Who’s Protecting the Accused from Government Erasing Evidence?

October 22, 2008

The state and federal governments in their many prosecutions have been caught breaking the rules. One of their favorite rules to break is one that can win them a conviction that should not be. Prosecutors like to hide or destroy evidence that would help acquit the accused. It seems natural that would naturally be the evidence they would want to keep away from the jury, but that is one of the biggest no-nos in the criminal justice system.

The prosecution is not supposed to put innocent people in jail. More strongly, the prosecution is not supposed to knowingly put innocent, or people of questionable guilt, in jail. That is why there are rules against it. Oklahoma City chemist Joyce Gilcrest put more than a dozen innocent men on death row. Isn’t that horrifying? Not to prosecutors.

Now the United States Government has done it again. In trying to trap one of the biggest possible fishes, a sitting United States Senator, the Department of Justice has gotten caught erasing evidence. In the trial of Alaska Senator Ted Stevens, the government prosecutors redacted (blacked out) information from FBI notes about an interview of witness Bill Allen. The Senator’s immediately demanded dismissal of all charges based on the government’s misconduct.

The trial judge, U.S. District Court Judge Emmet Sullivan, declined to dismiss, of course. The government rarely pays for its errors, and that is likely why such dirty tricks continue on both the state and federal level. The judge chastised the government severely, of course, but the government’s case stayed alive. The judge also ordered the original versions of all the other witness interviews associated with the case to be sure nothing else has been redacted. The defense will need four days to go through all that material.

The redacted notes are from interviews of Bill Allen, the government’s star witness against Senator Stevens. The defense had originally received only the redacted notes, and the defense says the new information, that which was redacted, directly contradicts Allen’s testimony earlier, namely that Senator Stevens never paid for any of the renovations to his home.

The newly revealed notes show Bill Allen told the FBI he did not send a bill to Stevens for the improvements to Stevens’ home, despite Stevens’ requests for an invoice, because Allen thought Stevens would pay the bill if sent one. Allen did not want Stevens to pay. This is the heart of the government’s case.

The trial judge was particularly troubled because someone for the government deliberately covered up this evidence. Referring to the section of the FBI that has investigated and brought the case to trial, Judge Sullivan asked, “How does anyone have any confidence that the Public Integrity Section has any integrity? I don’t have that confidence.”

Senator Stevens is accused of accepting gifts totaling $250,000, including the free improvements to his home, and failing to disclosed them on the Senator’s annual Senate financial disclosure form.

“The trial is broken,” Robert Cary, one of Stevens’ attorneys said in asking the judge to declare a mistrial. However, in overruling the motion, the judge noted that much of the trial, including the cross examination of Bill Allen, had not yet taken place, so the defense could still use this ammunition in the trial. The defense countered that this new information changed their whole theory of the case, all the presentation of the case from the start, including opening statements.

Prosecutors are charged with the ethical duty, not only of prosecuting the guilty, but of seeking justice. This includes not prosecuting people they know or strongly suspect are innocent. The best known court decision on this point is Brady vs.Maryland , a U.S. Supreme Court decision in 1963. Most prosecutors keep that in mind and stay above board, even if it means they will lose a case. That is the professional way. But it still happens too often that prosecutors do get caught hiding or destroying evidence. It continues to happen partly because of the competitive nature of prosecution, but also because the penalties are so light when they do get caught. If the penalties were truly heavy for such conduct, if the judges really had the courage to punish such behavior, prosecutors would be less willing to cheat.

Unfortunately, this leaves the accused in the position of fighting against unfair odds, and the need for an experienced, talented lawyer is absolutely essential. For someone facing a criminal charge I’ve provided  educational information on my site at  http://www.oklahomacriminallawoffice.com to help you  make critical decisions and I invite you to educate yourself to protect your rights.


Is the FBI Taking Away More Rights from Citizens and Becoming “Big Brother”?

October 17, 2008

The Attorney General of the United States has just released new guidelines governing FBI investigations. Attorney General Michael Mukasey signed the guidelines, which replace existing guidelines for five types of investigations: general criminal, national security, foreign intelligence, civil disorders and demonstrations. Immediately, the American Civil Liberties Union criticized the Department of Justice and the Federal Bureau of Investigation for ignoring calls for more, not less, protection for Americans’ rights, citing both the FBI’s and Department of Justice’s records of internal abuses.

The new guidelines reduce standards required to begin “assessments”, that is precursors to investigations, for conducting surveillance and gathering evidence. Thus the threshold to begin investigations across the board will be lowered. Further, the new guidelines allow the FBI to use a person’s race or ethnic background as a factor in opening an investigation.

The Executive Director of the ACLU, Anthony D. Romero, said: “The new guidelines provide no safeguards against the FBI’s improperly using race and religion as grounds for suspicion. They also fail to sufficiently prevent the government from infiltrating groups whose view points it doesn’t like. The FBI has shown time and time again that it is incapable of policing itself and there is good reason to believe that these guidelines will lead to more abuse.”

In the 1970’s, the FBI adopted internal guidelines after investigations revealed widespread abuses and violations of constitutional rights by the FBI, including the clearly politically-motivated spying on public figures like Martin Luther King, Jr. Those guidelines governed very different types of investigations, and tearing down the walls between those different types of investigations, as the new guidelines do, means the new powers will be applied in new types of investigations where they never were before. Of course, the FBI claims the new guidelines would not give agents new authority.

The Washington office of the ACLU was quoted as saying: “It is naive to think these guidelines will not result in abuse….the DOJ and FBI…are only doomed to repeat the abuses of the past…the FBI will be given carte blanche to begin surveillance without factual evidence. The standard of suspicion is so low that the predicate for investigations so flimsy that it’s inevitable we will all become suspects.”

The FBI is focusing only on “the threat”, meaning the targets of their investigations. The FBI always wants more power to use against the bad guys, and there are always bad guys to get. There is always some excuse de jour for unleashing law enforcement’s powers. They forget that this is the very danger foreseen by our Founding Fathers, the danger to citizens from an overly-muscled law enforcement. Our Founding Fathers knew that a greater danger to citizens than criminals was from police without restraints.

Law enforcement will always continue to push, to find excuses in this and that particular, discover some excuse to suspend or diminish another small area of citizen protection until the protections of the Constitution will be whittled away little by little until gone. If we cannot keep government restraints, we cannot preserve our Constitution. Yes, the issue is about good guys vs. bad guys. But the long term, more fundamental issue is permitting some bad guys to get away, as they inevitably will, so that we preserve restraints on the police. The only sure way to get all the bad guys is to turn the United States into Nazi Germany. That was a very efficient government with absolutely no restraints to stand in the way of law enforcement.


Another Innocent Man Convicted

October 7, 2008

Darryl Burton was convicted in 1985 of capital murder and sentenced to life imprisonment without possibility of parole for 50 years. Two weeks ago, he was released from the Jefferson Correctional Center in Missouri. He was released after a judge ruled his 1984 trial was constitutionally flawed.

Burton said he hopes his case will convince the public that this country is jailing innocent people. “I come to prison thinking that is an isolated incident, I’m the only person this has ever happened to,” Burton said. “I thought, justice just don’t goof up like this, not in American justice, or what I term American injustice. But it does happen in more cases than we know.” Burton said he believes there are thousands of other innocent people in U.S. prisons.

Burton, of St. Louis, now 46 years old, was convicted despite the lack of physical evidence or any motive tying him to the fatal gas station shooting in St. Louis in 1984. He was convicted solely on the testimony of two men who claimed they saw the shooting.

One of these witnesses, Claudex Simmons, lied during Burton’s trial, having testified that Simmons had been convicted of a crime only one time. The truth about Simmons’ criminal record was that he had been convicted of at least seven felonies and five misdemeanors. For that reason, for failure to disclosed Simmons’s complete criminal history to the jury, Cole County Circuit Judge Richard G. Callahan ruled that Burton’s conviction was a violation of due process of law, as guaranteed by the U. S. Constitution. In that ruling, Judge Cole gave the prosecution 15 days within which to decide whether to put Burton on trial again. Burton was released when the prosecutors in St. Louis decided not to try Burton again.

When informed of Burton’s release, the warden told Burton the news in person and offered to have Burton driven back to his home in St. Louis. “I told him I’d walk to St. Louis if what you’re saying is for real. It was just surreal. You wait on these days, you wait and wonder and see other cases on the news. For me, I just said ‘my day will come,’” Burton said.

His attorneys and a clergyman who had befriended him drove him to his family in St. Louis. Attorney Cheryl Pilate joined Burton in hoping the case would point out the difficulty of exonerating innocent inmates. Many wrongful convictions are won on ‘snitch’ evidence from criminals seeking deals and weak eyewitness evidence, she said. “His story is dramatic yet all too common,” Pilate said. “There are hundreds if not thousands of people just like him still sitting in prison.”

Burton maintained his innocence from the beginning. He tried to get help. He wrote an estimated 600 to 700 letters and filed numerous appeals on his own. In 2000, his attorneys began working on the case with the help of Centurion Ministries, a national organization that provided investigators and money to help exonerate Burton.

Burton said he is not bitter but said prosecutors should not be allowed to offer “snitches’ deals for testimony. “The system we have in arguably the best country on Earth is locking up its citizens because someone wants to get a conviction,” Burton said. “It becomes a game. And you’re dealing with people’s lives…We can do better than what we have done with our system of justice. We have to.”

This situation definitely points out the inherent problems with informant testimony and certainly a need for vigorous legal defense from an experienced and competent criminal defense lawyer. There are many issues to be concerned with when someone is charged with a crime, which is why I invite anyone in that position to visit my website at http://www.oklahomacriminallawoffice.com to learn all they can to protect their rights.