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After years of working on the problem of prosecutorial abuse, I have come to the conclusion that it is very difficult to overcome in a typical case of abuse. Once in a while, some relief can be obtained, but not often enough. The only way to deal with the problem, as I see it, is political. You need to run for office with the promise to voters that if you are elected you will try to appoint a "Town Attorney General" or "City Attorney General". This is like having a new sheriff in town, not one with a gun, but one with the money and legal authority to go into court to protect the rights of individuals against the ever-increasing loss of many of their rights, including the loss of rights through prosecutorial abuse.
This may be your first time to my website, looking for information to help yourself or a member of your family who is the victim of prosecutorial abuse. Victims of prosecutorial abuse not only include the criminal defendant, but includes the defendant's family members, as well.
What I will ask you to and every other victim of prosecutorial abuse to do is to take the abusive criminal-justice system away from the abusers by you, the victim, in two distinct ways:
FIRST: Create an Email List of Residents and Small Businesses in the Community
Before describing the main event, I want to describe a preliminary event that you can organize, which will help you achieve the primary (SECOND) event described below. This FIRST event is to create a new medium for your community to provide the information to residents and local businesses that the local media do not provide, either because they are owned by the major corporate interests, or because they are afraid of losing advertising they have (or hope to get) from major corporations such as Wal-Mart, other top 100 retailers, and other major corporations.
I can't overemphasize how important it is to create a permissive e-mail mailing list for your community. The list must be "permissive" (i.e., with the explicit permission or authorization of each member of the list - to avoid charges of illegal "spamming", with a link put into each communication enabling them to remove themselves from the list with no hassle). The permissive e-mail mailing list becomes your own newspaper to promote the interests of the community, which generally are not the interests of the persons or corporations which own your local commercial media.
The size of your community is obviously a factor. I am not suggesting that you create an e-mail mailing list for New York City, Detroit, Los Angeles, Tulsa or other large city. Instead, I am talking about towns and villages (even small counties) having a total population of 25,000 or less. I'm currently working with one town of about 12,000 population, and 3,000 homes. If it takes an average of 15 minutes per home, then 3,000 homes would require 750 hours of work. If someone wanted to fund this at a minimum wage level (say, $6/hour), the cost of creating the list would amount to $4,500, a lot less than purchasing the local newspaper for $500,000 or $1,000,000 or more.
This new medium for your community would be a permissive e-mail mailing list consisting of the e-mail addresses for most if not all of the residents and small businesses in your community. The small business addresses can be obtained from the local Chamber of Commerce, or by stripping the addresses from its website. Always remember not to spam, and that you need approval from the business or resident before adding the e-mail address to your community permissive e-mail mailing list.
Obtaining the e-mail addresses of residents is more difficult. Whereas businesses are confined to business areas and can be reached by foot or bicycle within 1-5 days for most communities in the United States, residents are scattered over an area perhaps 20 times the size of the area dedicated to businesses, with much greater time involved in creating the desired list.
My suggestion is to find groups of interested persons, such as unemployed persons, seniors, individuals employed only part-time, persons on public assistance, college students, high-school students, church members (especially churches catering to minorities and the poor). They can do the needed leg work, if they can be shown how the permissive e-mail mailing list can and would be used to further their specialized interests. In other words, try to share the workload by putting together a coalition of interested local groups to provide the people you will need to put the list together.
Before giving you some pointers on what you can do to create the list most effectively, I want you to understand how the list would help to cure the problem that brought you to this website.
Prosecutors are elected through backing by the local press (or a major part of it) and they have ready access to the press after they are elected, so that the local press prints almost anything offered by the prosecutor and his/her office. On the other hand, the victims of prosecutorial abuse are not able to get their story told, for a variety of reasons, but mainly because the disclosure of prosecutorial abuse would make the prosecutor and his/her mouthpiece (the local press) look bad, and cause a major reduction in the ability of the local publications to mislead voters about what is going on in the community.
A permissive e-mail mailing list including the e-mail addresses of most residents and small businesses in the town or village would enable the owners of the list (perhaps you and a coalition of groups discussed above) to create your own "newspaper" or equivalent (really, a weekly newsletter) to send to the list providing information of value to them that the local media ignores. What type of information? Well, how about prosecutorial abuse and the damage that it is causing to your community. You might get a local college professor of economics to estimate the damage done to the community if 20% of the prosecutions are unjustified, and done solely to enhance the political career of the prosecutor and/or his/her assistant prosecutors.
What else could you say in the newsletter? How about explaining to your list members how Wal-Mart's low prices are causing the town and county to see its valuable jobs being transferred to China and other countries with substantially lower wages. How about telling residents and small businesses that they could have FREE broadband service, FREE healthcare coverage, REDUCED real estate taxes (for owners) and REDUCED rent (for tenants). You have never seen anything like that in any of the local media, have you?
The purpose of the permissive e-mail mailing list is to have a way to get a sufficient number of people in your community informed at the same time to be able to get them to take action that would be of benefit to them and the rest of the community. An occasional item in the local newspaper (especially when the item is incomplete, and has no followup) is basically worthless. You need to have control of the medium to be able to provide repeated information about the problem to be able to educate the local community members. There is a saying about advertising, "The more you tell the more you sell!" Also, as to the efficacy of advertising the radio salespersons will tell you that recency and frequency are important factors. You have to keep repeating the message because not everyone understands the message the first time they hear or read it. The first time there may only be 1% of understand the message. The next 2-10 times might bring the understanding level up to 25%, and thereafter with repetition you can bring the understanding percentage to much higher levels, to be able to prevail in a contest (such as election) where those issues are raised.
Also, email will help you identify and motivate candidates for local office; help to market their candidacy to the local residents and small businesses; and help to motivate local voters to vote these candidates into office.
Pointers on Creating the Permissive E-Mail List for Your Community
With this said, now look at my SECOND point.
SECOND: Run or Get Someone to Run for Local Office
The second thing that you can do is to either run for elective office yourself, or encourage the right person (such as a friend, relative, associate or neighbor) to run for local elective office (such as for council, mayor, selectperson or similar office for running of a town or village) in your own town, village or county (or in a nearby town, village or county - even if you don't live there - residency requirements can be overcome in many instances in court).
You should run on the 16 election-issue platform I have set up for this purpose (whether the candidate is you, me, or someone else you can encourage to run). See my website and 16 election issues at Website for Candidates for Local Office - 16 Election Issues.
At your request, I will try to come in to your town (at my own expense) to campaign for you or other person running on my 16-point platform (or a substantial part of my platform, including the "Town Attorney General" part).
Once elected, you or other candidate running on my platform should do what you can with the other members of the town council to have me or another similarly qualified attorney as "Town Attorney General" for your town, village or county. The Town Attorney General is to ensure that the rights of the residents and small businesses of your town are enforced against the major corporations and others that have been systematically depriving your town of its jobs, its services, its higher-paying jobs, its standard of living - and sending the assets of your town to foreign countries. There are legal ways to stop this from occurring and to recover damages for the community for jobs already stolen. The Town Attorney General knows what to do and should be appointed to do his/her job, for the benefit of you and the other residents of your community, including its small businesses.
If this takes places, your town will lose its abusive criminal prosecution system. Abusive prosecutions are, as you known, very costly to the town and its residents, destroying the personal and economic lives of the victims, and imposing huge, wholly needless costs on the community, just to give overzealous prosecutors a win record against victims who have no money to fight, and who are bound to lose because of the prosecutorial advantages that, in New York City, enable federal prosecutors to put their criminal defendant victim (felony defendant) in jail 99.5 to 99.8% of the time. This is not a fair criminal justice system. It is corrupt, abusive, oppressive and can be stopped at the local level of government, by the appointment of a civil prosecutor ("town attorney general") who will sue large corporations for the injuries they have been inflicting upon the residents and small businesses of your town, and to distribute the lawsuit recoveries to the residents and small businesses of your town, to the extent of perhaps $5,000 to $20,000 per year per family on the average or, better yet, to pay for healthcare and dental care and free broadband service to all residents and small businesses in your town. With this wholly predictable consequence for a small town or village that appoints a town attorney general, a criminal prosecutor becomes a relic and had better watch out or the criminal prosecutor may wind up squaring off against the civil prosecutor in his/her role of enforcing the civil rights of you and the other members of your community.
I hope that by now you see the potential of what I'm talking about. The best way for you to fight prosecutorial abuse is to help me get someone into your town who can do what you need to have done, which is to have legal representation to enforce the rights of individuals and small businesses against the illegal conduct of major corporations and others who disregard the law and hurt your community in their never-ending effort to strip your community of its jobs and other wealth, and send the jobs to other, low-wage countries, while asking you to continue buying their high-priced products. This has got to come to an end. Appoint a town attorney general to show you how to protect your town or village from losing whatever jobs it still has, and how to bring back many good jobs to your community. Study my 16 election issues with this in mind. There are things we can do in your town, but we need to get into politics to accomplish what needs to be done. This means that YOU need to run for office on my 16-point program and get the ball rolling.
When we have the first community in the U.S. appointing a town attorney general, and the residents of the town start seeing better jobs, free healthcare, free dental care and free broadband service, you and I know that nearby communities will demand the same thing, and by that time you and I will know that we are on a winning course to taking back our country.
You can make this happen, and I'm here to help.
Please look at my town attorney general website, at My Town Attorney General Website and then look at my election issues website, if you haven't done so already, at My 16-Point Election Issues Website and then look at my website for my first political race in the real world, for New York Attorney General (Green Party) at Website in Support of My 2006 Candidacy for New York Attorney General. [Note: The 2nd Circuit refused to grant an injunction putting me on the ballot.]
Now, I've said what you really need to know, and I invite you to continue reading the rest of my discussion of what you can do to fight the prosecutorial abuse which brought you to my website.
Having said all the above, let me introduce myself. I am Carl E. Person, an antitrust and civil rights litigator in federal and state courts for more than 40 years. I have created the concept of the Town Attorney General, both in a book, Saving Main Street and Its Retailers (www.lawmall.com) and in an Off-Broadway performance (www.townattorneygeneral.com). My picture, in costume for the presentation, is at Carl E. Person in Costume of U.S. Solicitor General and the SEAL for the Office of Town Attorney General (designed by Glen Brandt) may be seen at Seal for the Town Attorney General
Fighting the Prosecutorial Abuse Is Difficult, and Usually Non-Successful
I have outlined in my four related websites (www.lawmall.com/abuse; www.lawmall.com/criminal; www.lawmall.com/forfeit; and www.lawmall.com/pleabarg) the various things which a lawyer could try to fight prosecutorial abuse in a specific case. In actual fact, when tried, the results generally are not favorable, although I strongly suspect that wealthy defendants with power law firms can get greater mileage using the techniques I outline than typical criminal defendants, who have no money and often inadequate or unwilling counsel (burdened with too many cases and the knowledge that whatever they do will probably be a waste of time, and antagonize the prosecutor, who in our new criminal justice system has become the judge and jury for most defendants). But this is not what I want to discuss with you.
How You Can Reduce Prosecutorial Abuse in Your Town
The time you (and your lawyer) spend in trying to overcome prosecutorial abuse is generally wasted, and I recommend that you spend the time trying to change the system which encourages prosecutorial abuse. The criminal prosecutors achieve or expect to achieve fame, fortune and power by racking up criminal-case victories regardless of the guilt or innocence of the accused under existing principles of law. They readily learn that the way to become elected or appointed to Congress, the state or local Legislature, a judgeship, district attorney or U.S. Attorney position or other governmental office, is to get and publicize convictions, and to maintain that they are just in spite of overwhelming evidence to the contrary in too many cases.
The consequences for the overzealous prosecutor is too often the sought-after fame, fortune, power and political position, but the victims (including virtually everyone in the community) are left to pay the bill for wrongful incarceration, excessive criminal proceedings, destroyed families, wrongfully-confiscated property depriving a newly-accused defendant of the funds to defend himself/herself, wrongfully-impoverished families requiring governmental assistance, loss of skilled workers, loss of voters needed to strike a more just political balance in the country, and various other consequences which need to be explored by the press and book authors.
The way of halting this ever-increasing trend of prosecutorial abuse with resulting evils (directed against individuals, I might add, not against corporations which are difficult to put in jail) is to switch the emphasis from criminal to civil, from criminal prosecutor to civil prosecutor or what I have named a Town Attorney General, or "Little Eliot Spitzer". As most of you know, Eliot Spitzer was New York's elected State Attorney General who (until elected and sworn in as New York's newest Governor) was enforcing laws against major corporations that the federal government chose not to enforce. In 2004, Eliot Spitzer brought or threatened lawsuits against various financial corporations and others that resulted in payment to Spitzer's Attorney General Office of $2.3 billion in settlements, or $115 per resident of New York State.
In a small town, a "Town Attorney General", when bringing meritorious lawsuits against corporations that are injuring the town, should be able to have settlements after deducting expenses of litigation amounting to about $5,000 to $10,000 per family in the town, more than enough to provide FREE healthcare and eliminate property taxes for all residents of the town.
If you, as a prospective voter, heard two candidates in your town running for mayor, and one of them said he/she has a plan to obtain FREE healthcare and the elimination of property taxes for all residents in the town, and the opposing Mayor wants to have another Wal-Mart or two to come into town, who would you vote for?
Why not be the candidate for mayor and make your argument as the main part of your campaign that you are going to appoint a Town Attorney General, and move the town into civil law enforcement against invisible corporations rather than criminal enforcement against hapless residents who wind up victims and represent huge present and deferred costs to the community to prosecute, incarcerate, feed, clothe, provide medical care, and take care of the family members who wind up as indigents and problem families for the town.
I have a ready-made campaign and campaign website for you with my 16 election issues, at My 16 Election Issues Website for Local Elections. I'm also willing to help you campaign in your town or village (or even a nearby or distant town or village - we can go into court to strike down local residency requirements in many cases).
By doing this you would be able to fight back against the prosecutorial abuse, and actually have a pretty good chance at getting elected to the town's governing body. Then, you would be in a position to have the town appoint me (or some other antitrust and civil rights litigator) as town attorney general, to start a program of enforcing the various rights of the residents and small businesses of your town that are not being enforced by the federal and state Attorneys General, or any federal or state agency, or even by your town, village or county (because traditionally the enforcement of such rights have been through federal or state officials or agencies). Now, with the federal and state governments being an adjunct to the corporate interests that supply the campaign funds, protection for the residents of your town has got to come from the town itself, through a legal officer I have named and described as the "Town Attorney General".
I can help your candidacy. You can call upon me to come into town and put on my show, Town Attorney General Meeting (at no cost to you, the town, or the audience) to explain what I (or another qualified lawyer) could do for the town as Town Attorney General. I describe this presentation or performance in my Town Attorney General website.
The Town Attorney General, if appointed, will create an economic revolution for your town and relegate abusive, over-zealous criminal prosecutors to a minor role, if not defendants in a civil rights suit to enjoin such conduct. The Town Attorney General will fight to enforce the rights of the residents and small businesses of your town instead of trying to put too many of the residents in jail for excessive sentences, and at excessive, wholly unnecessary costs and injury to the community.
This is what you and I can do to stop prosecutorial abuse.
Carl E. Person, "Town Attorney General" and (unsuccessful) Candidate for NY Attorney General (2006)
Note: A complaint filed by a businessman, his wife and children against the District Attorney of Suffolk County, New York (alleging 15 separate counts of unlawful, prosecutorial abuse) in using New York's ex parte forfeiture statute to strip the businessman and his family of all of their assets before he learns of the criminal proceeding, is available for interested persons to study. See Complaint Alleging Prosecutorial Abuse by District Attorney of Suffolk County New York and Requesting Declaratory Judgment of Invalidity of New York Forfeiture Statute, CPLR Sections 1310-1352.
Note: This complaint, filed by a businessman, his wife and children against the District Attorney of Suffolk County, New York (alleging 15 separate counts of unlawful, prosecutorial abuse) in using New York's ex parte forfeiture statute to strip the businessman and his family of all of their assets before he learns of the criminal proceeding, is available for interested persons to study, together with two related motions for relief.
A major purpose of this other, new website, the "Forfeiture" website, is to offset the major, unfair inherent advantages of prosecutors working for profit-driven (as distinguished from justice-driven) "White Collar Criminal Divisions" and an increasingly disabled defense bar (who recognize they are unable any longer to conduct an effective defense) -- by providing a set of pleadings and motions (i.e.,, forms) which an accused together with his/her/its civil and criminal attorneys can use to help determine the accused's rights and how to go about enforcing them against a wrongdoing, profit-making prosecutorial enterprise. These forms are:
Another related website on prosecutorial abuse (my "Abuse" website), created by the same author in 1998, should be reviewed, as well. It contains additional discussions on prosecutorial abuse and what a victim might be able to do about it. See Prosecutorial Abuse Website.
Also, see my website on the evils of plea-bargaining, at Plea Bargaining: an Unconstitutional Delegation of Judicial Power to the Executive Branch of Government; a Free-Market Solution to Unconstitutional Plea-Bargaining
!Subversion of the American Criminal Justice System. Convicting Innocents. Abuses of the Laws, Excesses, Unfair Prosecutorial Tactics and Misconduct in Undercover "Sting" Operations. Coercive, "Plea-Bargaining" Practices and Collateral Prosecutions. A Wave of Prosecutorial Misconduct is Subverting Standards of Fairness and Justice. Prosecutorial Misconduct has Reached Epidemic Proportions in our Country.!
Criminal Prosecution Reform Website - An Incomplete but Growing List of the Most Important Changes Needed in the Process of Indicting and Convicting Persons Accused of Criminal Conduct in the United States.
Website Purpose: To create a gathering place for individuals and groups concerned about the injustices being committed by the nation's federal prosecutors and criminal justice system upon the public, with the accompanying loss of civil rights for persons unlawfully indicted and convicted, and wrongfully remaining in prison after it becomes evident of the improper conviction, continued wrongful incarceration, and continuing injustice. The evils associated with the imprisonment itself require separate enumeration (for later website creation). This present list concentrates on the main evils of the process by which a defendant becomes indicted and then convicted of a crime through a federal prosecution. Many of the evil practices are undoubtedly found in the numerous state and local criminal justice systems throughout the United States.
This website puts together relevant information gathered from experience, interested persons, books, websites and other sources, for dissemination to the victims and future victims of the system, and their families. The website lists and discusses some of the most important failures of our criminal justice system in the process that leads up to a conviction, and what should be done to correct the problems, for society at large, and for individual victims of the present, shameful system.
Why the Federal Prosecutorial System Has Deteriorated - A Few Observations. Here are some of the more obvious explanations for the present state of affairs with the federal prosecutorial process:
The creator of this website is a lawyer with more than 40 years of civil litigation exerience, who recently has been involved in both criminal and civil litigation of essentially the same issues and witnesses, giving a rare opportunity to compare the federal prosecutorial process with the federal and state civil litigation process.
The bottom line is that the criminal process has been streamlined by the politicians to the extent that (i) the vast majority of all federal criminal trials resulting in a conviction are probably conducted through illegal and unethical conduct by the prosecutors (if the facts were known and set forth to an independent panel of experienced attorneys and/or law professors with no ax to grind), and (ii) the vast majority of all federal guilty pleas are the result of the defendants and their attorneys being aware that federal criminal trials result too frequently in unjust convictions, contrary to the rule of law, which forces innocent persons into pleading guilty. These guilty pleas result because (i) the defendant has insufficient funds to pay for a proper defense; (ii) the criminal defense attorneys available to indigent defendants are incompetent and/or insufficiently paid to enable them to defend the client properly; and (iii) the unlawful activities of the prosecutors are substantial, continuing, determinative of the outcome, and cannot be properly offset without adequate funds and competent counsel.
In other words, we have a federal criminal prosecution system in which the mere accusation of criminal wrongdoing is sufficient to force about 95% of the accuseds to plead guilty, even though most of such persons would have been found innocent by a jury if there had been a fair trial under law.
What are these abuses which must be corrected? First of all, there are many more than the listed problems. The problems listed below are the most important problems which I, as the author of this website, have identified as most important from my point of view, but there are undoubtedly other problems which should be on the list, if the list were prepared by someone else.
Nevertheless, with this in mind, let's start looking at the top problems, not in any necessary order of importance.
For persons not having time to review this entire website, I have put together many of the remedies and suggestions which an attorney and his/her client should consider when trying to offset prosecutorial wrongdoing. The list is not exhaustive, and to some extent contains ideas which are somewhat novel and without significant or even any precedent. Yet, the relative novelty of the opposition makes it more effective, in some cases. These possible remedies for consideration (without any elaboration, and in no particular order) are:
Prosecutors and prosecutions are political (expressed by the term "prosecutorial discretion"), meaning that there is no law requiring that a prosecution be commenced against a specific person; whether to prosecute or not is generally within the unfettered discretion of the prosecutor. Also, the prosecutor is not required to prosecute all persons who violate the law. The prosecutor is free (under the doctrine of "prosecutorial discretion") to prosecute only such persons as selected by the prosecutor, which generally means that the rich and powerful are not prosecuted. For example, how many times during the past 50 years has the Justice Department brought an antitrust case against a large company? I can think of Microsoft recently; AT&T about 25 years ago; the Rockefeller oil companies back during 1900 or so; and a few other prosecutions, but nothing much since the Nixon era.
The basis upon which a prosecutor selects a person for prosecution is "privileged", meaning that the basis does not have to be disclosed. Frequently, the basis is pressure from a prominent person, such as a county political leader, or from the editor or publisher of a major daily newspaper, or a television or radio station, or from a friend of the prosecutor. The reason why a prosecutor selected one matter over 500 others is not considered a legitimate matter for discovery by the defendant's attorney. This secrecy should be ended, perhaps by requiring the prosecutor to keep a record of all events leading up to a prosecution, which would be available for review by defendant's counsel after the the criminal process has ended, after all appeals and motions, with a conviction. At such time, the defendant's attorney would have access to the prosecutor's record and determine if there was any basis for overturning the conviction.
The reason that prosecutors are able to convict innocent people is that there are great rewards for successful prosecutions (such as increased compensation, higher positions within the prosecuting organization, public fame leading to major political appointments, including nomination to a federal judgeship, and also fame leading to nomination and election to high political office -- all based on wrongful convictions.
Of course, any admission of wrongdoing would hurt the prosecutor's career, which is why we see such a reluctance by prosecutors and elected officials to admit that they participated in the conviction and execution of innocent persons.
There has to be a system of penalties for prosecutorial wrongdoing, but none now exists.
What kind of penalties could there be?
Various Types of Possible Penalties
An article "Institutions of Accountability to Control Endemic Corruption" by Dr. Larry Diamond, Senior Research Fellow of a United States "think tank" (Hoover Institution, at Stanford University) discusses ways to stop corruption in the institutions of foreign countries and has many good points which should be adopted as to the federal and state prosecutorial institutions in the United States. See 12/4/00 Article: Institutions of Accountability to Control Endemic Corruption
All lawyers except prosecutors are bound by the Code of Professional Responsibility promulgated by the American Bar Association, and adopted by each state in precise or altered language as rules of professional conduct to be followed by lawyers practicing law in that state.
Until recently, the U.S. Justice Department (the same persons who no longer enforce the nation's antitrust laws) had a rule which prohibited enforcement of these professional rules as to federal prosecutors. Recently, by Congressional enactment of the McDade Bill during October, 1998 (as the Citizen's Protection Act of 1998), such Justice Department rule and practice were supposedly eliminated, but the damage has been done [and continues because the Citizen's Protection Act of 1998 is being violated by the persons who choose which people to prosecute and which people not to prosecute].
Prosecutors for years have been free to, and did, violate the professional standards for lawyers which violations by defendants' attorneys routinely caused defendants' attorneys and other attorneys to be disbarred or punished otherwise. Instead, federal prosecutors are given higher positions and higher earnings when they deprive persons of their life and liberty by wrongfully taking away their civil rights and obtaining illegal convictions against them.
Actually, it seems that the Citizen's Protection Act made no difference, and business goes on as usual, with federal prosecutors doing anything that comes to mind without fear of being disciplined. This was pointed out to me by email from a reader who revealed his personal experience to me, with valuable correspondence and websites to prove his point. The websites and correspondence are as follows:
The text of the new [but ineffective] statute, 28 U.S.C. Section 530B, is available at: Text of 1998 Statute 28 USC 530B .
The same court groups which administer the bar association disciplinary rules against attorneys generally should set up a procedure for administering these rules against prosecutors working within the state, both federal and state prosecutors.
There should be vigorous enforcement of these rules against prosecutors to discourage prosecutors from committing career-enhancing prosecutions by violating the civil rights of the defendants.
A most important application of the new statute, 28 U.S.C. Section 530B, would be to have it construed to stop federal prosecutors (who are employees of the so-called Justice Department) from bribing prosecution witnesses. The federal anti-bribery statute, 18 U.S.C. Section 201, has been construed by the federal courts not to prohibit such prosecutorial bribery. Federal Anti-Bribery Statute, 18 U.S.C. Section 201
To a great extent, the nation's press is responsible for allowing the criminal justice system to routinely convict innocent persons. The term "innocent persons" refers to persons who, if they received competent legal representation and if the prosecution did not violate their rights, would not be found guilty by the trier of fact. This means that some accuseds will not be convicted because of the inability of the prosecutor to convict them fairly, under the rules of law now existing (but in some cases not being enforced to protect innocent persons from wrongful convictions).
The public as a whole knows little which is not disseminated to them by the press. To the extent that the press advocates convictions, without regard to due process, the public then adopts the same view (without realizing what they are adopting), and there is no pressure on prosecutors to be just; instead, there is this pressure by the press to convict.
When the press states that someone is convicted, most persons in the United States believe that the convicted person is guilty of the crime charged, because if he was innocent (the public reasons) he would not have been convicted. Whether a person is guilty or not of a charged crime is highly debatable, judging from the evidence given at trial, and the evidence which is not given (because of judicial mistakes in excluding the testimony, incompetence of defense counsel for not finding or offering the evidence, lack of funds for the defendant to obtain the exculatory evidence).
The public is only now coming to believe (as to capital offenses, punishable by death) that the criminal justice system is far from perfect, and that a comparatively high percentage of persons being executed is probably innocent (in the sense that the crime was not proven without prosecutorial wrongdoing).
The public has not yet come to grips with an even bigger problem, perhaps 1,000 times as large, that convictions for the lesser crimes (punishable anywhere from 1 day to life) do not have the safeguards which surround capital crimes, and that the convictions for these non-capital crimes are riddled throughout with injustices and wrongful convictions, and to a much higher extent that wrongful convictions and executions in capital cases.
Once this filters down to the public, which is now just beginning to realize that capital cases don't result in reliable convictions, the public will also realize that to a much greater extent that the vast majority of criminal convictions are probably illegal, and the whole criminal system needs a major overhaul.
The press should make this connection and delve into criminal cases of all types to show how the cases are tainted. The press can get this information from the defendant's attorney in many instances, who can tell the press some of the wrongdoing which is taking place. Of course, a lot of the misconduct goes unnoticed or is not provable, or the defendant's attorney feels unable to challenge the prosecutor's wrongdoing for fear of reprisal in other criminal cases he/she now has or will get in the future. To challenge the prosecutor might result in the attorney's future inability to cut a favorable deal with the prosecutors for other alleged criminals the attorney is representing. In other words, the corrupt process is so bad that lawyers are afraid to challenge it for fear of losing the opportunity to negotiate a plea of guilty for their innocent clients.
The press publishes virtually all of the press releases it receives from the prosecutor, and probably very little of the press releases is receives from the prosecutor's victims, even when a current prosecution is a hot, front-page story. The fact that someone is being accused of wrongdoing and is probably heading for jail (whether guilty or not) is the story, not the fact that the person may be innocent and that the prosecutors are violating the defendant's civil rights in a variety of ways. The press knows that its role is to publish truth as it is defined by the persons who speak for the government, and not to look behind the truth as announced by the prosecutor and other governmental officials.
Although the criminal defendant's attorney is not permitted to bribe witnesses (see Federal Anti-Bribery Statute, 18 U.S.C. Section 201 18 USC 201), and would be disbarred quickly if he/she did bribe a witness and was caught doing so, the same is not true for the prosecution. They are permitted and encouraged to bribe witnesses and they do this all the time.
The way it works is this.
A newly-arrested person (whether innocent or guilty) winds up in prison before the start of his/her criminal trial, and a more experienced prisoner (probably innocent, but that makes no difference) is selected as the lucky cellmate. (This selection process can be done with the connivance of the prosecutor, to achieve the result described below.)
The oldtimer, wanting to get an early release, calls up his attorney and states (falsely) that the new prisoner just confessed to him that he committed the crime for which he is charged. (It is entirely possible that the oldtimer didn't even have a conversation with the new prisoner; all the oldtimer has to say is that he did have a conversation with the new prisoner.) The oldtimer also asks his attorney to pass that bit of information on to the prosecutor, and that the oldtimer is willing to testify at the forthcoming trial in favor of the prosecution, in exchange for a reduced sentence and early release from prison for the oldtimer.
The prosecution then puts on this witness as the key witness against the defendant, fully realizing that the oldtimer is lying in order to get out of prison. The jury knows less about this early-release program for lying oldtimers (than the oldtimers, prosecutors and judges) and fails to understand that the oldtimer witness is lying to get out of jail. The oldtimer lies, the prosecutor knows the testimony is a lie, and the bribe is the early release for the oldtimer.
Testimony of this sort should be excluded. The oldtimer should be barred from getting any shortened sentence by reason of any testimony he should give, which would give little or no incentive to provide perjured testimony. In a civil case, a fact witness for the plaintiff or defense has a duty to testify without compensation (other than certain expense reimbursement). Why should a defendant in a criminal case be subjected to fact witnesses being paid with 20 years off of their sentence?
In a civil case, a lawyer would normally avoid using paid, perjured testimony for fear of being accused of bribery and having to defend himself/herself against professional charges which could lead to the loss of the attorney's license to practice law. On the other hand, federal prosecutors win their cases by bribing witnesses, with no fear of any loss of license or other sanctions; in fact, the more cases which a prosecutor can win by bribery the more successful the prosecutor becomes, and with enough successful bribes can expect to become a candidate for high political office.
A rule (part of the Federal Rules of Criminal Procedure, perhaps) or a statute should be passed which prohibits such bribery. As things stand now, various cases under federal law permit this bribery, but only when it is done by a federal prosecutor. If the same technique is used by defense counsel, he/she could be disbarred and sent to jail. Hopefully, one or more federal judges will have the issue presented to them under the October, 1998 statute 28 U.S.C. 530B, which prohibits U.S. Attorneys from doing things which defense counsel are not permitted to do (such as bribe witnesses). See discussion above, at Failure to Enforce Professional State and Local Ethics and Disciplinary Rules against Prosecutors.
This difference between the prosecutor and defense lawyer is unjustified, and results in tens of thousands of unjust convictions each year.
An Ohio Court of Appeals decision, in State of Ohio v. Berry, 1999 Ohio App. LEXIS 2983 **15-16 (10th App. Distr., Frankl. Co. 1999), without reference to and apparently without knowledge of 28 U.S.C. 530B, upholds the bribery practice by (state) prosecutors, with the following rationale (based on 1937 and 1970 U.S. Supreme Court decisions):
We have previously rejected the claim that government officials violate R.C. 2921.02(C) and DR 7-109(C) when they offer plea bargains in exchange for testimony. State v. Drake, 1998 Ohio App. LEXIS 6224 (Dec. 17, 1998), Franklin App. No. 98AP-448, unreported (1998 Opinions 5698, 5705).Courts have long recognized that statutes do not apply to the government and do not affect government rights unless the text expressly includes the government. See Nardone v. United States (1937), 302 U.S. 379, 383, 58 S. Ct. 275, 277, 82 L. Ed. 314; Ware, at 419. This rule applies where a statute would deprive the government of a recognized or established prerogative or interest, or where applying the statute against the government would lead to an absurdity. Nardone, at 277.
We conclude that the use of a witness's testimony on behalf of the prosecution in exchange for a plea agreement is an established prerogative of the state. In so concluding, we recognize the rationale set forth by the United States Court of Appeals for the Sixth Circuit in Ware. According to the court in Ware, no practice is more ingrained in our criminal justice system than the practice of the government, represented by a prosecutor, calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea agreement. 161 F.3d at 421. The court in Ware also noted that the United States Supreme Court has repeatedly upheld the plea agreement practices historically utilized in our criminal justice system. Ware, at 419, citing Brady v. United States (1970), 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747.
In the administration of criminal law, there is an army of prosecutors, assistant prosecutors, investigators, paralegals, law clerks, secretaries, researchers and others devoted to the task of convicting persons (whether they are guilty or not), having millions of dollars of public funds available to them for their prodigious effort.
Not a single person or dollar is available within the same prosecutorial juggernaut to supervise the convictions and attempt to undo them if it is perceived, subsequent to the conviction, that a person was unjustly convicted. Instead, the juggernaut is used to continue the fight and prevent the prosecutor's mistakes and wrongdoing from being discovered.
Each prosecutor's office should have a department, adequately staffed and funded, to try to detect and reverse wrongful convictions. Or, there should be an independent office to which the prosecutor's records are sent, which would review such records and determine whether there are grounds for a reversal, based upon prosecutorial abuse and misconduct.
One way to start would be to take responsibility for habeas corpus petitions away from the prosecutor and investigate charges of prosecutorial wrongdoing, instead of letting the wrongdoing prosecutor tell the same court and judge that the prosecutor did no wrong.
These habeas corpus petitions, knows as 2254 or 2255 petitions, under 28 U.S.C. Section 2254 Text of 28 USC 2254 and 28 U.S.C. Section 2255 Text of 28 USC 2255 , should not be defended by the prosecutor who prosecuted the case, at least when the petition alleges prosecutorial misconduct. The court rules under Sections 2254 and 2255 are found at: Text of Court Rules under 28 USC 2254 and Text of Court Rules under 28 USC 2255 .
There is an obvious conflict requiring reassignment. The prosecutor charged with wrongdoing has every reason in the world to cover up the wrongdoing and to tell the court that he/she committed no wrongdoing. The conflict is that the prosecutor is required to render justice (which he/she cannot do once he/she is trying to save his/her own professional life) and the prosecutor is also required to be truthful with the court, which the prosecutor cannot do, for the same reason.
Yet, all of these 2254 and 2255 petitions (to the extent claiming prosecutorial misconduct) are routinely defended by the wrongdoing prosecutor, who always claims there was no wrongdoing.
There is no better time to detect prosecutorial wrongdoing than this time, when the convicted defendant, sitting in jail for a crime for which he was wrongfully convicted, takes the time to spell out to the convicting judge the details (as far as the defendant can determine) of how he/she was unjustly convicted.
It is a miscarriage of justice and against the Code of Professional Responsibility to have the wrongdoing prosecutor fail to recuse himself/herself and let some other person in the office look into the charges of wrongdoing.
What is worse, there appears to be no review of 2254 and 2255 petitions by any group within the United States Justice Department (the employer of the federal prosecutors) to determine whether the state (2254) or federal (2255) prosecutors were committing prosecutorial crimes against the criminal defendant, and to try to stop such crimes from being committed against others.
The reason for this failure is obvious: without such prosecutorial crimes, the convictions would not be taking place, and the high rate of guilty pleas would be dramatically reduced, and the number of incarcerations, prisons and jailers would be dramatically reduced, which politicians believe would reflect adversely on their "Law and Order" political agendas.
Because it is clear that the prosecutors do not adequately or fairly supervise themselves, there is an urgent need for an organization to undertake this vital task, as part of the needed overhaul of the federal criminal prosecution system.
You would think that the defense attorneys are in a position to demand change. The truth is that they are prevented from doing this by the nature of the corrupt system.
If a defense attorney brought a prosecutor's corruption to the attention of the court, the defense attorney could expect that he would not be able to make "Fee and Plea" deals with the same prosecutor (or others in the office) as to any of the other clients he/she is defending.
This result would bankrupt the attorney, who is used to taking large sums of money from most of his clients without having to defend the client at trial. More than 95% of the federal convictions are based on guilty pleas, so that only 1 case out of 20 convictions is tried. If a criminal lawyer trying to challenge the system had to try 20 times as many cases, he/she would not have the time, and would lose substantial revenues by being unable to take any more cases. Reprisals like this are known to lawyers. For example, insurance companies which routinely refuse to settle cases will have a judge calling for immediate trial of all (meaning, hundreds) of their non-settled cases; and in union arbitration agreements, a union which threatens to appeal a decision on behalf of its "represented" union member learns quickly that the corporation, with a much larger bank account (on the order of 100,000 times as large) will retaliate by appealing every adverse arbitration decision, which would bankrupt the union.
This reasonable fear of reprisal prevents the defendant's lawyer from complaining about prosecutorial wrongdoing. What he/she would get is no cooperation from the prosecutors and extra motions and trials until the defense lawyer understood what was expected of him: Take your fee, and plead your client guilty when you cannot get any more money from your client. [This, I hope is an exaggeration; some criminal lawyers probably fail to challenge the prosecutor because they are not able to put the whole picture together and understand what illegal conduct is taking place, or that the conduct constitutes violations of various civil rights of their criminal clients.]
How can this problem be corrected?
The first thing which comes to mind is the form offered by the federal court clerk to prisoners who are preparing their own 2254 or 2255 petitions. About 90% to 95% of all 2254 and 2255 petitions are prepared by the convicted/incarcerated defendants themselves, with no help from any attorney (because in most instances the defendant is complaining about the ineffective assistance of the attorney).
The 2254/2255 form lists 10 of the most frequently-raised grounds for the prisoners to consider, including the generalized ground of ineffective assistance of counsel. But the form does not include excessive sentencing (based on facts not pleaded, or tried to the jury, or found by the jury - see the U.S. Supreme Court's recent landmark decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000)) or the broad category of prosecutorial misconduct or abuse. To read this decision, go to Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). The 2254/2255 form does list some specific types of prosecutorial misconduct or abuse (such as a coerced confession, unconstitutional search and seizure, evidence obtained pursuant to an unlawful arrest, violation of privilege against self-incrimination, and failure to disclose exculpatory evidence). But the prisoner is not told that these five listed items are only specific instances of the overall, non-mentioned, general category of prosecutorial misconduct and/or abuse. The form should be revised to list perhaps 10 to 20 additional examples of prosecutorial misconduct and abuse, and the general category of prosecutorial misconduct and abuse, for factual development by the prisoner (while sitting in prison and usually unable to obtain competent legal advice or adequate legal research facilities) in his/her 2254 or 2255 petition.
Also, the form should advise the defendant to be very specific in describing all activity by the prosecutor which makes up the alleged prosecutorial misconduct or abuse, and to include affidavits or declarations from the defendant, the defendant's trial attorney and other witnesses as support for the charges. The purpose in having evidentiary support accompanying the petition is to ensure that there is evidence in the record on which the prisoner could base an appeal if the petition is summarily denied (which occurs quite frequently) without any discovery or evidentiary hearing to put evidence into the record.
Lawyers representing The New York Times and IBM receive about $500 per hour for their work in a federal action, often with 3-4 lawyers working on the same matter at the same time together with other support personnel. Lawyers representing indigent criminal defendants in a federal criminal action are paid about $35 per hour, which is obviously and deliberately insufficient to obtain competent representation.
Even when the criminal attorney is competent, the low hourly rate is competing with other work the lawyer has which pays much higher, and the lawyer often has to decide whether to sell his/her available time to the client paying the most per hour, to to work for the low hourly rate for the indigent and turn away more profitable legal business.
Until the rate is high enough to attract competent counsel, so that they are anxious and willing to work for the rate being offered (which should be a minimum of $150 per hour, approximately), the representation of indigent defendants will be substandard, and many innocent defendants will be wrongfully convicted.
The cost of incarcerating convicted defendants is so high that it would probably be a profit center for the government to pay high fees to indigent's counsel to be able to reduce the number of convictions, and therefore the number of prisons, jailers, and the costs of food, medical, dental, clothing, transportation, health supplies, books, programs, and other items provided by the prison.
If it costs $30,000 per year to maintain a prisoner (including an allocation for the cost of building the prison cell and shared facilities), $150 per hour in legal fees for attorneys defending indigent defendants would probably result in far less of an expense to have a defendant found innocent than the cost of imprisonment if convicted, at least when the sentence is, say, 5 years or more.
The present system of preventing adequate legal representation is designed to maximize convictions and create a prison bureaucracy. What is needed instead is a level playing field, which undoubtedly would reduce the prison population by 70% to 90% over a 20-year period, and more than pay for the higher legal fees.
Also, it should be noted, that the prosecutors have been getting a free ride, being able to bring prosecutions without sufficient evidence and without merit, knowing that the defendant would be unable to probably defend against the charges. If defendants were able to get competent counsel, the prosecutor's free ride would be over, and there would be a reduction in the number of prosecutions, and a lowering of the legal fees needed to be paid to counsel for indigent defendants.
All businesses and government organizations have limiting budgets, except federal prosecutors. They have amounts available to them in direct proportion to the number of persons they accuse (since most accusations result in a conviction). When accusing a person of wrongdoing, the prosecutors are often able to seize all assets of the individual and use those assets in prosecuting the same defendant, and other defendants. A prosecutor who does not bring in this funding through prosecutions is probably not going to last as a prosecutor.
This should be corrected.
Federal prosecutors and their staff are a prepaid expense, with the prosecutors and staff working on an annual basis. Thus, there is no real outlay of money to prosecute someone. The labor is without cost, having been paid in advance. And whatever extra funds are required for prosecutions are obtained by seizures and forfeitures. What a racket! See Federal and State Forfeiture Statutes; Prosecutorial Abuse; and Discussion of What a Prosecutor's Victim Can Do to Fight Back.
To the extent they work extraordinary hours on one case to get a conviction, there is no additional expenditure of money, and review by supervisors is less able to take place.
Also, there is the problem of out-of-pocket expenses incurred by the prosecutor for such things as a grand jury proceeding, and expert witnesses.
In some cases, the prosecutor can spend $1 or more million in a prosecution, and do so against an indigent defendant, whose attorney may hope to get about $20,000 or so for the entire case.
This disproportionate expense should not be permitted.
Every prosecution should be required to report each month to the federal court the dollar value of the time spent on the case by all federal employees, including a breakdown of the types of employees involved, as well as the amount of expert fees and other expenses, so that the cost of an investigation and prosecution can be followed, and the defendant appropriately alerted and funded by the government (even out of the funds seized and confiscated, as long as that practice continues) to have a level playing field.
It is shocking to find out, but true, that a defendant on trial for his life is not given any of the discovery provided in the same courtroom when a plaintiff is suing a defendant for a broken leg or for a breach of an agreement to paint a house.
Rules 26(a)(2) and 26(b)(4) of the Federal Rules of Civil Procedure Federal Rules 26(a)(2) and 26(b)(4) Permitting Discovery of Experts in Civil Action require each party in a civil action to provide the other side with a substantial amount of information about each expert witness who is going to testify at trial, including all publications authored by the expert during the past ten years, and a list of all matters in which the expert has testified at trial or by deposition during the past four years. Also, the parties have the right to demand documents from the expert witness showing all communications between the retaining attorney and the expert witness, all documents upon which the expert relied in coming up with his opinion, all drafts of the opinion, and other relevant matters that the opposing counsel would like to see. Then, the expert has to submit to a deposition, to enable the opposing attorney to determine all the facts surrounding this expert's opinion.
By the time of trial, the opposing counsel should fully understand the basis for the expert's opinion, to be able to raise issues about the expert and his opinion at trial.
The same is not true in the criminal justice system. This disclosure through discovery initiated by the opposing counsel is not permitted. The defendant is given, shortly prior to trial, a brief summary of the expert's opinion, and is unable to find out from the expert (except at trial) how the expert came to such conclusion.
By not knowing how the expert arrived at his/her opinion, the defense attorney is often forced to plead the client guilty, because the defense lawyer does not know what the expert would answer at trial, and many lawyers say that a lawyer should not ask a question at trial to which he does not already know the answer. Accordingly, without discovery in advance of trial, the lawyer is not in a very good position to cross examine the government's expert, and the government is in too good a position, a wholly unlevel playing field. Also, bear in mind that the government through the grand jury process is able to obtain all of this information from the defendant and the defendant's experts without the defendant having the right to do the same as to the government's experts.
To make things even worse, the Federal Rules of Criminal Procedure specifically prohibit any discovery from being given when the prosecution's expert is a government employee (such as an employee of the FBI Laboratory, who is often an expert witness for the federal prosecutor).
By letter dated June 16, 2001 6/16/01 Letter to Reporter, Criminal Rules Advisory Committee, I complained about this disparity in treatment to the persons who make proposed revisions to the Federal Rules of Criminal Procedure (for adoption by others) and am hoping that a change will result, to create a more level playing field in this increasingly-important area of testimony (the expert witness). On July 1, 2001, I wrote a similar letter to U.S. Senator Leahy, with copies of the precise rules involved, hoping that he and his Senate Committee can support the needed changes. 7/1/01 Letter to U.S. Senator Leahy, Senate Judiciary Committee.
The federal Speedy Trial Act of 1974, as amended, 18 U.S.C. Section 1631, requires that the trial for a criminal defendant be commenced within 70 days of the date of the indictment or (published) complaint, otherwise the alleged criminal is to be released.
Yet, once the defendant is convicted, there is no same urgency to determine whether the conviction was unlawful, when challenged.
After the conviction, the appeal often takes 1.5 years to decide, usually by the Court of Appeals affirming the conviction below. The wrongdoing (or should I say, any wrongdoing by the prosecutor) is seldom contained in the trial record, and the higher court has no awareness of what really happened (when wrongdoing is involved).
The wrongdoing is revealed to the court, usually, only when the incarcerated defendant files a habeas corpus petition under 2254 or 2255, and the whole procedure can take about 3 years from date of conviction to date of release from prison (if the prisoner is successful), or about 1-2 years from the date of conviction if the prisoner is unsuccessful with his/her petition.
Why can't the time for determination of this petition also be set for 70 days, from the date of filing of the petition? If the preparation for the criminal trial is limited to 70 days, why isn't the preparation to oppose the petition (of wrongdoing by the prosecutor) also set for a 70-day period. There really is no reason except that the Speedy Trial Act of 1974, as amended, fails to state that a petition to undo a criminal conviction is also a criminal proceeding, and that it should be handled within 70 days, as well.
Thus, by statute or court rule, or even the individual practice policy of a federal judge, should give similar (70-day) priority to a proceeding to undo a criminal conviction. In other words, the evidentiary hearing on the defendant's motion should be commenced within 70 days from the date of filing of the 2254 or 2255 petition.
The Antiterrorism and Effect Death Penalty Act of 1996, 28 U.S.C. Section 2244, placed a limitation on the federal habeau corpus prisoner's petition (28 U.S.C. Section 2254 and 28 U.S.C. Section 2255). Prior to enactment of the Act, prisoners could file a 2254 or 2255 petition anytime they had grounds, and some did so even when they had no grounds.
To limit prisoners from making application to the court for relief, the Act was passed which states that a prisoner must make any 2254 or 2255 petition within one year from the date of final judgment in the criminal case (which means after all appeals have expired, or the right to appeal has expired). Furthermore, a prisoner is limited to one such petition, even if a second or third petition could be made within that 1-year period. There are some exceptions, however, which should be researched before deciding not to try a second petition. Also, you could consider making a motion to request the opportunity to amend an outstanding 2255 or 2254 petition, if it has not yet been decided.
The text of this limiting statute (called the Antiterrorism and Effect Death Penalty Act of 1996 to create public support for the statute which applied to all prisoners, whether terrorists or not), is at: Text of 28 USC 2244 Which Limits All Prisoners to 1-Time Use of 2254/2255
The net result is that prisoners who fail to include grounds within their first filing are forever precluded from raising the forgotten issue, no matter how important the issue would have been. Also, the prisoner is precluded from raising newly-discovered grounds in a second or third petition.
Clearly, this seems to be an unconstitutional limitation on the habeas corpus petition, which according to the U.S. Constitution can only be suspended in time of war. Otherwise, the U.S. Constitution says that a person is free to petition the court to be released from custody by asserting in a petition (called a habeas corpus petition) that he/she is being held unlawfully, and the jailer is required to explain to the court why the person is being detained. Yet, because of the Anti-Terrorist Act, we have deprived non-terrorists from being able to petition the court under the U.S. Constitution and stop what amounts to terrorist activity from being perpetrated upon them. [It should be noted that prior to enactment of the statute a judicial doctrine had already developed which precluded repeated use of the habeas corpus petition.]
Congress should amend the Anti-Terrorist Act so that the foregoing limitations (of 1-Time and 1-Year) do not apply to anyone except alleged terrorists, or some federal judges should make this determination and hold that the Act is unconstitutional, by limiting habeas corpus petitions when there is no declared war.
"Exculpatory Evidence" is any piece of paper or any statement or any physical evidence which tends to show that the defendant is not guilty of one or more of the crimes for which the defendant is charged. Exculpatory evidence can be discovered at the crime scene by investigators (such as footprints or tire prints not belonging to the victim or someone residing at the victim's place of residence); or can be obtained through statements made to investigators or to the prosecutors by witnesses or prospective witnesses, or by prospective defendants; or in the form of one or more documents subpoenaed by the prosecution from various persons or agencies.
All too often the prosecutor fails to provide the defendant's counsel with documents or statements which would tend to show that the defendant is innocent.
Some statements are only provided minutes before a prosecution witness testifies, preventing the defense from following up on the exculpatory statements contained in the belated statement.
A major problem with prosecutors intent on winning is that when following the rules governing prosecutors, such as (i) to look for the truth and prosecute only when the evidence on both sides of the issue is carefully weighed, (ii) to provide all exculpatory evidence to the defendant's counsel, (iii) to provide all such evidence on a timely basis, and (iv) not to refuse to record exculpatory statements made by witnesses knowing that such statements would have to be turned over to the defendant's attorney is recorded on paper -- the prosecutor would probably lose his case, because of the reasonable doubt that such exculpatory evidence could have in the minds of one or more of the jurors.
If nothing else, the random audit suggested in another point should focus on whether all exculpatory evidence had been accepted, and turned over to the defendant's attorney, and if only one aspect of the prosecutor's work on a case could be audited, I would urge that this is the aspect to audit. Prosecutors hide exculpatory evidence because they know that in providing such evidence to the defendant's counsel, as the prosecutor is required to do, the defendant would have a much greater chance of proving himself innocent. Prosecutors are apparently taught that they are there to win at any cost, even though they are depriving citizens and other residents of the United States the constitutional protections which the prosecutors have sworn to uphold.
"Fee and Plea" is a practice which is swamping the Federal Courts. What this means is that the defense lawyer keeps asking for more and more money from the defendant or the defendant's family, prior to trial (and possibly during the occasional trial which is started), and as soon as the defendant and his family run out of money, urge the defendant to plead guilty. Meanwhile, the defense lawyer, knowing that 19 out of 20 of his/her criminal cases are going to result in a conviction by a "Guilty Plea", even though the client may not be guilty, does not do all that needs to be done to prepare for trial, because the vast majority of his cases wind up with his/her client pleading guilty. The lawyer who gets the most and does the least for the client becomes the most financially successful criminal lawyer, because he/she retains a large part of the legal fee without doing the promised work or getting the needed experts, or conducting the needed investigation.
From the criminal lawyer's standpoint, it can be said that as long as the prosecutors are corrupt and abusive, there is very little the criminal lawyer can do without large sums of money to try to overcome the corruption and abuse, so why not take as much as you can get, and do as little as possible. How do you fight a corrupt prosecution, which refuses to accept or turn over exculpatory evidence. The defendant is not allowed discovery rights as a general matter, and the prosecution is permitted to obtain millions of dollars of discovery over a period of several years or more. How can you fight this, the criminal defense lawyer would probably say.
The criminal lawyers probably believe that to fight the system is too costly and could impact adversely on the other 18 criminal cases which he/she needs to settle through as favorable a plea arrangement as possible.
Another factor is that federal judges are appointed in far fewer numbers than the matters which are presented to them for handling, and it is generally known that federal judges tend to hand out harsh sentences for those who dare to go to trial and lose, as most of the defendants are bound to do because of the abusive and corrupt practices of the prosecutors.
In any event, regardless of the cause, what can be done about this Fee and Plea method of convicting 95% of the persons who are accused of criminal conduct, many of whom would not be convicted if the criminal system were just?
Defendants should discuss this problem with their attorney before committing to the attorney (because by giving the attorney the money requested, the defendant is preventing himself from hiring another attorney, due to lack of funds).
Defendants and their attorney should prepare a game plan with various goals, and the attorney should report every week or two on the accomplishment of the goals, or lack of accomplishment, and the defendant should be involved, to keep the lawyer on track. The defendant has got to assume responsibility in this regard because of the prevalent practice among defense attorneys not to do what needs to be done to obtain a just result. The attorneys know more than the clients, and are not telling the clients how bad the system really is, until the money supply runs out, and then the attorney can't act fast enough to convince the client to plead guilty.
Why doesn't the lawyer start off the first interview with a statement that the indictment is tantamount to your conviction because of the corruption and abuse in the criminal system, and you might as well plead guilty right away, and save yourself and your family a lot of money. By pleading guilty today you can probably get a much lower sentence, and get it over with more quickly.
The result is that we have the largest prison population, per capita, of all civilized countries, which undoubtedly is because the accusation is the conviction, without due process and without any trial. At the same time, the prosecutor's fame, compensation, power and importance shoot up, and the last thing the prosecutor wants to hear is that he/she did anything wrong, or that he has convicted hundreds of innocent persons (meaning, convicted persons who would not have been convicted under the rules of the game if the prosecutor had stayed within the rules).
Remember, the rules are designed to prevent innocent persons from going to jail, and we purposely permit some guilty persons to go free in order to ensure that innocent people are not convicted, and jailed or executed. We are obviously failing in this respect, and not only with hundreds of innocent persons being convicted or murder and being executed, for a crime they did not permit. The situation is much worse when it comes to non-capital crimes, where the press is not focussed on the illegality of the system, and in fact is a major cause of the abuses taking place through their editorial policy of advocating more heavy-handed enforcement against alleged criminals (whether they committed the crime or not).
Virtually every defense lawyer will tell you that the defendant should not testify on his/her own behalf. The reason generally given is that the prosecution will inevitably make it seem, from the defendant's own testimony, that he/she is guilty, and that the defendant should not assist the prosecutor in proving the prosecutor's case against the defendant.
Much of this advice to defendants is based upon the ability of the prosecution to go into other matters unrelated to the crime charged, and make it appear that because the defendant was convicted of bigamy, for example, for obtaining an invalid divorce and then marrying again, that the defendant is guilty of bank robbery, for example.
These rules permitting extensive cross examination of the defendant should be changed to permit testimony as to the conduct at issue, and not whether the defendant might have committed unrelated crimes or made untrue statements as to other matters. The jury should be able to hear what the defendant has to say with appropriate instructions from the judge that the defendant is an interested person (balanced by statements that you cannot necessarily trust the prosecution's witnesses whose financial success in life may well depend upon having this defendant found guilty).
In other words, there should be a new formula found to allow defendants to say what happened without subjecting them to revealing anything they ever did, or allegedly did, in life. By doing this, the jury can hear more about what happened and have more relevant information on which to base their decision.
The federal grand jury process has many faults, and needs to be overhauled to eliminate these faults, some of the importants ones of which are:
(2) General rule of secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court..
This requirement enables the prosecutors to act in secret and leave no discoverable trail for aggrieved persons and the public to hold federal prosecutors accountable for wrongdoing, unless they can somehow break the secrecy requirement. Of course, the secrecy requirement never stops prosecutors from leaking secret information to the press, particularly through formal press releases, to be able to publicize their secret proceedings and poison the jury pool. They do this all the time, which leads one to believe that there is really no need for such secrecy, because it is not kept by the prosecutors themselves, and that the secret information and proceedings should be converted into public information no later than at the end of the prosecution, to enable others (such as the courts, aggrieved persons, and the public) to audit the grand-jury process.
The purpose of bail is to ensure that a defendant appears in court, from time to time, as required by the judge. The amount of bail should be set with this in mind, not to make the bail so high that the defendant is unable to raise the money and be released on bail.
Prosecutors routinely seek excessive bail for the specific purpose of preventing the defendant from getting released from jail prior to trial, which makes it more difficult for the defendant to defend himself, and for the purpose of tying up the defendant's assets and loan sources, which makes it more difficult if not impossible for the defendant to hire an attorney.
Thus, prosecutors try to win their case by preventing the defendant from having the time, freedom and resources needed by them to defend themselves against the prosecutors' criminal charges.
This is unconstitutional and should be fought (as should many of the other unconstitutional wrongdoings directed by prosecutors against defendants and their counsel). Perhaps every prosecutor and prosecuting office should be required to maintain public records as to the name of the case and prosecutor, the amount of bail sought, the amount granted, whether bail was actually given, and if given whether the defendant failed to appear when required. These statistics would be quite useful for other defendants and their counsel to show how bail is routinely demanded and often set at excessive amounts, with the effect of depriving the defendants of their constitutional right to a fair trial through due process of law.
If you ask someone who is violating the law whether he or she is violating the law, the answer not unexpectedly is "No!" When asking policepersons and police officials whether they or any other persons in their police department are violating the rights of any citizens, you will almost always get the same answer. We expect denials, and hear them repeated in the newspapers and other news media reporting on events of possible violations of the rights of citizens.
The Justice Department lies no less than others when asked to provide testimony about the constitutionality of the prosecutorial practices of their organization. During 2000, the United States Attorney's office in the Eastern District of New York (representing the largest population of all U.S. Attorneys' Offices in the United States, including the populations of Queens, Brooklyn, Staten Island and Long Island), jointly with the Criminal Division of the Justice Department, testified before the House Judiciary Committee (looking into charges that the grand jury system needed reform) that the federal grand jury system was acting properly and not denying accuseds of any of their constitutional rights. This testimony is available with critical comments by the author of this website at House Committee on Grand Jury Reform - 2000 Testimony of U.S. Attorney's Office, EDNY.
The testimony swears to the House Judiciary Committee that the 90% rate of convictions of persons who are indicted is that indictments take place only when justified, so that a high rate of convictions is to be expected. Also, the testimony states that only 2% of the persons sought to be indicted are not indicted by the grand jury. The abuses listed in this website (which was not available at the time of such testimony) are not addressed, quite understandably.
The testimony enables "Law and Order" to conclude, as they are anxious to conclude, that the restrictions upon civil rights already approved by them are working and that more restrictions are even possible, to make sure that every criminal winds up in jail (except themselves, of course).
Unless you are a politically-pointed federal prosecutor, you have no right to initiate any federal criminal proceedings against persons who violate violate your rights or cause you other injury in violation of federal criminal law. Instead, you have to go to the office of the federal prosecutor and complain that one of their staff is violating the criminal law, which of course would cause rounds of laughter within such office, as your are being invited to leave.
There are doctrines permitting a citizen's arrest (although there is no immunity for liability to the arrested person if you are held to have wrongfully arrested such person). There should be a similar right for anyone to commence a federal criminal proceeding against anyone who is violating your rights and federal criminal law. Such a right would put a significant damper on the willingness of federal prosecutors to use unlawful tactics to win their cases.
It seems possible that a non-prosecutor with a substantial case of criminal prosecutorial conduct could file a criminal complaint against such person in the federal court for the district in which the person is a prosecutor and establish a right to commence criminal proceedings under a criminal-law equivalent to the constitutional doctrine which permits a person to file a civil action for violation of certain civil rights against federal officials without having any federal statute permitting such filing. The U.S. Supreme Court decision which permits civil rights actions (as direct constitutional actions where there is no statutory remedy) against wrongdoing federal officials is Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 416 (1971). A copy of the decision is available (without fee) at FindLaw.Com, Bivens v. Six Unknown Fedeal Narcotics Agents, 403 U.S. 388 (1971).
Two recent cases are relevant: On page 1, New York Law Journal, 9/11/01 edition, in an article entitled "No Private Right to Begin Prosecution Found", the NYLJ reports that an upstate town justice (in a very minor New York court) held People v. Kavanagh, "in what appears to be a first-impression ruling", that no such private right existed under New York law. However, this ruling does appear to be highly questionable. The NYLJ article cited several decisions from the highest New York Court, holding to the contrary: People v. Czajka, 11 N.Y.2d 253 and
The other recent relevant case is in California, involving Congressman Condit. On 8/30/01, CNBC News Transcript from Rivera Live, Rivera referred to the "admittedly extraordinary attempt to use the kind of archaic law in California that allows a private citizen to initiate a grand jury action". I have looked at some California cases and found some interesting language in one of them. This decision, United States v. Smyth, 104 F. Supp. 283, 295-299; 1952 U.S. Dist. LEXIS 4310 (N.D. Cal., South. Div. 1952), stated in part:
Under the Federal Constitution, a grand jury may either present or indict. n56 The word 'presentment' technically characterizes the process whereby a grand jury initiates an independent investigation and asks that a charge be drawn to cover the facts should they constitute a crime. n57 The authority to initiate independent investigations n58 cannot be taken away without erasing the word 'Resentment' from the fundamental law of the land. [Emphasis added]
There is in the motion to dismiss a series of specifications criticizing the receipt of 'unauthorized communications,' oral and written, by this grand jury. It is alleged with positiveness that O'Gara, a duly qualified and acting Assistant United States Attorney, who was not presently assigned to the investigation, gave to one of the grand jurors the Kefauver Committee Report, the specification prepared by Thomas Doolan, an accountant of the Income Tax Department, and notes made by the Assistant United Stated Attorney himself. It is stated O'Gara and Doolan conferred with one member of the sitting grand jury, where the Doolan specifications were turned over and the case fully discussed and notes were made by the grand juror. Other instances of communications outside of the grand jury room between the Assistant United States Attorney and members of another grand jury are mentioned. It is said these communications are unauthorized and illegal.
The sources of grand jury information are almost unlimited. n59 The grand jury are constituted for the express purpose of inquiring into and making indictment or presentment of all crimes against the United States committed in the district for which they were drawn, n60 namely, the Northern District of California. They were sworn to do just that. n61 It cannot be held that any investigation made by them for that express purpose and in accordance with that oath is or was unauthorized. n62 It has always been said that they can act of their own knowledge or on testimony which comes to them through witnesses. n63 Attempts have been made to limit that language. n64 While an indictment should not be returned based upon hearsay alone, and the courts so instruct, the calling of witnesses may be initiated in a general investigation which has no particular defendant or charge involved. n65 But, when charges were made in the press and on the sidewalks of San Francisco, can it be said to be without the knowledge of the grand jurors? Any communication to a grand juror would be unauthorized unless made by the United States Attorney according to that argument. Everyone should know that is not true. The grand jurors had a right to use rumors, hearsay, reports and even suspicion n66 in initiating an investigation, and it made no difference whether these were oral or written or whether acquired inside or outside grand jury hearings, and the persons who gave information need not have been grand jurors or witnesses or under prescribed or other oath. n67
It is true, courts often caution the grand jurors not to act upon rumor or hearsay and not to allow anyone to seek them out through malice to get an indictment. n68 The purpose of 18 U.S.C.A. Section 1504 was to prevent anyone from attempting to bring pressure upon or intimidate a grand juror by a written communication with that intent. But that section does not prohibit a grand juror from receiving a communication, written or oral. The grand jury could indict anyone for a violation of that section if the requisite elements were present. But not if they solicited a communication or indicated a willingness to receive one; then the requisite intent would not be present and there would be no crime.
The foregoing quoted language seems to provide some authority for direct complaint by a citizen to an existing grand jury, and grand jury's right to consider and act upon such information if the information has some relevance and basis.
If the District Judge dismisses the criminal action, you would then have to appeal to the appropriate Circuit Court of Appeals, and if the Court of Appeals denied your appeal, you would then have to apply to the United States Supreme Court for a writ of certiorari, which is a request by written motion for permission to appeal certain issues to the Supreme Court. The Supreme Court might well take jurisdiction of such an issue.
During March, 1997, Gary Ruskin, Director of the Congressional Accountability Project, testified before the House Ethics Reform Task Force (a House Committee investigating corruption, euphemistically called "ethics violations", among members of the House of Representatives. He concluded (see Reforms Recommended by the Congressional Accountability Project during 1997:
If you believe you or a member of your family (or a friend or associate) have/has become a victim of prosecutorial abuse or misconduct (which two words are pretty much interchangeable, you should consider consulting with a different criminal attorney (because of the probable unwillingness of your present attorney to deal with the problems) or perhaps a civil rights attorney (because we are dealing with possible violations of your constitutionally-protected rights) and then review these and other possible matters with such attorney:
Clearly, we have a growing crisis in the United States caused by the inequality of our criminal justice system, including the unlimited funding of prosecutors in comparison to the lack of funding to the impoverished defendants caught in the prosecutorial morass, who cannot afford or find competent counsel to try to offset even part of the constitutional violations which to which defendants are routinely subjected by prosecutors, and because of which prosecutors are putting away a higher percentage of the country's population than any other civilized country.
The press cannot be expected to be of much help because, upon analysis, they are the cause of many of our problems, advocating Law and Order instead of Bread and Butter, to give the public readership issues to take their minds off of their declining standard of living, and to let them focus instead on the petty wrongdoing (or alleged wrongdoing) of persons selected for prosecution by the political appointees put in charge of prosecutions, and not to focus on the corporate monopolies, conspiracies, mergers, restraints of trade, tax fraud and other devices used to separate the public from their money, which winds up making the rich richer, and the middle class poorer.
Although this is not to say that you should not waste your time trying to get the press to listen to the prosecutorial nightmare which is being visited upon guilty and non-guilty persons alike, the members of the press with whom you might be in contact do not have any First Amendment freedom to report. They could write a favorable story, find that the story will not be published (by the editors who know better than to print such material), and find themselves ready for some other type of employment.
I think that the approach would be to reach as many law professors and instructors as possible, to be able to get more directly to the "talking heads" on television who help to shape public opinion. They might be in a better position to understand the legal problems and might be able to discuss some of them in their periodic opportunities to comment on matters which television shows tend to focus on, such as the O.J. Simpson trials, or other trials. Such a milieu in fact might provide an excellent opportunity for law professors to slip in some helpful observations about the criminal prosecution system, and raise some interesting questions.
Perhaps the best approach would be to identify the committees and subcommittees of the House of Representatives and U.S. Senate, and the state legislative bodies, to try to have a public investigation started into these problems, similar to the one chaired by Sen. Leahy during July, 2000. See 7/1/01 Letter to U.S. Senator Leahy, Senate Judiciary Committee.
Also, you should consider going to various government agencies responsible for some oversight over the judicial system, including the group which suggested revision of the Federal Rules of Criminal Procedure and the group dealing with a larger judicial picture. See 6/16/01 Letter to Reporter, Criminal Rules Advisory Committee.
One of the best opportunities to change the rules would be to become active in bar association committees (which often permit members of the community who are not lawyers to be members and participate in the activities, even through voting on measures). The types of committees include: Committee on the Federal Courts; Committee on the State Courts; Committee on the Judiciary; Committee on Criminal Procedure; and Committee on Federal or State Rules (Civil or Criminal). There are undoubtedly many other committees where some of these issues would be given a hearing.
You also might want to let me know what you are doing and how effective your activities have been.
Finally, you might consider helping me market this website, as discussed immediately below.
Important Qualification: The term "Marketing" is used in the sense of bringing useful information to the attention of persons having a need for, or desiring such, information, and not with any view to commercialization of or making money from this website.
I need PAID OR VOLUNTEER HELP for carrying out my marketing plan below. I invite you to submit an indication of your interest in doing one or more of the items listed below, and an estimate of the cost (hourly rate and estimated total cost) for each.
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If you know someone who could use any of the information in this website, or should know about the website, please let him/her know. An email form is included for your convenience. [OCS please create email form here.]
I would like to have some articles researched and prepared for publication on this website. The research requires access to Lexis (or Westlaw) and Nexis (or equivalent). Law students would be in a good position to do this type of research and authorship. If you are interested, please let me know.
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This power of the grand jury springs from inherent qualities. The jurors are instruments of the people of the community. They reflect the sentiment of the particular locale- the fama publica. n49 In their character as representatives, they may call for witnesses and documents which may verify or negative the suspicions n50 or rumors of crime which affect the neighborhood. n51 In his character as witness, each may speak of those things which he himself has observed. n52 In England the private person who claimed a crime has been committed could lay an indictment before the grand jury. n53 Although private prosecutions as such have been abandoned in the country. n54 the grand jurors retain enough of this tradition that they may initiate prosecutions based on information received from persons who have no connection officially with them. n55 [emphasis added]
In general, four principal reforms are needed to restore public confidence in the ethics process:
Send ethics complaints routinely to outside counsel for investigation;
Eliminate unnecessary delays in the initial phases of the ethics process;
Eliminate barriers that prevent citizens from directly filing ethics complaints; [emphasis added] and,
Punish members who break House ethics rules.
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