Friday, December 05, 2014


"In asking Eric Holder to investigate Eric Holder, Obama illustrated the difficulty of adequately addressing prosecutorial misconduct as well as anyone possibly could"

I tried to watch a documentary on Netflix called Whitey recently.  It was supposedly the story of Whitey Bulger, who ran crime in Boston for about 30 years, but mostly it was the Defense team's case and lots of conspiracy theories about the FBI, so I gave up about halfway through.
But the story of Whitey Bulger is a disturbing and interesting one.  A rising thug in the Boston mob, he used informing on rivals and competitors in the criminal world to systematically destroy anything between him and absolute control.
He maintained his position by giving the FBI credible victories over organized crime that didn't hurt his earnings or mob, but took out trouble makers and rivals.  And from testimony and documentation at the trial it appears that the FBI protected him because he was a useful informant.
Further, he was given immunity repeatedly by the FBI in exchange for information leading to arrests, particularly of people in Bulger's way on the path to power.  And this brings up a problem that I think nearly everyone complains about in the modern justice system: the plea bargain.
Conrad Black writes in the National Review:
Eight to 10 percent of federal and state cases are dismissed because of a technical error or because a defendant chooses to cooperate, but of the rest, 97 percent of federal cases and about 95 percent of state cases are resolved by plea bargains, and, in practice, these are almost invariably dictated by the prosecutor.
The plea bargain is where someone is given a reduced or dropped charge for crimes by giving information on a target the prosecutor is much more interested in.  If you've seen any crime or police show on TV you've seen this happening. 
"Flip on Big Al and we'll give you a deal!"
"I want immunity or I'm sayin nothin!"
"OK pal, you got it, now give us the goods!"
This isn't new, its been done for centuries, but its gotten more and more common to give someone immunity or reduced sentencing in exchange for busting someone more important.  After all, the prosecutors argue, who's more dangerous to society, the small time crook or his big boss?  The dealer or the supplier?  The prostitute or the mobster in charge of prostitution on the whole West Side?
The arguments are moving, but there does come a point when you wonder if its worth letting all the lesser criminals go and clearing the way for them to become greater by jailing their bosses?  And did not Giuliani prove in NYC that clearing out little crimes made the bigger crimes go away, too?
What happens if you keep letting criminals go when they get caught because they have word about bigger fish?  It seems like the little fish get bigger, and have less and less regard for the law.  Where's the threat of arrest if all it does is waste a few days of their time with free room and board?
Black goes on:
The percentage of federal prosecutions tried by juries declined from 19 percent in 1980 to 3 percent today, as prosecutors have huge advantages over defense counsel and throw a great raft of counts against a defendant who declines to roll over. The prosecutor wins most of the cases that are tried and, as he can decide on the number and level of gravity of counts charged, defendants can face as much as ten times as heavy a sentence if they plead guilty as they would if they try the case and, as usually happens, lose.
Prosecutors love this because it makes them look effective.  If they never have to go to trial, its cheaper.  Get some small fry to plead to a few months of time and you get a conviction, so your stats look great.  Crime goes down, see the numbers of all these convictions?  The major is tough on crime!
The more convictions they get like this, the more effective they look, and the more hopeless fighting them in court seems.  I win 95% of the time, and all you get is some worthless PD. Plea down and you get a reduced sentence.  Don't plea down and I'll charge you with everything in the book, no matter how flimsy.  You'll never see the light of day until you're retirement age.  Do the smart thing.
Instead of being a "fair and reasonable bargain" between the accused and the prosecutor as the Supreme Court ruled, the system is so stacked its pretty much hopeless to try to fight it. 
Which brings up another major problem: if you're innocent but face the choice between a few months of time and some community service, or being charged with 18 counts and court fights for months, probably losing that anyway... which do you choose?  This isn't justice, its a machine that grinds everyone down for the prosecutors to look good.  How many have been crushed in this system how many innocents?  Nobody can really say, because these plea negotiations happen in private without oversight or examination.  But all the pressure and all the cards are on the prosecution's side, and they have no reason to not pressure and intimidate a suspect except presumably some sense of justice.  Once that person pleas guilty, the investigation stops.
This win at all costs approach is what gave us ABSCAM in the 80s; where guilty and corruptcongressmen such as Jack Murtha were let go because they were willing to give evidence against other congressmen.  Its what gave us Whitey Bulger, who continued a spree of murder, theft, drugs, prostitution, and worse without being stopped because he was too useful to the FBI (and probably giving away "gifts" to the right people).
And that same approach is what is causing cases to be overturned as federal prosecutors, driving to win and certain of intimidating their opponents, are being busted for breaking the rules and even laws.  The most common abuse is for prosecutors to not bother sharing all evidence and information with defense attorneys as the law requires.  They usually don't want to because it would hurt their case and I suppose they figure the defense won't be good enough to notice or have the courage to complain.  But again and again cases keep being thrown out for this lately.
I understand to some degree.  Prosecutors want to win, and more than that, winning means beating a bad guy.  They're on the side of the law, trying to catch and punish criminals.  Some killer or rapist or monster needs to be taken off the streets, needs to be punished.  So they cut corners.
But the corners are what makes the system just, and every time you shave away like that, everyone loses some liberty and justice is damaged.
Police are under the same pressure and will to win.  For decades, cases like Miranda and more forced cops to be able to do less and less, handcuffing them and helping the criminals.  The pendulum swung so badly that voters began pushing back with minimum sentencing laws and voting for people tougher on crime.
But the cops are still pushing and the pendulum is swinging back the other direction again.  With the overmilitarization of police, citizens are facing a law enforcement system that is ready to fight against an army, not keep the peace.  Tanks and bombs are part of the cops arsenal these days, and each time the police gains power like that, the balance shifts toward government.
Complicating matters is the desire to make the job easier for police, which is where cameras start sprouting all over.  Its easier for police if they film everyone all the time, but where does liberty and privacy go in this case?  Its easier for the police if they keep all fingerprints and DNA of everyone they check forever.  But again, privacy?
If a cop checks your finger prints "for elimination" in a case, to make sure they know whose prints are whose in a crime scene, they keep those.  Forever.  And share them with the entire nation, and even world on request.  If you are arrested mistakenly, they keep those prints.  Same with DNA.  Elimination samples are checked and put in a database.  Forever.
Yes, that makes the job easier for cops.  Yes it helps catch bad guys. But is it really a reasonable search and seizure?  Is it truly right that they keep intimate details of non criminals on record for all cops to pull from?
At a certain point, what makes a cop's job easier goes from reasonable power to enforce the law and becomes a tool of tyranny that intimidates citizens, eroding liberty.  When the law has become so broad in its application and the enforcement so powerful it is inevitable that the citizens begin to suffer and rebel.
The more capricious, excessive, or abusive the law becomes, the more resistance and rebellion will become visible.  And the more that takes place, the more violent, abusive, and power hungry law enforcement becomes.
Think about it.  If the taxes on cigarettes had not been so high in NYC, and the new law cracking down on illegal sales - followed up by a "crackdown" on the streets - then would we have this new case of a man dying while being arrested by cops?  If we demand police enforce more and more broad and extreme laws, the results are inevitably worse and more violent.
And in the end, we all lose in a society that lacks wisdom and has laws so overbroad you can't cross town without violating a book full.  Then its just a matter of when and who gets targeted by the government, not if.

1 comment:

mushroom said...

Further, he was given immunity repeatedly by the FBI in exchange for information leading to arrests, particularly of people in Bulger's way on the path to power.

Interesting. As I think about it, it seems to me that this is a much broader problem than criminal justice.

This is very much the same way that corporations use government regulations to limit or eliminate competition.

If regulations aren't being written by the industry leaders, it ought to result in a level playing field -- aside from the fact that some businesses have more capital to adjust to changing regulations.

But a lot of times, corporate money has funded the campaigns of legislators. Legislators of both parties often like to have connected people on their staffs.