considered such a mandate at least three times, but has never passed it.
Get it? The best way to solve the problem of the state exceeding its authority is to just give the state new powers and criminalize more things so its actual authority matches it's desired powers. I fear that this will also be the state's answer for the fact that photography is not a crime.
Apparently, while Sheriff Arpaio was busy raiding businesses and zip-tieing everyone with brown skin and distracted by his attempts to arrest judges that handed down unfavorable decisions, there was actual violent crime happening in Maricopa County. With the Sheriff busy with celebrities raiding homes suspected of cockfighting with tanks, minor stuff like rape got put on the back burner. The story has just been discovered by the AP but it has been kicking around town for a while:
The Maricopa County Sheriff's Office failed to adequately investigate more than 400 sex-crime cases, including dozens in El Mirage, over a two-year period because of poor oversight and former Chief Deputy David Hendershott's desire to protect a key investigator from bad publicity, according to documents pertaining to a recent internal investigation released by the Sheriff's Office.
The errors led to interminable delays for victims of serious crimes who waited years for the attackers to be brought to justice, if they were ever caught.
More than 50 El Mirage sex-crime cases, most involving young children reportedly victimized by friends or family, went uninvestigated after police took an initial report. The lack of oversight was so widespread in El Mirage that it affected other cases: roughly 15 death investigations, some of them homicides with workable leads, were never presented to prosecutors, and dozens of robberies and auto-theft cases never led to arrests.
The East Valley Tribune actually had details on this story over three years ago, in a story that won a Pullitzer, but the Sheriff never bothered to do anything until the story hit the AP.
Employees were preparing to close the 99 Cent Discount Store in El Mirage on Aug. 20, 2006, when a teenage girl ran inside.
Agitated and refusing to leave, the 15-year-old girl told the store's manager that two men had just raped her in a ditch outside, a police report says.
Paramedics took the girl to Del E. Webb Hospital in Sun City West, where medical staff found physical evidence of sexual assault, according to deputy chief Bill Knight, head of the sheriff's central investigations, who researched the case.
At midnight, a detective from the MCSO's special victims unit arrived at the hospital to begin an investigation, the report says.
But the investigation never really began.
The MCSO closed the case a month later by designating it "exceptionally cleared," which is supposed to be applied to cases where a suspect is known and there's enough evidence to make an arrest but circumstances prevent an arrest. That designation allows the MCSO to count the case in the same reporting category as investigations that end in arrest.
But in this case, the detectives didn't have a suspect and appear to have done no work on the case.
I would love to see a reincarnation of "the Wire" focused on our Sheriff's department. All the same corruptions in the show are on display every day here in Arizona.
Hence, the government’s chickenshit false statement trap works — even though the government agents set it up from the start. Now, however weak or strong their evidence is of the issue they are investigating, they’ve got you on a Section 1001 charge — a federal felony. In effect, they are manufacturing felonies in the course of investigations.
You think this is an improbable scenario? You think I’m talking about rare and extreme cases to color the entirety of federal law enforcement? To the contrary, as a federal defense attorney, I’m encountering this more and more often. Not to sound like an old fart, but we never indulged in such bullshit when I was a federal prosecutor (cue the scoffing from many defense attorneys). But in the last 12 years, I’ve seen it in a dozen cases, and heard about it from colleagues across the country. It’s now routine for federal agents to close out an investigation with a false-statement-trap interview of a target in an effort to add a Section 1001 cherry to the top of the cake.
The lesson — other than that criminal justice often has little to do with actual justice — is this: for God’s sake shut up. Law enforcement agents seeking to interview you are not your friends. You cannot count on “just clearing this one thing up.” Demand to talk to a lawyer before talking to the cops. Every time.
Read it all. He explains how easy it is to fall into this trap, and how even non-material statements get spun as felonies. Remember, Martha Stewart went to the slammer for lying to investigators, not for stock fraud or insider trading.
The unindicted co-ejaculator. I'll let Radley Balko explain it.
There are cases in which I support jury nullification. I cannot imagine sitting on a jury and voting to convict someone of violating a law I thought to be grossly unethical, no matter what the jury instructions were.
In response to Julian Heicklen’s motion to dismiss his indictment [for distributing pamphlets on jury nullification] on First Amendment grounds, federal attorneys have filed a response with the court. Here is the federal government’s position: “[T]he defendant’s advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred” [emphasis added]. This is really astonishing. A talk radio host is subject to arrest for saying something like, “Let me tell you all what I think. Jurors should vote their conscience!” Newspaper columnists and bloggers subject to arrest too?
Next up -- it will be illegal to speak out against the President's ability to detain or assassinate Americans who he believes to be terrorists.
And he keeps getting re-elected by wide margins. Unbelievable.
In a performance worthy of a Mafia don, Sheriff Joe Arpaio dissembled under oath today in a disciplinary hearing for disgraced former Maricopa County Attorney Andrew Thomas, and Thomas' ex-underlings, former deputy county attorneys Rachel Alexander and Lisa Aubuchon.
During more than two hours of questioning, mostly by counsel for the State Bar of Arizona, Arpaio's favorite response was, "I don't recall," which he repeated numerous times.
He asserted that he had delegated all authority concerning the investigations of the Maricopa County Board of Supervisors, county judges, and various other county officials to former Chief Deputy David Hendershott, Arpaio's hand-picked fall guy.
For those who don't live here, I can assure you that at the time, Arpaio took personal credit for everything the department did, using his simply astronomical PR budget.
Here, for example, is one of the key cases Arpaio is being asked to discuss. He and former county attorney Andrew Thomas waged a war for years against their bosses, the County Supervisors, who frequently had the temerity to try to circumscribe Thomas's and Arpaio's power. Among other craziness, Thomas, backed by Arpaio, filed a RICO suit against the supervisors. When a Judge hearing the case, Judge Donahoe, issued some unfavorable rulings in that case, Thomas and Arpaio filed a bribery case against Donahoe, their wacky theory being that since the Supervisors had authorized a new County Court building, this was a bribe to Judge Donahoe, whose court would now be in the new building. Arpaio claims he had nothing to do with any of this. Here is his uninvolvement, via the AZ Republic.
Maricopa County Attorney Andrew Thomas on Wednesday filed criminal charges against Gary Donahoe, presiding criminal judge of Superior Court, accusing him of hindering prosecution, obstructing a criminal investigation and bribery.
The three felony charges relate to Donahoe's handling of criminal investigations into county officials, particularly a controversial court tower under construction in downtown Phoenix.
Thomas and Sheriff Joe Arpaio, who stood side by side during a news conference Wednesday, have repeatedly questioned the $340 million joint project of the Superior Court and Maricopa County government.
By the way, it is a nice touch, right out of some place like North Korea, for a prosecutor to bring a judge up on charges for "hindering prosecution" merely for issuing a ruling form the bench which wasn't exactly what the prosecutor wanted. Its more scary when you consider just how many judges truly are in the tank for local prosecutors.
An interesting story about the background of the real "Sybil," and how much of her personality problems were the result of aggressive third parties trying to make their career -- totally unsusprising to anyone who has studies the great child abuse / day care hysteria and JaneyReno's Miami method. A very brief excerpt:
Mason, like so many patients diagnosed with multiple personality disorder (now rechristened “dissociative identity disorder,” in part to shake the bad rep of MPD), improved markedly under certain conditions — namely, the absence of her therapist. For several years after her therapy concluded, she lived happily as an art teacher at a community college, even owning her own house. But the publication of “Sybil” destroyed that life; Schreiber, who had invented so much of her biography, had so thinly disguised other details that many acquaintances recognized her. Too self-conscious to endure this exposure, Mason fled back to Wilbur and lived out the rest of her life as a sort of beloved retainer, cooking her doctor breakfast and dinner every day and nursing her on her deathbed.
Wilbur, on the other hand, thrived, presiding over the explosion of MPD diagnoses as one of the foremost experts on the condition. She played a key role in promoting the belief that conspiracies of fiendish, sadistic adults were secretly perpetrating murder, child rape and mutilation, human sacrifice, and cannibalism across the country and that repressed memories of such atrocities lay at the root of most MPDs. Innocent people were convicted of these crimes on the basis of testimony elicited from highly suggestible small children and hypnotized adults. Families were sundered by therapists who convinced their patients that they’d suffered similar ordeals despite having no conscious memory of it. This opened the door to years of expensive and ineffective therapy.
While nominally about the Gibson Guitar raid, this article is actually a great primer on abusive prosecutorial tactics businesses are increasingly facing
Prosecutors who are looking for an easy “win” know that businesses roll over. A public raid on its offices, or an indictment of its officers, can destroy a business’s reputation and viability. That makes the owners easy to intimidate into a plea bargain.
If they choose to fight, they face the full wrath and fury of the feds. In the Gibson raids, the SWAT teams were deployed even though Gibson had offered its full cooperation to investigators. Such raids are increasingly used to intimidate citizens under suspicion. The orchid importer, a 65-year-old with Parkinson’s, was shoved against a wall by armed officers in flak jackets, frisked, and forced into a chair without explanation while his home was searched
The government also attempts to get low-level employees to “finger” their bosses. For example, the feds threatened Gibson employees with long prison sentences. This is not a search for truth, but an immoral attempt at extortion to win convictions. Investigators examine the lives of “little fish” and use minor, unrelated violations (smoking a joint, or exaggerating income on a loan application) to pressure them to back the government’s case against their employers. Mobsters have experience with threats like this, but a secretary or an accountant is scared to death by the threat of prosecution.
A favorite ploy of prosecutors in these cases is to charge defendants with false statements based on their answers to the investigators. The sentence for this can be five years in prison. No recording is made of the interviews — in fact, the feds prohibit taping the interviews — and the agents are not stenographers. They cannot possibly recall the exact wording of the questions and the answers. Yet after the interview, they will produce a “transcript” replete with quotes throughout. And if a witness says he did not actually say what the agent put in quotes, it is the witness’s word against a fine, upstanding federal agent’s. Staring at a five-year sentence will get most people to say whatever the government wants them to.
The feds also pile up charges. According to Juszkiewicz, the Justice Department warned Gibson that each instance of shipping a guitar from its facility would bring an added charge of obstruction of justice. Prosecutors routinely add extra counts to stack potential prison sentences higher. For instance, faxing invoices for the wood would be charged as wire fraud. Depositing the check for the sale of the guitars would be money laundering. The CEO’s telling the press he is innocent would bring charges of fraud or stock manipulation. The intent is to threaten such long sentences that the targets plead guilty rather than risk decades in prison.
Prosecutors further tighten the screws by seizing the assets of the company, a tactic once used against pirates and drug lords but now routinely used to prosecute white-collar crimes. The federal agents seized six guitars and several pallets of ebony during their initial 2009 raid against Gibson. Federal law allows assets to be seized not just from convicted criminals, but also from those never charged. Owners must prove that the forfeited property was obtained legally; otherwise, the government can keep it. That gives the government incredible leverage, because without the seized inventory and bank accounts, the business will most likely go under. How can Gibson make guitars if the wood is being held by the government? How can it service customers when the government took its computers as evidence? How can it pay lawyers when its bank accounts were seized? Asset forfeitures bring to mind a similar twist on the law uttered by the Queen of Hearts in Alice in Wonderland: “Sentence first, verdict afterwards.”
Ken at Popehat has some good thoughts, prompted by the dropping of the rape case against Dominique Strauss-Kahn.
The critical narrative holds that this case shows that the rich and the powerful are above the law. I’m not so sure. I don’t believe the DA took this route because he was afraid to prosecute a rich and powerful man, or as a favor to rich and powerful forces behind the curtain. But there’s no doubt that money and power get you a vastly better chance of this result. They get it because rich and powerful people can field a team of lawyers and investigators to find problems with the case. Those problems are often there — but usually the defendants don’t have the money to hire teams of people to find them. The rich and the powerful draw media attention, which leads to people coming forward with information that might not otherwise come out. Sometimes this hurts the defense, but just as often it yields critical impeachment evidence about prosecution witnesses. Perversely, this case shows how wealth and power and lead prosecutors to discover flaws in their own case. Most rape cases wouldn’t get anywhere near the police and prosecutorial scrutiny that this one did. But the police and the DA knew they were under the spotlight, and knew that Strauss-Kahn could field a serious team, and devoted vast resources to the case — resources that revealed issues that might never have been discovered in a rape case against the poor and the obscure.
Why decry the quality of justice that the rich and powerful get, when we could decry the level of justice that the poor get? The justice that the rich and powerful get illustrates how the system can meticulously test the adequacy of evidence against an accused. Why not try to raise every defendant closer to that level, rather than suggest that we ought to tear down the adequate justice available to the few? Believe me, the government lovesthat narrative — loves it when people view a vigorous and thorough defense as some sort of scam to be scorned. Resentment of the justice that Strauss-Kahn can afford is the government’s weapon, which it wields to get you to accept steadily less and less justice in every other case.
I am sure there are situations where the rich get a special break, but anyone who wants to argue that they systematically get off easier has to explain Martha Stewart, who went to jail not for insider trading by lying to the police, a charge no street hustler would ever be brought to court on. And how about Barry Bonds, on whom the full force of and resources of the US Government is focused for a crime I can find going on in about any Gold's Gym in the country.
The imbalance of wealth and power are on the prosecution side, and politicians trying to get elected propose laws constantly to increase this imbalance. The rich have the resources to stand up to this onslaught, the poor often do not.
Back in 2007, the Grits for Breakfast blog noted that Williamson County, Texas, District Attorney John Bradley gave some curious advice on a discussion board to another prosecutor. The other prosecutor was asking about how to construct a plea agreement in a way that would forfeit any future right to DNA testing. Bradley responded, “Innocence, though, has proven to trump most anything.” How unfortunate! He then added:
A better approach might be to get a written agreement that all the evidence can be destroyed after the conviction and sentence. Then, there is nothing to test or retest. Harris County regularly seeks such agreements.
We give prosecutors strong incentives to take away people's freedom and put them in jail. Guilt or innocence is not part of their incentives, only closing cases and locking people away. Given these incentives, we should be particularly careful to circumscribe their behavior. In reality, we give them a virtual free pass. Prosecutors are almost never held accountable for even the most abusive and illegal behavior.
Sheriff Joe Arpaio has a web site where he encourages the public to poke fun at the ugliest or most odd-looking mug shots taken by his officers. He has a mug shot of the day contest, where citizens can vote for their favorite.
What do all the people pictured in these photos have in common? The are all innocent -- by definition, since they have not plead in any court or gone to trial.
Sorry, I know he has added the reminder that these folks are innocent on that page, but this kind of public shaming and ridicule for un-convicted arrestees (part and parcel with other favorites like the perp walk) are absolutely inappropriate for the police to engage in. It is absurd to see our Sheriff running his only little TMZ.
(Yes, I know there are private sites that engage in this, as the photos are public information. I have always wondered why arrest records are not confidential, but that is another post. There is a big difference between a private entity engaging in such a behavior and a law enforcement officer doing so.)