Ham Sandwich Prosecution. 4/6/2015
Part I; The Zero Sum Game
The District Court system of the United States is a zero sum game for offenders. While, it should be a zero sum game for criminals caught in the act of egregious crimes the vast amount of cases heard on the District level are trivial and fall under the scope of a 'misdemeanor'. The zero sum means the defendant giving up their rights to trial, plea bargaining cases, making deals with prosecutors and levied a hefty fine. For the judicial system however, the balance sheet is always in the black.
A small time petty crook can have his pay garnished, forced to pay a monthly fee to Probation or undergo some sort of re-education (ie; anger management, counseling) depending on the crime. Depending on the size of the District Court the amounts of revenue raised can be in excess of tens of thousand of dollars a day. Cases heard in District Court range from traffic tickets, DUI's, driving after suspension, probation violations, breaking and entering to domestic violence. While these cases are very serious and do carry stiff penalties criminals can usually avoid jail time by ante-ing up the cake. Career criminals know the system and are able to avoid their debt to society by craftily manipuating the system with a wad of cash.
If you sit in a court of law and hear the cases you soon find an underlying theme. How much do they owe? How much do you have on your person now? Court fees, fines are assessed and probation handed down. It is an exception that some one is sent to jail for negating their obligation to Court. Even then the sentence is a short stay, not an actual 'sentencing' per se'.
We must address the use of 'Bail'. Defendants should know to hide their cash in modern day NDAA/DHS America once arrested. Local police confiscate cash then demand high levels of bail based on what is in the offender's wallet. The town of Westford Mass did this to me twice on 2014. The 'actual' Bail was only $40 for an old arrest warrant: Failing to appear. Yet Police of Westford (after they searched me) found $200 in my wallet. My bail became $240. The second time they only tacked on a 'nominal' fee of $100 simply because I emptied my wallet to a friend before hand.
Civil Forfeiture (as it is known) raked in over $2 billion nationwide in 2014. HBO comedian/talk show host John Oliver reported on one of his shows the ridiculous things local law enforcement purchased with stolen money. Sports cars, vacations and (in one case) a frozen margarita dispenser to name a few. Sadly, there is no accounting process in place, no reprimanding in place and no sign that Civil Forfeiture will be curbed in the future.
The Plea Bargain is a great source of revenue for the State. By amassing multiple crimes a person is forced to 'make a deal' with Prosecutors. They plea guilty to crime A in lieu of crimes B,C,D struck from the case. Defendants are threatened with larger prison sentences if they choose to go to trial. It is as if the Prosecutor is annoyed that he/she would actually have to prove their burden of reasonable doubt. Many times this results in the accused forfeiting their right to trial and a judge hands down a decision based on recommendations of the Prosecutor. In addition, costs associated with defending oneself is a key mitigating factor. Public Defenders are employees of the State and are usually backlogged with more cases they can handle. The chances of a defendant having that Public Defender go the extra mile to win the case are slim. He/ she gets paid by the State in addition to what the defendant has to pony up regardless of outcome.
It is a fatal fallacy to think that Prosecutors are interested in truth and justice. They are interested in winning. The American Judicial system is rife with historical examples of botched prosecutions yet there is no letting go of the case. There is only 'saving face' and getting something out of the defendant. Some prime historical examples would be the OJ Simpson case, Casey Anthony and, more recently, the Zimmerman case.
Our criminal justice system, as presently practiced is basically a 'plea bargain system with actual trials being the froth that floats to the top. In a New York Yimes editorial piece July 16th 2012 Justice Kennedy noted a stunning and often overlooked reality of the American legal process: A vast majority of criminal cases (97% of Federal, 94% of State) are resolved by guilty pleas before any trial takes place. The system is loaded with pleas and not a system of trials.
Five proposals to curb this abuse of power would be:
1; Reduce the absolute immunity of prosecutors to a qualified, good faith immunity.
2; Require prosecutions of police officers be handled by 'out of district' prosecutors to avoid a conflict of interest.
3; Enact a prorated 'loser pays' rule for prosecutors to offset criminal defense costs. For instance, if a person is charged with 10 crimes yet is only convicted of 1 the prosecution must bear the costs of the defense of the other 9. Or, in the case of a complete exoneration, 100% of the costs.
4; Restrict the use of plea bargaining altogether. Require that every charge be backed up in court with tangible evidence or dropped completely.
5; Remove 'entity based' charges. Require that prosecutors no longer take over a case but that the person accusing is the person who bears the witness (and cost). Domestic abuse cases and Family Court cases are overwhelmingly handled this way resulting in a defendant facing the state prosecutor's office rather than a Plaintiff.
In a November 2014 National Review article by Conrad Black;
Judge Jed S. Rakoff of the federal district court in New York..... laments the breakdown in American criminal justice caused by abuse of the plea-bargain system. He writes, correctly, that “the criminal-justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.” He quotes Jefferson’s expression of faith in the jury trial as “the only anchor yet imagined by man by which a government can be held to the principles of its constitution.”
“The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal-justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.”
http://www.nationalreview.com/node/392417/print#pq=gX8txI Conrad Black describes the historical path of plea bargains. Prior to the Civil War practically every case was a jury trial. Given the war, immigration, a growing urban population the need to streamline an overburdened court was instituted. Black states that this was grave mistake. To this day other nations are forbidden to adopt this policy. You are more likely to receive a fair and unbiased trial in Australia, or, Malta than you are here in the United States regardless of the 5th and 6th Amendments.
Prosecutorial power is immense in America. Mandatory sentencing rests in the hands of a Prosecutor not the Law, a judge's or jury's final verdict. This broad scope of power leaves little room for scrutiny or restraint. It (quite literally) allows prosecutors the ability to indict a ham sandwich should they find cause.
Part II; Injury of Injustice
Frederic Bastiat
Frederic Bastiat wrote; "... Law is the common force organized to act as an obstacle to injustice. In short, law IS justice." So, how is it that force is organized in such a way to create a system where everything is illegal? What weakness exists in the law that requires it to be omnipresent in order to ensure it's own enforcement?
The weakness is the law's inability (and it's original intent) to control every aspect of our lives. However, by creating a system where a person can be charged with a litany of prescribed crimes the law asserts it's control over everything we do.
For instance; say a person is arrested for a large amount of narcotics in their home/person. The individual isn't charged with simple possession. That would be too simple and would not fall far enough under the scope of control. He/she had to have either purchased the narcotics or manufactured them. For the sake of time we will say it was purchased. We do not have the time and length of paper to cover the laundry list of violations should we be dealing with a 'Breaking Bad' scenario.
The individual is charged with possession and procurement. Two charges already. Then, there is the question of 'how much' was confiscated? We now enter the scope of possession and procurement over a 'certain amount'. Who determines this is another vein to explore at another time.
We have yet to explore how it was stored (Federal violations). Environmental effects, zoning laws, fire codes.. The list can be (and usually is) endless.
What about intent to distribute? Was there any evidence of material to package, sales rosters, measuring devices? We can now attach these 'crimes' as well.
Given the fact that there are true manufacturers and distributors of narcotics and given the facts that law enforcement monitors these people in order to remove them lawfully from our midst the evidence must be clear, the process should be sound thus the verdict inevitable. But that is not always the case.
Allow for a moment a scenario:
An individual is arrested for possession of 1 pound of marijuana in his/her home. How does law enforcement assume or gather evidence of intent to distribute. If this individual does not sell, distribute or, in any way fit the profile of a 'drug dealer', how does the state bring to court this indictment?
They manufacture the evidence.
Perhaps this person bags lunch for work. Confiscating a box of Ziploc bags from the kitchen as evidence would be first on the list. Perhaps, in bagging the lunch, they are on a diet and use a food scale. That becomes second on the list. Maybe they keep money, or a gun in a safe for emergencies. What if they have rolled a few 'joints' and keep them in a case purchased at a legal tobacco shop? All of these are perfectly reasonable and totally legal behaviors yet, all of these become a form of de-facto evidence.
By manufacturing this evidence law enforcement adds any and all charges they wish. All of them 'painting' a picture of criminal intent where none existed before. Regulating and classifying everyday behavior as potential criminal activity allows law enforcement to control every aspect of our lives.
Bastiat goes on to write; "...It is not true that the function of law is to regulate our... work, our trade, our talents or our pleasures.. If you exceed this proper limit.. Then you will be lost in uncharted territory, in vagueness and uncertainty.. in a multitude of utopias, each striving to seize the law and impose it upon you.."
In the 2015 spring issue of Intercollegiate Review Magazine British House of Commons Member Daniel Hannan writes; " ..In the Eurocrat's mind unregulated and illegal are synonymous concepts. The idea that lack of regulation should be your default option... is seen as a bizarre Anglo-Saxon peculiarity"
Here in the US we make up laws simply because they don't exist in the first place. We regulate everything forcing a person to be at the whim of some nebulous law they never knew existed. In Harvey Silvergate's book, "Three Felonies A Day" the concept of 'ignorance of the law is no excuse' becomes Orwellian at this point.
Part III; Prosecutorial Victimization
1990 in Madison County New York Delbert Ward was arrested for the murder of his brother. The Ward brothers are (or, were) four elderly, illiterate, border line retarded cattle and hay farmers in the upstate community of Munnsville NY. They all lived together in a small shack, were generational natives to the area and frequented the town's shops and the county auctions. Though labelled by the prosecuting attorney as outcasts they were anything but outcasts to the townspeople who knew them well. The video documentary 'Brother's Keeper' by filmmakers Joe Berlinger and Bruce Sinofsky follows the Ward brothers in the weeks leading up to their trial.
Delbert Ward
One morning William Ward was found dead in his bed next to his brother Delbert. William had long suffered from various ailments including coronary disease, infections from a chainsaw wound in his foot and respitory pneumonia. However, despite the outpouring of support and sympathy from the town of Munnsville State Police investigators arrested and interrogated Delbert Ward and eventually charged him with the murder of his brother.
The suspicion of murder came from the forensics examiner who found various 'abnormalities' during the autopsy and suggested to the investigators that a natural cause of death may have to be ruled out. Oddly enough, forensics held onto the final report until notified by State Police investigators that they had secured a written confession from Delbert Ward. At that point forensics finalized the report and labelled the death of William Ward as a homicide. Normally, a person would not think twice about a written confession except for one small fly in the ointment. Delbert cannot read or write. Nor, is he mentally capable of understanding the charges as they were presented to him. The investigators created a scenario where (somehow) 66 year old Delbert had the strength and temerity to asphixiate his brother with his hand over the nose and mouth. The rationale behind this was that Delbert didn't want his brother to suffer anymore. Considering the IQ of the Ward brothers, their farm upbringing something like this would make perfect sense to Prosecutors. After all, he (Delbert) wouldn't let one of his animals suffer in pain. Why should his brother?
State Police Investigators wrangled a written confession from one of the other brothers as well. Lyman Ward is the worse off of the Wards as far as mental capacity is concerned. During the actual trial when presented with his confession he was neither able to understand what was being said to him, the confession (as it was written) nor able to formulate a cogent answer to the Prosecutor's questions. In the documentary you can see the Lyman visibly trembling so badly that the Judge had to stop the trial and Lyman had to be removed by medical personnel and hospitalized.
Part IV: One Big Happy Family
Cases like the Ward's are not isolated. We have reached a point where anytime, anywhere in the United States a botched prosecution can take place and usually does. What makes this more dangerous is that the search for the truth takes a back seat to the search for a prosecution. Investigators are not 'looking' for the truth, they are looking to make a 'collar'. The precept that everyone arrested is automatically guilty destroys our Constitutional principles of Fair Trial, right to face accusers, due process and the adage of 'innocent until proven guilty".
In a University of Tennessee Law School paper written in 2012, author Glenn Harlan Reynolds writes about one Southern District of New York where the Prosecutors would play a game naming a famous person and then searching the law books for any crime that could be attached to that person. Here in the Ward case Madison County Prosecutors turned this concept on it's head by creating the crime, forcing a confession and pinning it on Delbert Ward.
Forensics in the Ward case defaulted to claiming the death 'suspicious' after hearing that there was a written confession. The Dr. knew nothing of the Wards, could only piece together a 'probable' cause of death and failed to take into account the prior health conditions of the deceased. It didn't matter. All these agencies worked together for one common purpose; to secure the evidence necessary (even if they created it) to result in a verdict of 'guilty'.
Grand juries (once sequestered) are not required to search for the truth but rather examine the evidence supplied by investigators and prosecutors to determine if an indictment is possible. Opposing witnesses are rarely allowed to give testimony as was the situation in the Grand Jury that convened to hear the Ferguson Missouri incident. Though we can scarcely argue here the minutia of the shooting that took place that fateful evening it must be pointed out that the Grand Jury was only given reports, testimony and evidence presented by the police involved in the case. The Eric Garner Grand Jury in New York City was sequestered and also given police reports, testimony and evidence. Both examples reflect one of the five solutions proposed earlier in this essay; that cases involving police should be heard by 'outside the District' Prosecutors to avoid a conflict of interest.
What unfolded on national television in the weeks afterwards are now history.
Where this takes an even further dangerous step is the militarization of our local law enforcement. DHS money is being poured into communities for the purchase of surplus military equipment, spy technology and cell phone capturing technology. Prosecutors now have the machinery in place to execute warrants, arrests and confiscation of private property.
Frighteningly, the urge from lawmakers to confiscate arms from citizens is growing across the country. Connecticut is leading this charge with their recent demand to have citizens register grandfathered weapons magazines over 10 rounds or have them confiscated. Branford Police Officer Joseph Peterson made the famous Facebook remark of, "... I cannot wait to get the order to kick your door in...." when referring to the confiscation of these magazines. Constitution be damned and more power to prosecutors to imprison law abiding citizens with lengthy charges.
Noah Webster wrote, ".... The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed." But, how much longer? Unjust laws are so vast and complex today that the average American commits three felonies a day and does not even know it (Silvergate). The right to keep and bear arms is clearly defined in our Constitution but not so in today's tangled web of codes and statutes.
Alexander Hamilton wrote in Federalist #29, "... should at any time... the government form an army... that army can never be formidable to the liberties of the people... a large body of citizens.. in discipline (in) the use of arms." While there are plenty of law enforcement officials who will not obey Un Constitutional laws there are those who will and they will gladly work hand in hand with prosecutors as one big happy family to bring these 'criminals' to justice.
Part V; Incarceration Nation/SWAT Nation
This quote, from the 2014 Massachusetts Department of Corrections Report states;
" The Massachusetts DOC’s total prison population increased by
9% between 2005 (10,138) and 2014. Total population (11,034)
. The population rose almost 3% between 2011 and 2012 and
reached the highest total in a decade; (11,723) this was followed
by a decrease of 6% between 2012 and 2014. During this time
the crime rate decrease."
" The cost per inmate per year varies from $36,000 to as much as
$114,000 for those needing the services of the Bridgewater State
Hospital. These costs are increasing while our Commonwealth
reduces what it spends on Education and runs a deficit...."
From Wikipedia in 2013;
...... the incarceration rate of the United States of America was the highest in the world, at 716 per 100,000 of the national population. While the United States represents about 4.4 percent of the world's population, it houses around 22 percent of the world's prisoners. Imprisonment of America's 2.3 million prisoners, costing $24,000 per inmate per year, and $5.1 billion in new prison construction, consumes $60.3 billion in budget expenditures.
Oddly, as crime has fallen here in Massachusetts as well as nationwide the prosecution of people seems to be increasing. Prison populations are still on the rise. With these prosecutions come confiscation of property and assets. If the costs are rising to imprison a person then what is happening to the property and assets seized? Aren't these confiscations turned over to defray the costs of incarceration? As we mentioned before they are not!
One account for these high population numbers is the mandatory sentencing, which restricts the discretion of a Judge. The second is the increased length of these sentences (Wikipedia).
Drug offenses account for over 31 million arrests and over half of the prison population. Drug raids account for over 75% of the 'No-knock' raids that occur daily in the United States. This calls into question the over use of law enforcement and the machinery in place to execute those raids. Prior to 9/11/2001 there were roughly 300 SWAT raids a year and were comprised primarily of a hostage situation, bank robbery, gang shoot out or a terrorist act. Today there are over 180 SWAT raids a day and the vast majority are drug busts.
In the Sept. 8th 2014 issue of The New American magazine by Joe Wolverton he cites the horrific account of a 19 month old severely burned by a flashbang grenade tossed into the child's crib during a botched drug bust. The police had the wrong house.
Wolverton continues with the example in April 2014: Nassau County SWAT raid a house after a report of an armed gunman. It turned out to be a hoax.
On the website copblock.org and thefreethoughtproject.com one can find hundreds of examples nationwide of poorly executed raids, wrong houses, wrong people, innocents being shot and killed (unofficial numbers hover around 5000 since 9/11), pets being killed, police brutality and stunning visual examples of police looking more like combat shock troops than police officers. With the increase in raids comes the increase of deadly mistakes.
What makes things worse for the victims is that police are exempt from criminal prosecution. Civil liability is exempt as well. The victims still have to pay all the court costs, hire an attorney, face possible jail time (even for defending themselves) and bear all the costs to repair their destroyed home.
As Radley Balko said about the 'New' American Police in an August 2013 Wall St. Journal editorial; ".. the warrior cop... armed to the teeth, ready to deal harshly with targeted wrongdoers, and a growing threat to familiar American liberties.."
Conclusion;
It is difficult to trace how we arrived at this juncture in American History without adding several more pages to this dissertation. What we can say is that we are definitely here now and there seems to be now end in sight. As our central government takes liberties away from us at an accelerated pace the same seems to be true for local officials as well. The criminal justice system is basically a meat grinder whose sole purpose is to wring whatever they can from us; our money, our liberties, even our lives. Disturbingly we hear many admonitions from our elected, judges, thinkers and writers but, that is about it.. Nothing actually gets done to reverse the situation.
Guest on The M&P Conservative Media Network Col. Reid Reasor once described during an interview in 2014 how all of this is; "...purposeful.. It is designed to hurt us". The Colonel also spoke about how there may be an element of mental dysfunction in the minds of the people who adopt these policies and implement them. Surely, they must know these things are wrong and violate Civil Liberties yet they are employed none the less. Is it designed to pacify the population? What was that famous saying about government fearing the people vs people fearing the government?
"Our law enforcement is now openly adopting a mentality that every single American citizen is a potential threat and should be approached, dealt with and remanded, according to this precept. Any attempt by said citizen to question, film, defend themselves, resist, argue, or fight back against any violation of their implicit and defined Constitutional rights are subject to arrest, potential assault by law enforcement; and in too many tragic cases, death." Christopher Maider. The Lexington Green. Nov. 2013.
Virtually every single one of us knows that rush of adrenaline every time a police car pulls up behind us, pulls us over. We are a nervous population now. A simple misdemeanor can become a legal nightmare. The Justice System does not dispense 'justice' any more it dispenses fines, deals and incarceration. It is a 'pay to play' system with the cost being born disproportionately by those who can afford it the least.
Christopher A.W. Maider, CEO
The M&P Conservative Media Network
Worcester Tea Party Media Liaison
2015
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