Cheating Prosecutors May Face Rare Penalties As Conviction is Reversed and Justice Department to be Investigated

April 27, 2009

It is not unheard of for the prosecution to cheat, hide evidence, manufacture evidence and generally manipulate the justice system to achieve injustice.  But in the case of former United States Senator Ted Stevens Republican-Alaska, not only was the ill-gotten criminal conviction dismissed but the Judge has vowed to investigate the Justice Department.  This is rare on both counts, especially for a Judge to pursue sanctions beyond the routine tongue-lashing.

“In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” United States District Judge Emmet Sullivan said, as he spoke for 14 minutes with thinly-veiled anger.  The trial of the former Alaska Senator was held in the District of Columbia, where Judge Sullivan sits.   Judge Sullivan appointed a special prosecutor to investigate the Justice Department lawyers who prosecuted Senator Stevens.  They repeatedly withheld evidence from Senator Stevens’ lawyers during the trial.  The trial resulted in Stevens’ conviction last October for lying on federal disclosure forms about gifts and home renovations he received from wealthy friends.  The rules of federal procedure provide for the appointment of a special prosecutor for contempt investigations, but is rarely done.

Judge Sullivan, appointed Henry F. Scheulke III of Washington, D.C., to investigate contempt and obstruction by the Justice Department lawyers.  Mr. Scheulke is a former prosecutor and experienced defense attorney who oversaw a Senate Ethics Committee investigation and influence-peddling allegations in 1989 against former New York Senator Alfonse D’ Amato.  Scheulke will investigate six career lawyers with the Justice Department, including the William Welch, chief, and Brenda Morris, deputy chief of the Public Integrity Section, an elite unit that deals with official corruption.  The other lawyers to be investigated for possible criminal charges are Joseph W. Bottini, James A. Goeke, Nicholas A. Marsh and Edward P. Sullivan (no relation to Judge Sullivan or to Brendan Sullivan, attorney for Senator Stevens).

The judge said the matter was too serious to be left to an internal investigation by the Justice Department, which had dragged its feet, he said, before looking into the misconduct.  He criticized Attorney General Michael Mukasey for not responding to complaints.  The said reaction of the Justice Department was “shocking but not surprising.”  Of course, this is the usual result of charges of misconduct by the prosecution: File 13.  Nothing ever happens, the prosecutors know nothing ever happens, so what disincentive is there not to do again.  It is similar to police who manipulate evidence: they only rarely suffer any penalties for their constant corruption of the justice system.

But Judge Sullivan did not let die the wrongdoing of these prosecutors.  He called on Attorney General Eric Holder, who dismissed Senator Stevens’ conviction on April 1st in recognition of his department’s ill deeds, to retrain all prosecutors in the Justice Department.

Some observers have remarked that, notwithstanding the wrongdoing of the Justice lawyers, there was a healthy amount of evidence incriminating Senator Stevens.  These observers suggest he has not been convicted, but he really doesn’t look innocent of wrongdoing.  Senator Stevens was defeated in his Senate reelection campaign days after the guilty jury verdict in this trial.

Regardless of the guilt or innocence of this Senator or a thousand other accused citizens, if the United States Justice Department, and its elite Public Integrity Section no less, cannot carry out its work in an ethical manner, our system of justice is corrupt.

During the five-week trial, the prosecution lawyers were repeatedly forced to admit they had not turned over materials to the defense.  Judge Sullivan even said then,“How does anyone have any confidence that the Public Integrity Section has any integrity?”  But the judge overruled defense objections, as always happens, and allowed the prosecution’s tainted case to go the jury.  Not surprisingly, the jury found the Senator guilty.  However, the surprise came when Judge Sullivan then threw out the jury verdict.  The still-further surprise came when the Judge gave notice that the wrong-doing prosecutors would not just go home to cheat again in their next trial.  This time they might have to pay some penalty for wrongdoing—for a change and for the better.  It’s about time.


“Drug Arrests” and Your Fictional Constitutional Rights

April 20, 2009

Police search vehicles every day on trumped up excuses and cover their tracks later.  Who cares?  Certainly not the citizens of the United States.  The protections citizens believe they have from the Fourth Amendment concerning unreasonable search and seizure simply do not exist in reality, on the street where the uniformed police always push the envelope in the name of “fighting crime.”

A pastor in Arizona was beaten by Border Patrol agents when they insisted on searching his car at a Border Patrol checkpoint.  The pastor thought he had rights protected by the Constitution.  The Border Patrol knew otherwise because they were more powerful and they could later justify pretty much anything they did because, no matter what they do, they are “fighting crime.”

Steven Anderson, pastor of Faithful Word Baptist Church in Tempe, Arizona, was stopped by Border Patrol checkpoint 87.5 miles from the Mexican border.  He was well within the United States.  When stopped, he refused to allow a search of his rented vehicle.  He had no drugs and no other occupants in his car.  That did not stop the Border Patrol, who used a drug sniffing dog, which, the Border Patrol claims, made a “hit” on Anderson’s car, thus giving them “probable cause” to search his car for drugs. When Anderson refused to allow a search, the police broke both front  windows, immediately began using a Taser gun on him and continued to so, bashed his head into the broken glass on the car window, dragged him out and shoved him on the ground and stood on his head, regardless that he never physically resisted at all,  As blood streamed over his face, they handcuffed his hands behind his back, put him in their trailer, and the officers came in to laugh at him.  Eventually the police drove him to be given eleven stitches but took as long as possible, with stops to exchange casual chat with some fellow officers along the way, before allowing Anderson to use the rest room.  This is standard procedure, in case you don’t know.  Police officers think it’s funny to degrade arrested suspects by making them wet their pants.

Anderson says the drug dog did not bark or give any other indication, but the Border Patrol insists the dog “alerted” to drugs in the vehicle.  Of course, no drugs were found in the vehicle, and we have only the Border Patrol’s word that the dog ever made any indication.  Some have claimed in the past that police goad  drug dogs to make a sign when the police want them to.  Then, the police can just point to the dog as though the dog is some sort of scientific instrument with objective reliability as the predicate for their actions.  But in many cases, as in this case, no one can say the dog ever made any indication at all.

After arresting him, the police told the bloodied Anderson this would never have happened if he had just answered their questions when they stopped him.  Anderson called them on their story switch and said “I thought you said you searched my car because the drug dog hit on it.”

The United States Supreme Court ruled in 2000, in Indianapolis vs. Edmond that police cannot set up roadblocks with drug dogs to randomly search vehicles for drugs.   However, an earlier exception had been made for the Border Patrol.  The Court in 1976 decided United States vs. Martinez-Fuerte, there is an exception to this rule which allows Border Patrol the unique power to establish checkpoints for seeking illegal immigrants, allowing a secondary purpose of finding drugs.  Therefore, while ordinary police cannot set up a checkpoint with a drug-detecting dog within the Fourth Amendment, the Border Patrol is allowed to do so, and the Border Patrol is not required to have “probable cause” before using their drug-detecting dog on a vehicle.  Moreover, the Border Patrol is allowed to establish checkpoints up to 100 miles inside the United States.

There is another exception allowed for checkpoints that applies to ordinary police.  That is the checkpoints set up to find drunk drivers, which was allowed by Michigan Department of State Police v. Sitz, decided by the U.S. Supreme Court in 1990.

Anderson was pulled from his car by officers of the Arizona Department of Public Safety, tasered and bloodied by the glass the police broke.  He was then jailed overnight.  Certainly he is startled that the rights he thought he had, the rights talked about on television and in classrooms are trumped by the reality of armed uniformed police who are on a mission to stamp out crime, and who are given more and more leeway by the courts.

Who cares?  No one, apparently.  The United States Supreme Court has continued over the years to chisel away at the rights of citizens so as to make things easier for police to act with impunity.  The Supreme Court has even mused about eliminating the exclusionary rule, the “Fruit of the Poisonous Tree” doctrine, which requires suppression of evidence illegally obtained by the police.  You can imagine how illegal activity by police will flourish if that action is taken. The Congress has never given any indication it believes its citizens are at risk from police increasing intrusion.  It, like the press and most Americans, believes that American citizens are at risk from “crime,” not from the crime chasers.

Only the Bill of Rights limits the use of government power.  Police naturally push the boundaries of the permitted use of government power- always.  They think they are doing their jobs by impinging on the right of citizens whenever a criminal case might be made.  Once in a while police officers are caught red-handed lying, trumping up evidence or the like, just to make a case against a suspect the police “believes” really has it coming.  This corruption in the system is inherent where the word of police is taken and rarely can be challenged factually.  The more slack leash the United States Supreme Court gives them, the police will be able to make a few more criminal cases stick, of course, but the more diminished will be the rights of the American citizen.  The Bill of Rights becomes just a wall ornament.


Criminal Legal Cases and Other Categories as Reported by Judicial business of the United States for 2008

April 9, 2009

The Statistics Division, Office of Judges Programs, Administrative Office of the U.S. Courts has published its annual report.  The report is 431 pages and covers all U.S. Courts of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts.

Filings of cases in the U.S. Courts of Appeals, were up 4.6 %, in the U.S. District Courts up 3.8 % for civil cases and 3.6% for criminal cases, and in the U.S. Bankruptcy Courts up 30.2% from the year 2007.  Terminated cases in the three categories were similar to the increases in filings, except that they were 12.8 %.in Bankruptcy courts.

The case load for U.S. Courts of Appeals remained approximately at its same level since 2004.  Cases handled per panel were 1,068, almost the same as in 2007, and very close to the same level as in the years back to 2004.  Courts of Appeals have about 53,071 cases pending, about the same numbers as past years, and this despite terminating 59,096 cases in 2008, a fairly average number.

These appeals came from the District Courts in criminal cases (13,667 cases, up 3.8 %) and civil (31,454, up 3.8 %, which includes prisoner petitions of 16,853, up 8.9%), Bankruptcy Courts (773, down 8.5%), and Administrative Agencies (11,583 cases, up 11.6 %)

The U.S. District Courts carried 394 cases per judgeship (cases per authorized judge), a 3.7% increase over 2007.  The District Courts handled 267,257 cases, which included 54,786 prisoner petitions and 68,171 personal injury cases. The District Courts terminated 234,571 for the year 2008 (a decrease of 2.1%) and left pending 298,129 cases (a 12.3 % increase over 2007).

These cases in District Court are further broken down into those with the United States as plaintiff (9,649 cases, a 0.9% over 2007), those with the United States as defendant (34,515 cases, down 3.9% from 2007), those with a federal question (134,582, down 3.5%), and diversity of citizenship (88,457, up 21.8 %).

Cases with the United States as plaintiff include immigration cases, and that category increased in 2008 by 27. % to 21,313 cases with the a 26% increase in the number of immigrant defendants to 22,658.  The charge of improper reentry counted for 73 percent of all immigration cases and 69% of all immigrant defendants.  Seventy-two percent of all immigration cases were filed in the five southwestern border federal court districts: the District of Arizona, Southern District of California, District of New Mexico, Southern District of Texas and Western District of Texas.

Overall, therefore, it is evident that while significant increases of litigation for bankruptcies and immigration occurred in 2008, other areas such as criminal cases had only a slight increase. Consequently, the constant indications in the news media that we’re experiencing a skyrocketing increase in criminal cases is not founded in fact.


Sex Crimes and Sex Offender Registration Requirements in 2009

April 5, 2009

When the federal government stepped into the sex registration business, it doubled the number of Oklahoma’s sex offenders who must register for life. In 2007, Oklahoma adopted a classification system to comply with the federal Adam Walsh Act., more formally known as the Adam Walsh Child Protection and Safety Act. Adam Walsh, of course, is the murdered son of John Walsh, creator of the television show, “America’s Most Wanted.” Since his young son was kidnaped and murdered in 1981, John Walsh has been a leading advocate to increase punishment and monitoring of sex offenders. He helped found the National Center for Missing and Exploited Children.

In 2007, Oklahoma adopted a new three-tier system of registration for those living in Oklahoma who have been convicted of a sex offense. The intent of the system is to prevent any re-offending by those registered. Failure to register is punishable by prison time.

But critics point out that the registration system assumes every person is the worst possible offender. They say the system uses a sledge hammer to crush a flea. Oklahoma has about 6,000 registered sex offenders. Of these, 5,026 are required for life. Another 228 of them are required to register only for 25 years, and in the lowest tier, 840 registrants in tier one are required to register for only 15 years. Those required to register for life have been classified as aggravated or habitual.

This three-tier system did not exist before 2007. The new law required the state to evaluate and reevaluate every sex offender for placement in the new classification system. While only 40% of the total registration population used to be assigned to the aggravated or habitual category, now more than 80% are in that category, earning the requirement for lifetime registration.

The classifications are determined by a committee comprised of prosecutors, counselors and “victim advocates.”. It is rumored that no one wants to be the one on the committee who appears “soft’ on classifications, perhaps out of fear that the committee might classify someone in a lower category and then that person re-offend. It’s always safer to classify everyone in the maximum category, especially when the only ones who might complain are sex offenders, no big voting block.

However, Randy Lopp, head of the Oklahoma Coalition for Sex Offender Management, says offenders should be classified according to their risk level rather than their offense of record, as they are now. He says “accepted research” in the field indicates that seventy-five percent of sexual offenders are not re-arrested in a fifteen-year period.

An even more understanding approach is offered by Richard Kishur, Ph.D., an Oklahoma City counselor who specializes in treating sex offenders. He suggests that ideally sex offenders should be evaluated before they are sentenced to determine if they are a risk to re-offend. This assumes that such evaluation can be accurately done, and Dr. Kishur and other experts would say it can be. This approach would allow important resources to be aimed at those few individuals who are a significant risk to society, persons from whom society needs protection, while allowing other sex offenders to live their lives without such maximum, unnecessary intrusion as now required by life registration.

For instance, doesn’t it seem overly harsh to require lifetime registration for an individual who, when somewhat inebriated, urinated against the side of his truck, while being seen by some women? When someone is required to register as a sex offender, they are governed by many restrictions, such as where he can live. Furthermore, there are reports of family members of the convicted sex offender having authorities periodically show up at their homes, barge into the home without providing any information identifying themselves, and proceed to look through the entire home to make sure the “sex offender” is not living there (in a restricted neighborhood). This kind of situation where even relatives are harassed points out the potential dangers of a system that assigns never ending penalties for minor offenses.

For all of these reasons, even a relatively minor sex charge can cause severe repercussions for an individual and therefore, it’s critical someone charged with a sex offense seek an experienced and competent criminal defense lawyer. My site at http://www.oklahomacriminallawoffice.com provides advice on how to choose the right criminal attorney to protect your rights and I encourage you to visit it for more information on this important consideration.