Ending Legal Impoverishment

In a previous post, I wrote about the shameful, but ubiquitous, use of impoverishment by the federal government in prosecuting people. It is one of several obviously harmful practices that have taken over the system of criminal justice in the USA. Let’s put this into perspective.

The U.S. federal government is the most powerful entity in the world. The resources of any individual are negligible compared to those of the federal government. In America, we should be most protective of our individual liberties when facing the situation of the federal government wielding its enormous powers against a private citizen.

So let’s start with the basic concept that, in the USA, an accused person is presumed innocent until proved guilty. Therefore, an accusation (meaning an indictment in criminal cases) is not proof of anything — it is merely an accusation, nothing more. An indicted person is completely innocent and should be so treated until the Feds prove their accusations at trial. An accused person should not be punished prior to trial or have his ability to defend himself impeded in any way.

So, here is my proposal:

1. Abolish the ability of the federal government to seize the assets of an accused person. An accusation is not proof of anything — the accused person is innocent — his assets belong to him unless/until the Feds win a conviction. An alternative solution, if it is impossible to achieve the complete elimination of asset seizure, is to make the Feds pay a penalty for seizure of assets when the defendant is acquitted — the penalty must be large — I propose that the Feds reimburse the acquitted defendant by paying a penalty equal to at least four times the value of the improperly seized assets.

2. Make the accuser, the federal government, bear the full cost of the defendant’s legal costs as they are incurred. Only if the Feds win a conviction against the defendant must the defendant reimburse the Feds for the legal costs of his defense, and then, only that portion of the costs associated with the convicted counts — a defendant does not reimburse the Feds for the legal costs associated with acquitted or hung counts. In addition, the government must pay a penalty on counts that are acquitted — again, the penalty must be large — I propose that the Feds pay the defendant at least four times the legal expenses associated with the defense against the acquitted counts. If a defendant is exonerated on all counts, I would add an additional penalty of substantial damages for false prosecution.

I am not proposing these steps for private suits (although that situation needs reform also) — I am dealing here only with the situation of the state prosecuting private citizens — this is the scenario in which we need to be most aggressive in defending the rights of the individual. The implementation of these reforms would begin to re-introduce balance into a criminal justice system that is now stacked in favor of federal prosecutors:

* It would finally begin to penalize the ubiquitous practice of over-charging in which the Feds heap counts on defendants at will in order to increase their plea bargaining and trial advantages.
* It would mean that Feds could not seize assets to deprive defendants of the ability to hire good lawyers and to rebut charges.
* It would decrease the overwhelming leverage that Feds have in coercing plea deals.
* It would encourage defendants to exercise their Constitutional right to defend themselves at trial rather than yield to plea bargaining pressure.
* It would mean that all defendants have the financial means to defend themselves and to go to trial.
* It would mean that defendants who win would not be financially impoverished by the false indictments.
* It would encourage prosecutors to be responsible and conscientious in their prosecution decisions.

No, I am not optimistic that these reforms will be adopted any time soon. We seem to live in a time of acceptance (even broad encouragement) of intrusive government. But I can always press for change and hope that the act of highlighting solutions, along with the problems, will help clarify the issues so that more people become informed and involved in pushing reforms.

Legal Impoverishment

The impoverishment of defendants is a basic strategy of federal prosecutors. Prosecutors use impoverishment as a means to cripple the ability of an accused person to defend himself. This, of course, gives the prosecutors a huge built-in advantage over the defendant in plea bargaining and in trial preparation.

First, the prosecutors seize as much of a defendant’s assets as they can get away with, including the defendant’s life savings — this is money not available to the defendant to fund his defense. Then, they force a defendant into the incredibly expensive task of trying to defend himself against the wealthiest entity in the world, the U.S. federal government. As one Enron defendant told me:

“Fighting the federal government cannot be done halfway. To have any chance at all of defending yourself, you must decide that you are willing to put everything on the line, including everything you have earned over your lifetime. You must do this because you know you are fighting an organization without a conscience which wants only to win, and it will do anything it can get away with to beat you. Guilt or innocence, right or wrong, justice, the facts … these are of no concern to federal prosecutors after an indictment has been brought — they only want your scalp.”

A defendant knows that, if he actually exercises his Constitutional right to defend himself, he is likely to lose most or all of his life savings — this is true whether the defendant wins or loses at trial or in the appeals court. As I wrote in an earlier post, “being a prosecutor means never having to say you’re sorry.”

Is it any wonder that trial by jury is so rare? It should be a national embarrassment that 97% of all federal cases pursued by the Department of Justice (DOJ) last year were resolved by guilty pleas, not by trials. In the American system of justice, a defendant must be bold, almost to the point of rashness, to try to defend himself at trial — just getting to trial is likely to impoverish his family. A plea bargain deal is simply good economics for most defendants — pleading guilty of some crime is usually the best practical decision for a defendant, even when he is innocent.

Let me give you three examples of the Feds’ use of impoverishment in the Enron Broadband Services (EBS) cases.

Michael Krautz, an accounting executive at EBS, was acquitted of all charges after two trials. Michael not only lost his savings, but he also went into debt defending himself — and when he was exonerated, he was still in debt.

Scott Yeager, a marketing executive, won acquittals at trial and then was re-indicted by the Feds and threatened with a second trial. Scott eventually had all charges dismissed based on an appeals victory at the Supreme Court. However, even in “victory”, Scott could not recover his life savings, most of which were lost in his defense.

Rex Shelby, a software engineering executive, also won acquittals at trial and then was re-indicted by the Feds and threatened with a second trial. Rex was ready and eager to go to trial, but exhausted all his life savings and could not afford the expense of a second trial. He entered into an obviously contrived plea deal — the deal itself was favorable to Rex. However, the tragedy of this example is that Rex wanted to go to trial to exonerate himself, but had been so impoverished by the Feds that he could not afford to do so.

These EBS examples are not rare — just about any attorney can give you lots of additional examples. Clearly, the strategy of impoverishment has served the federal government well, but has done so at the expense of justice and fairness.

Impoverishment is an extra-legal practice that needs to end. I will follow this post up with another post in which I propose some reforms for ending the practice of impoverishment.

Don’t Mess With Texas’ F’d Up Judicial System

A Texas murder case demonstrates how utterly fallible prosecutors are. And how strange Texas justice is.

Fredda Susie Mowbray was convicted in 1988 of shooting her husband; she claims she was in bed with him and he shot himself. Whatever the truth is, she sounds like a real loudmouth. During her trial, she’d often yell at the media people, screaming that there was prosecutorial misconduct and that was the real story. (I am often amused that those in power try to paint outspokenness as a lack of manners; it’s just so rude to scream so loudly that you’re innocent!) Then somehow – and the circumstances of this remain unclear to even the Cameron County District Attorney’s office – a certain audio tape came into Ms. Mowbray’s possession. Joe Alvarado was an investigator with a history of suicidal depression. One evening he called an assistant District Attorney and threatened suicide. He claimed that he had perjured himself repeatedly in a 1991 case against several young people who were convicted of murdering two young people (one of whom was only thirteen years old.) The confession was somehow taped and somehow wended itself to Ms. Mowbray’s greedy hands. (It is important to note Joe Alvarado did actually kill himself later.)

Ms. Mowbray then attempted to blackmail the District Attorney’s office, threatening to release the tape to the media if they didn’t argue for her clemency. But Ms. Mowbray was not stupid; she also sent the tapes to the attorneys of the men who were convicted based partially on Mr. Alvarado’s perjured testimony.

The District Attorney’s office did not support Ms. Mowbray’s demand for clemency.

Rogelio Cannady, one of the men convicted for the murder of the two young people, claimed to be innocent. He was sentenced to two life sentences. But while in prison, he killed a fellow inmate (he claims it was self defense because the inmate was attempting to rape him.) For this crime he was sentenced to death. While on Death Row, he got the tape of Joe Alvarado admitting to perjuring himself in Cannady’s trial.

But that didn’t really matter. Mr. Alvarado was not under oath when he made that confession and it was probably illegal to tape that conversation. Cannady was not given a new trial based on the information, and in May 2010, he was executed.

I don’t really care that he was executed for the crime of killing another inmate; that was very clear cut, he admitted to it, and it was a brutal crime – overkill even. So one can argue that he got what he deserved.

However, I’m very bothered by the fact that a suicidal investigator was working on cases, and that he admitted to lying on the stand. I don’t know Cannady’s case intimately so I have no idea how much weight the jury gave to Alvarado’s testimony or if it would have made a difference if he’d not testified at all. But what bothers me is that there was no investigation into this case. The District Attorney’s office said it would bring in an independent investigator, but I’ve found no indication that it actually did so.

Furthermore, another investigator pleaded guilty to accepting cash to dismiss dozens of other cases, and the secretary of the District Attorney himself was also under investigation for accepting cash to make cases go away.

The problem is not that Texas is a crazy place where the authorities believe they can get away with anything (though that is certainly true). The problem, instead, is that anyone with power is tempted to play with it – that means ALL prosecutors, everywhere are susceptible to these kinds of lapses in judgement. In your job it probably doesn’t matter very much. But when you’re in the business of sending people away forever, or killing them, we should demand a much higher moral standard.

Another Prosecutorial Overreach

Check this out.

This is yet another action by the federal government that should frighten people. Just as the federal government used the financial “crisis” to expand the reach of the government, now the Feds are seizing on the opportunity of a defendant who everyone hates to expand its reach. I now find myself in the horrible position of having to root for a hated defendant in order to ensure that future innocent defendants are not snagged under the ridiculous precedent the DOJ is hoping to foist on us.

This is yet another example of the federal government trying to warp a law to take authority away from the states and the private individual. If I were Loughner’s attorney, I would immediately file a motion for dismissal of all counts on constitutional grounds — this is one that needs to go to the SCOTUS.

What is maddening is that the Feds have Loughner on three counts of murder. By putting their thirst for federal power above their responsibility to seek justice, the Feds are doing a horrible disservice, not just to Loughner’s victims, but to the rights of all Americans.

Ungagged.net Tells The Other Side of the Enron Story

[This is a press release I received (not from Beth, by the way.) I am ardently supportive of this project and hope you'll check out Ungagged.net.]

Diogenes’ Lantern Productions today announced the launch of the webumentary, Ungagged.net, The Other Side of the Enron Story. The website, Ungagged.net documents prosecutorially-abusive tactics used by the prosecutors and FBI agents who worked on the Enron-related cases. The tactics are exposed in order to educate viewers about the potential threat of prosecutorial abuse on a broader level.

Ungagged.net is comprised of short modules of documentary-style content, organized into two main categories: ‘What It Was Like to Be on The Other Side of the Enron Story’ and ‘Behind the Scenes of The Other Side of the Enron Story.’ Users can watch the 400+ modules in any order. The webumentary currently features 11 relatives of defendants, attorneys, former Enron executives and employees telling their stories about what they witnessed, or experienced personally at the hands of the Enron Task Force. Additionally, six subject matter experts in economics, political science, finance, UK law, and civil liberties explain why these stories are important to all Americans and, potentially, to all Brits (since the UK is considering the adoption of the U.S. plea bargaining system).

‘The Federal Criminal Justice System has become a crude conviction machine, rather than an instrument of justice and I thought then, as I think now, that the Enron case is a good example of that phenomenon,’ said Harvey Silverglate, renowned civil liberties attorney and author of the book Three Felonies a Day – How the Feds Target the Innocent. ‘There is something really rotten about the Enron prosecution scheme. People should understand that if you look at the Enron cases and you see people who were put in prison for doing things that are not clearly illegal, or may not be illegal at all, then you have to worry that it is going to happen to you tomorrow.’

‘People do not understand what actually goes on in court and how bad it can get, in particular, how bad the plea bargain system can get,’ said Mike Ramsey, an eminent criminal defense attorney who represented Enron CEO Kenneth Lay, and who is featured prominently on the site. ‘Everybody wants to believe that the United States’ system of justice is fair. And that’s a shame. We need more light.’

The webumentary was produced by Diogenes’ Lantern Productions (DLP). DLP’s mission is to shine a light in injustice, in the hope of generating reforms of the justice system. DLP founder Beth Stier, a former Enron vendor who, herself, was treated aggressively by the Enron Task Force, is the sole funding source for Ungagged.net – The Other Side of the Enron Story. No one who appears on the website and none of the defendants or attorneys related to the Enron-related trials contributed to funding the webumentary. ‘After watching what the Enron Task Force did to former Enron employees and their families, I felt disillusioned by the U.S. Justice System; it is not keeping its promise to the citizens of America. Our rights may be diminishing, but we still have the right to voice objections and educate one another. That’s the purpose of this webumentary – to generate discussion, so that we can begin to fix the system.’

Media Contact:
Diogenes’ Lantern Productions, LLC
Beth Stier
713-446-4424

Andy Fastow, Release Dates, and RDAP

I thought it would be useful to discuss RDAP and release dates.

RELEASE DATES

Andy Fastow’s release date is 12/17/2011. This date has good behavior already factored in. The way BoP works it, (it doesn’t always work out this way, but usually) is they enter people into RDAP (Residential Drug Abuse Program) based on their release date such that they finish RDAP just in time to go to the halfway house. RDAP participants are required to do 6 months at a halfway house (part of that can be home confinement; up to 10% of your incarceration can be spent at home. In Andy’s case, probably 4-5 months). So, assuming Andy gets the maximum 1 year off for RDAP participation, that will make his release date 12/17/2010. Subtract 6 months from that and he could be going to the halfway house as early as 6/17/2010. This is the absolute best he could do. RDAP takes 9 months – you have to do the full 9 months – therefore for Andy to hit the 6/17/09 date he would have needed to start his RDAP class by 9/17/09. So notice he was nearly finished with the program; he had only three months to go when the DOJ finessed his exit.

BoP does not make mistakes or adjustments that EVER let someone out early (they make plenty of mistakes that delay release dates).

Also, there is sometimes a waiting list for a halfway house. This doesn’t reduce the time an RDAP person spends there. For instance, Andy may have had to wait past 6/17/10 for a bed and would still have to spend 6 months in the halfway house.

RDAP

Residential Drug Abuse Program is intended to be an intense drug treatment program. All RDAP participants live in the same housing unit. You go to class 3 hours/day, 5 days/week for 9 months. It is called the 500 hour program because you have to complete 500 hours of classwork to complete the program. It is not really “intense”. Like most BOP employees, the instructors are either lazy losers or psycho nut jobs. Laziness guarantees you’ll have little to do.

Plus, the BOP gets around $4,000 for each inmate that finishes RDAP, so it is almost impossible not to get through. The only people who don’t make it through are the ones that test positive for drugs. At BOP it is all about the money.

Andy Fastow’s Fate

When you consider the dual issues at play (DOJ wants to look good, BOP wants to make money), you see why there would be some inside baseball. I’ve never pretended to be a fan of Andy Fastow, but I don’t like him (or anyone else) being used by the DOJ to score political points. The DOJ bringing pressure on the BOP to withdraw Fastow is a chilling sign of things to come as they attempt to salvage what was clearly an overreach in the Enron prosecutions.

It will be interesting to see if Andy gets his time off for good behavior. I’ll keep an eye out for that.

I will also watch for Andy to start retracting some of his statements now that the DOJ has screwed him over.

99.6%

These are the grim statistics: if you are indicted, you have a 99% chance of seeing prison.
96% of all criminal cases are settled with plea deals.
1% of those that go to trial end in an acquittal.

My question is: is anyone right 99% of the time? (The actual statistic is 99.6%) Are prosecutors really right that often? If so, why is there so much inconsistent, illogical, and flat-out wrongness everywhere else in government?