EPILOGUE: WHERE DO WE GO FROM HERE?
Please hear me clearly:
We need the police.
We need prosecutors and judges as well. And I make room for the proposition that we are well served by our fear of their power. Indeed, we have been taught to fear power from our earliest times—fear of parents, of teachers, of our bosses, fear of rejection by our peers. In short, fear plays a controlling role in the lives of all of us. And fear causes us to make lawful choices in our lives. Fear helps provide an orderly society. We want to be safe. We fear chaos and crime, and we’re willing to overlook occasional police misconduct as the price we must pay for a predictable, safe society in which to pursue our lives.
At the outset we believe most police and prosecutors are working to achieve a peaceful, crime-free community. We believe that they have our best interests at heart. Some may occasionally cross the line, but they are only human. We are all prone to err. Sometimes the police themselves are faced with circumstances in which fear takes over, and to protect themselves they may overreact. I would be doing the police as well as society a gross disservice to argue that all police are villainous crooks wearing a badge, and that the words “cop” and “killer” are synonymous. Such is not my belief. But what, then, am I saying?
The police tell us their truth: They say we, the people, have no understanding of a cop’s everyday encounters with drunks, muggers and thugs, the marginally and utterly insane, the wife beaters and drug peddlers, to mention only a few of the dirty, dangerous discards of society the police daily face. Do we question their truth? How many times have you embraced that argument when you read in the morning paper about a current spate of police brutality? And have you ever asked yourself, how have I come to accept the cop’s argument as the whole truth without questioning how I came to believe it?
But who tells the people’s truth? The large majority of law-abiding citizens know little about “what goes on out there.” What we think we know we’ve been taught by decades of fictional TV cop shows sponsored by Power—the insurance companies, the mammoth oil corporations, international banks, car manufacturers, national loan sharks, pill pushers, and the various other offspring of Power. We’ve been provided entertainment, not the whole truth, by the voice of Power—the media. We’ve come to believe Power’s propaganda in much the same way that we believe our religions—that our police and prosecutors will not prosecute and convict the innocent. Such would be un-American. But blind beliefs, cultural brainwashings, can hasten the end of a free people.
At the same time, the justice system lumbers along at the speed of a crippled worm while the prosecution chalks up conviction rates in our venerable federal courts as high as 97 percent, mostly attributable to the bargains made with guilty pleas.38 That statistic, on its face, boldly belies the proposition that America provides its citizens with fair trials. Until we become “the subject” of a serious, life-threatening encounter with the police, we try to just get along, to raise our kids, love our grandkids, watch our favorite TV programs in the evening, take our deserved two weeks’ vacation, and hope for a comfortable retirement and a merciful death.
Then one day one of our own, even one of us, becomes the subject. We are arrested. We are thrown in jail, and if we cannot be bonded out we will be imprisoned for months, even years, awaiting trial. We will lose our identity as a member of society. We are provided a number underneath our mug shot, and our history will be forever besmirched by a criminal charge blaring out at the world from our police record. Innocent or not, we will most likely become another number in a penitentiary or a convicted murderer on death row. Such a transforming process puts me in mind of the hawk sitting in a treetop waiting for the sparrow to fly by. At the precise moment of the hawk’s strike, the sparrow loses its identity as a fellow bird and becomes the prey. To the police, when we become “the subject,” we are no longer persons, and we’ll be de-feathered, ripped apart, and disposed of in one way or another.
Members of the police culture—the police, the prosecutors, and too often, the judges themselves, are hatched from the same political womb. And politics has diseased the womb. The poor, along with our revered middle class, do not hire or fire our police. Police, prosecutors, and sometimes judges—even those on our highest court—too often are indebted to Power and become the servants of Power. I argue that political debtors are disqualified from delivering justice. One thing soon becomes clear: The quantum of justice available to most Americans is in direct proportion to that individual’s social and economic status, which is to announce the controlling rule of law in America: Little money, little status—little justice.
The problem is simple to define. Power does not serve the people. Power serves itself. The personal needs of those who make up Power—from the police officer to the banker and corporate executive—all are in service of the self. Too many police have chosen their work in response to a personality that craves to dominate other human beings. Bankers who throw a widow out on the streets in winter are bullies diseased by a love of money. The corporate executives who will cut their employees to starvation wages in their psychotic quest for profit are bullies. Or the same executives will, at the expense of the health and lives of customers, ignore standard safety practices hoping to acquire yet more profit. The cases I’ve written about here each illustrate a different story, but are essentially the same story: a story about the same perverse incentive of Power—the uncontrolled, psychotic urge to dominate and intimidate the helpless in response to Power’s compulsion to serve itself.
We remember that Sheriff McDougall charged Albert Hancock, a poor ranch kid, with a murder he didn’t commit, all the while ignoring the husband and various lovers of the deceased as suspects. Albert was the easy mark for the sheriff, who admitted his need for a conviction. Power attempted to imprison this boy in concrete behind steel bars for life, where he would be raped and where he would die of torment and degradation. And what about the resulting end of life that would have been visited on Albert’s decent, naïve parents?
The Weavers were poor and powerless. They were seen as religious fanatics isolated from the rest of the community. Power’s malevolent incentive was to exercise itself for its own sake—to push around the defenseless because it could. To entertain themselves in that remote corner of Idaho, the feds didn’t hesitate to trespass with armed operatives on the Weaver property and, without a warrant, to thereafter engage in an all-out war against the survivors of that besieged family who had dared live outside the religious boundaries of the mainstream. The charge had been sawing off a shotgun at the inducement of the feds themselves. The punishment was the killing of a boy’s dog, then the murder of the boy, then shooting and seriously wounding the males in the household, and finally blowing the mother’s head away while she held her baby in her arms. Justice never had a chance to raise its tromped-on head. Not a single cop spent a day in jail.
What reprehensible incentive moved Power in the John Singer case? Power always demands victims. Without victims, power is useless. Once again religious outcasts, those with little community support, became the easy target for Power’s bullying. The crime was the Singers’ refusal to send their children to what they believed to be a decadent public school. Their punishment was the death of a loving father and husband. With impunity the police shot him in the back while he ran for shelter. To this day no officer has answered for the killing of John Singer. Nor has his killer even been identified! Moreover, when his widow and children sought justice for his wrongful death, a respected federal judge bowed to Power and dismissed their cases, requiring the judge to write the longest decision of a federal trial judge in Utah’s history.
Our celebrated FBI—Power personified—can charge an innocent, naïve, law-abiding lawyer, Brandon Mayfield, once a Kansas farm boy, with the mass train murders in Spain, the government’s evidence being a phony match of his fingerprint and the fact, in flashing neon lights, that he was a converted Muslim. What an invitation to the blind compulsion of Power! The infallible FBI could nab an Islamic “raghead,” as that slur is flaunted in the society of hate, and solve the crime of the century—and in Spain! But power blinded the FBI to its own fallibility. Had its false charges against Brandon not been exposed by the Spanish police, he would have surely faced the death penalty. Still, not one of the federal agents involved has even been reprimanded, nor will one lose a nickel from his pension.
Whenever I think of Fouad Kaady I see the barbarous incentive of Power in full, tragic, exalted force. The police, because they had power and the accompanying bullying needed to exercise it, could repeatedly unload their Tasers into Fouad’s seriously wounded, naked body with as much concern as if torturing a crippled rat. Worse, they sought to further wound the already wounded before they killed him. When he couldn’t escape and could no longer respond to their commands, these fully armed cops claimed they were afraid and emptied their pistols into the dying Fouad—to save themselves? His killing was passed over by the prosecutor’s grand jury as if it exemplified proper police routine.
Our government can charge an innocent woman with multiple crimes in order to forward the international agenda of the United States, as in the groundless prosecution of Imelda Marcos. Power that included the president and other high government officials was willing to prosecute a once beloved friend of America, in exchange for our military needs. All we’ve ever heard of Imelda’s trial is how many pairs of shoes she owned. Despite her continued popularity at home in the Philippines, where, with love and respect, she is called “Mamma,” and where she still serves her country as a legislator, the media, the genuflecting voice of Power, has convinced nearly every American that Imelda Marcos is a greedy thief who escaped punishment because she had a smart mouthpiece.
The cops can frame a poor, innocent black kid, as they did in the Dennis Williams case, convict him of crimes he did not commit, and sentence him to death, after which he languished on death row for eighteen years, and, in the meantime, the prosecutors can laugh at their obscene game called “Niggers by the Pound.” To this day neither the police, the prosecutors, nor the politicians have suffered the first consequence, perhaps not even a twinge of guilt at bedtime. Power for power’s sake becomes the law, so that in the end, Power runs rampant and is answerable to no one.
The president of the United States, Mr. Power himself, can call upon the federal cops and the courts to forward his vindictive goals—to see that his political enemies are charged with crimes, as in the Geoffrey Fieger sham, an arrogant overt expression of unbridled power launched on a mission of revenge. And although after years of torment and torture a jury acquitted Fieger, not a single conspirator in that power play has offered the first apology for the resulting misery and damage to Fieger’s life and to the lives of his family and co-workers. Even the law under which he was prosecuted has no meaning today since corporations and individuals are now substantially free to make unlimited contributions to political causes—a devastating wound to the rights of most Americans to take any meaningful part in the election process.
Power has one purpose: to satisfy itself. In doing so Power kills, wrongfully persecutes, and criminally imposes itself on the innocent. Yet the work of Power can be justified, even blessed, when it is exercised by a fully informed, intelligent people in pursuit of their rights as a free people. But the cry “Power to the people” is no longer heard. In its stead we too often hear the muffled, wretched response of the new American slave—“I got nothing to hide.”
Finally staid old Harvard stuck its toe into the water to admit the obvious. In his scholarly work In Doubt, Harvard professor Dan Simon writes:
The truth-seeking objective is most likely to be overridden in high-profile cases, where the pressures to solve the crimes are the strongest. In some instances, the adversarial pull results in deliberate police malfeasance, and even entails lying outright in court, a practice known as testilying.39
What the good professor might have added is this: Over the years these killings and wrongful prosecutions have taken place in nearly every city and hamlet across the country, mostly outside the glare of the media that too often sits blandly by blinking its sightless eyes unless called upon by Power to speak. Who cares about what happened to Mr. Nobody? “He must have had it coming,” we say. “And, if not, it was he, not I. What do you expect me to do about it? I’m just an ordinary citizen. I have no power to take on the system. Besides, we need tough cops to protect us against the hordes of criminals who are roaming freely out there and daily threaten our lives and safety.”
The police, prosecutors, and defense attorneys all want to win. Winning is the operative word. But winning is not geared to preserving the rights of the accused nor delivering justice. Winning has little to do with discovering the truth. We hear it like a worn-out mantra: He or she won a conviction, or she or he won an acquittal. Winning. But at what cost to justice? Winning and injustice are often unfriendly occupants in the same bed.
What happens when the police, in the name of winning and by whatever means, frame the innocent for murder? These helpless, often nameless wretches are themselves eventually murdered by the state after they’ve been tortured for years awaiting their fate on death row. We strap them to a gurney and insert the needles and usually no one cares. We may be advised of the state’s killing with little more than a half-minute report on the evening news, after which we switch to the next cop show.
And the innocent die a slower, more torturous death. To know that one is innocent, but day after day, year after year, decade after decade one is penned up like a dangerous beast in the zoo—such is the ultimate torture. There the innocent will live out their remaining years in a cramped, concrete closet as the hated, and in the company of the hated. There they will die at the hands of other inmates, or by the clubs of sadistic guards, or from inadequate medical care, or, at last, from the accursed needle itself.
In the meantime the police officer’s moral justification for his own criminal conduct that led to the conviction of the innocent citizen varies little from case to case. I’ve heard police argue, “Well, if he wasn’t guilty of this crime he was guilty of one we never caught him at.” I’ve heard others say, “Whatever we did was peanuts compared to what he did or would have done had he still been running loose on the streets. It’s war out there. And we’re going to win the war.” Still others contend, “The laws we have to deal with tie our hands and let the guilty escape.” I’ve heard others complain, “We do what we have to do to get those scumbags off the street. Read them their rights? Get them a mouthpiece? Right! The law forces us to use other means.” And many of our citizens applaud such rationalizations, and quietly murmur, “It may happen to them out there, but it won’t happen to me.” And as a chorus to such universal rationalizations we hear the same dangerous words, “I don’t worry about the cops. I have nothing to hide.” If one has been spawned in a fishbowl, how does one know the dangers of the river?
After the widely published accounts of the people’s protests over the deaths of black citizens at the hands of the police—the choking death of the unarmed Eric Garner, the shooting death of the unarmed Michael Brown in Ferguson, Missouri, and the shooting death of the twelve-year-old Tamir Rice on a Cleveland playground as he held a toy gun—Americans seemed to have at last awakened. New York City mayor Bill de Blasio was seen by the police as having joined the people’s protest, and at the funeral of one of their officers thousands of police in full dress uniform stood and in unison turned their backs against the mayor, their boss, in a shocking display of power and insubordination. When the police can, in open rebellion, display such power without fear of reprisal, is this not the conduct of the police in a police state?
SO WHAT CAN WE DO? If we can prevent the long-standing practice of wrongful killings and their cover-ups by our police and prosecutors, the entire justice system will tend to right itself, like a ship that is otherwise sinking. Let’s take the easy ones first.
1. No more forced confessions. How can we stop our police who by exhaustion, false promises and fear attempt to extort confessions from those who are frequently the least able to protect themselves—like Albert Hancock, and most of whom are also impoverished? The answer is simple. All police interrogations from the first “hello” must be videotaped, every word, absent which any evidence of any admissions or confessions will be inadmissible at trial against the accused. No more hauling out the tape recorder only after the accused has suffered endless interrogations by teams of police and is on the margins of collapse. A defense attorney should be present at all stages of every interrogation, even when the accused waives that protection. So the cops wouldn’t get their usual spate of confessions? For once, let the police and prosecutors prove their cases beyond a reasonable doubt as is required by the Constitution. The 97 percent conviction rate in federal jurisdictions would begin its descent toward justifiable statistics. And those charged with crimes, guilty or not, would receive the constitutional protection that a free nation demands.
2. All police must wear video cameras that fully reveal their conduct. In one California town officers began wearing cameras, and within a year complaints against police fell 88 percent—an astounding statistic—and specific grievances concerning the use of excessive force by police fell 59 percent.40 Of course, these devices can be turned off or not worn at all. But a thoughtful legislature can and should pass laws that provide that in the course of any questioning between an officer and a citizen, if the cop’s camera is ever turned off a jury is entitled to presume the cop’s misconduct.
3. Better psychological testing for police candidates. Perhaps experts in the field can develop more effective tests to identify candidates who are not psychologically suited for police work. I know of no study that suggests that current testing has improved the selection of our police. Still, when challenged, police departments, state and federal, including the FBI, wave their testing in our faces, shrug their shoulders, and defend by admitting that their testing procedures are not infallible. Their tests serve at least one purpose—to provide an argument that the department tried to eliminate the bad would-be cop. A nation brimming with psychiatrists, psychologists, mental health experts, and other students of the species can surely devise new and more effective paradigms to study the personality of the police candidate. If we can select those most qualified to travel to the moon armed only with the American flag, surely we can do a better job of selecting those who travel our streets armed with pistols and clubs.
If the power of the police can’t be properly monitored and controlled, if our ability to change the police culture is stuck in the dead goo of precedent, the result will produce a police state. That is my promise. Indeed, one may ask, have we become like a sleeping passenger on the bus, and when the bus arrives at its destination and comes to a jerking stop, will we awaken and ask, “Are we already here?”
4. A citizens’ commission to oversee police conduct. As an adjunct of the state district courts, a commission should be created in each judicial district—let’s call it the Police and Prosecutor’s Control Commission (PPCC)—to receive complaints from citizens concerning police and prosecutor abuse. If you’re mistreated or otherwise wronged by an officer, you would have the right to immediately file a complaint with the PPCC. If you’re stopped by a highway patrolman who roughs you up, the PPCC would hear your complaint, and if it supports your complaint, it will present the same to the district attorney. If the complaint is against the district attorney or a member of his or her staff, the court would appoint an independent prosecutor to take over the case.
PPCC members would be selected in much the same way that we select grand jurors and would proceed under the general rules of a grand jury. Its finding of probable cause would be by a preponderance of the evidence and would require a supermajority of two-thirds. For obvious reasons former police officers and prosecutors and those close to them would be disqualified to serve on this commission. Similar commissions would be created by Congress to investigate complaints against federal officers. I suggest a commission membership of, say, twenty-four, to be drawn from the jury pool, a group large enough to fairly represent the community. Perhaps the first twelve, drawn at random, would serve one year, the second twelve two years, and from year to year thereafter half of the commission’s membership would be replaced.
A special prosecutor—the PPCC attorney—would be appointed by the district judge. He or she would select such staff as might be required to properly investigate and present complaints made to the commission. The PPCC attorney would report annually to the district judge, who, with the consent of the commission, might reappoint the PPCC attorney for each succeeding year. Perhaps the people themselves would select their own special prosecutor in a public election held every four years.
Mrs. Kaady would have been able to file a complaint against the police for the murder of her son. And rather than the police investigating themselves, the PPCC would make its independent investigation and report the results and its recommendations to the district attorney, who must, by law, provide a timely, written, public report disclosing the action he or she took on the commission’s complaint.
The details of the PPCC can vary. What is imperative here is that the citizen has a place to go with a complaint other than to the offending police themselves. That every abuse will be investigated from outside the police organization would serve as a powerful deterrent to police misconduct, especially if all proceedings before the commission against the officer would be open to the public. Finally the clear light of day would shine on the work of our own employees, the police. No longer would they be those feared killers out there who answer to no one; they would be disciplined officers who are careful to properly, legally, protect us all.
5. It’s time we elevate our police to the status of professionals. Indeed, police work should become a profession on the same level as that of lawyers, engineers, and architects. If police are members of an acknowledged and respected profession, better applicants will be attracted, and the officer who sees himself or herself as a respected professional will tend to fulfill the expectations of the profession.
Today police are trained to confront violence with violence. We train soldiers to kill. We train our police the same. We train our police to disarm and subdue those who present a threat. Police become experts with weapons and learn standard tactics for survival in the wars out on the streets. Standing alone, the result of such training is to create a culture in which they, the police, are against we, the people. To the police, even the little old lady sitting quietly with her knitting may have a .32 caliber pistol lurking under her cloth. Police argue, you can’t tell a killer by his or her looks. Too often you can only identify a killer after the killing. To the police, the potential enemy includes every being who walks, breathes, rides in a car, or attends a movie, every drunk in a bar, and every husband or wife in the bedroom. Everyone.
We must make radical improvements in the training of our police. We must begin creating a new and different people-friendly culture. In ways, a more paternalistic relationship is in order. If the police see the people in their community not as the enemy but as members of their family, as the young who need guidance, as the old and infirm who require help and protection, and as the tough and the wild (with certain character traits that the cop himself may possess) who need understanding and, from time to time, a caring and restrained sort of discipline—if we were to enjoy such a police culture, the danger of a police state would soon fade. Our police would be seen as respected participants in society, perhaps even as trusted friends.
To be sure, police must be trained to confront aggression. But their training must go further. The answer to a police call must be something other than an opportunity for an officer to kill. Police must become part of the community as persons; their service to the community must respect the community and, by their model, encourage the community’s participation.
6. Additional suggestions for police training. We should provide officers better training on how to deescalate dangerous situations. Trainees would be enrolled in groups of less than twenty. At least a third of the group would be individuals from the community, including representatives of the poor from the ghettos and representatives of minorities. The group would be presented with the most frequent scenarios that the officer is called upon to solve—including the most dangerous ones. Members of the group will offer their suggestions. What would these people who are not police officers do facing the same situation? The answers from the civilians in the group will be different from the solutions offered by the police. Somewhere along the way ideas will blossom that are foreign in most police training—that caring and understanding are often the most important weapons an officer can bring to a crisis.
The discipline known as “psychodrama” is foundational to our training of trial lawyers at Trial Lawyers College.41 The method is simply a role-reversal process in which the protagonist takes on the role of whoever represents the person of power or influence in his or her life drama—for instance, one’s father or mother. All of us are well adapted to this method of self-discovery. Don’t we remember when, as children, we played different roles in make-believe? Psychodrama could work for police officers as well as for lawyers.
The first question for every police officer is “Why did I want to become a police officer? What happened in my life that causes me to seek power over others? What has happened to me that gave birth to my need to dominate?” Our life-forming experiences usually came at an early age, and as adults we often find ourselves still acting them out. Any of us who have felt helpless in the presence of authority never want to feel such pain again. If I can understand why I’m prone to aggression, I will be better able to identify the underlying personal issues I’m trying to solve by becoming a police officer, and I’ll become a better officer. Such group experiences can change how we see others and ourselves as well. Such group work among caring people changes lives. Every year, as part of his or her continuing education, the officer should return for further group work. Too often we forget what we’ve learned and slip back to old, dangerous ways that lie at the foundation of our personalities.
7. Reform the grand jury process. The grand jury is a favorite instrument of the prosecutor by which criminal proceedings against an accused are begun. Its abuse by prosecutors is legion. A grand jury is grand only because it typically has from sixteen to twenty-four members. Its function is not to try the accused for any crime, but to investigate and determine if there is probable cause to charge the accused with one or more crimes.
Prosecutors revel at the power grand juries provide against a so-called person of interest, that is, one who is being investigated for possible crimes. As we remember, in the Fieger fiasco the feds tormented Fieger for over two years with an ongoing grand jury, sometimes calling but a single witness a week. One of the primary purposes of that process had been to destroy with fear and financial ruin both Fieger and his partners and employees.
Under rules that are in existence today, like the unclean, “the subject’s” lawyer must wait outside the grand jury room while his client is being interrogated by the prosecutor and the jurors. If “the subject” testifies, he or she does so without an attorney present to protect his or her rights. Witnesses are questioned endlessly by the prosecutors and are often dragged across impermissible lines with no judge to intercede. No judge is present. We remember in the Fieger case when the prosecutor had Fieger’s former secretary under oath before a grand jury. With no one to stop the prosecutor or protect the witness, he questioned her about any possible sexual encounters she’d had with her boss, a matter totally irrelevant to any issue before the grand jury, and an obvious abuse of a helpless witness. Moreover, grand jury proceedings are secret, and a unanimous verdict is not required for an indictment. I ask a simple question that has been asked endless times over the centuries: How can any citizen prevent being wrongfully charged with a crime when the prosecutor, and the prosecutor alone, can decide what facts the grand jury will hear, and how and on what issues the witnesses will be questioned? In ways, the grand jury is the remnant of the inquisitions of old that included the persecution and the burning alive of thousands of innocent women as witches.
Reforms for the grand jury have often been proposed.42 But as usual they’ve been defeated by Power’s insurmountable fence of precedent, and few offered reforms have been adopted. The more important reforms should include the right of counsel for any witness called before a grand jury. And the failure of the prosecutor to present known evidence to the grand jury that substantially tends to exonerate the accused, whether such failure is intentional or by oversight, should bar the prosecution.
8. Outlaw the testimony of jailhouse snitches. What do we do about the predictable lies offered by nearly every jailhouse informant as a witness for the prosecution? We refer to them as “snitches,” those fellow inmates of the accused who will testify that the accused admitted the crime to them. The U.S. Supreme Court held in a case known as Giglio that the prosecution’s failure to reveal to the jury that a witness has been promised leniency or some other benefit in exchange for his testimony was a failure to present all material evidence to the jury, and constituted a violation of due process, requiring a new trial. That rule has been expanded in other cases as even our most conservative courts attempt to remedy wrongful convictions based on the known false testimony of jailhouse snitches.
Sadly, the high court’s cases have had little effect in preventing the lies of snitches from contaminating a fair trial. If I paid a perjurer thousands of dollars to testify for my client, I’d be sent to prison and relieved of my license to practice law. I’ve never known a snitch who wouldn’t gladly pay those same thousands, if he had them, to get out of prison. Instead, he purchases his freedom or a reduced sentence with his lies.
Despite the efforts of our courts to protect against snitch testimony, prosecutors have ways to circumvent the problem. Before the snitch takes the stand, the conversation between the snitch and the prosecutor will likely sound something like this:
PROSECUTOR: Remember, Joe, when the lawyer on the other side asks you if I’ve made you any promises your answer is “No,” right? And I haven’t, right?
JOE: Right.
PROSECUTOR: You are doing this because you believe it is in the best interest of justice. That it’s your duty to reveal these facts, right?
JOE: Right.
PROSECUTOR: I’ve told you to tell the truth and only the truth. Right?
JOE: Right.
At trial, on the cross-examination of Joe we hear the following:
DEFENSE ATTORNEY: The prosecutor made promises to you, didn’t he?
JOE: No, he never promised me nothin’.
DEFENSE ATTORNEY: You expect to receive some benefit from your testimony here, don’t you?
JOE: No, I’m just doin’ what’s right.
In fact, even if the prosecutor made no promises, he will likely provide some benefit to this cooperating witness down the line, and both he and the snitch know it. We tend to help those who help us. The star of Giglio shines down on us from on high, but rarely can it penetrate the thick cloud that covers the games some prosecutors play to obtain a conviction.
On the other hand, judges may attempt to dilute the effect of the snitch’s testimony by advising the jury that they should receive it with suspicion. But the jury has heard the lie. And the prosecutor, to ameliorate the judge’s instruction, will spread frosting over the snitch’s cake of dung. The prosecutor will say to the jury things like “We have the duty to present to the jury all of the evidence. What would you think of us if we knew of Joe’s testimony, but we didn’t give it to you to consider? It’s the defendant here [he points with scorn to the defendant sitting frozen next to his lawyer] who’d jump up with joy if you’d disregarded Joe’s testimony. But we leave it to you. We trust your ability to judge the credibility of the witnesses, including Joe’s.” The games go on despite the best efforts of the high court to provide a fair trial. Too many innocents are sent to their deaths on the perjured testimony of snitches. A civilized society can no longer permit such testimony. The only way to stop these games is to simply, in the furtherance of justice, outlaw all snitch testimony, that is, testimony as to what another inmate supposedly confessed to the snitch while in custody.
9. Relief for the accused when, at trial, the prosecutor hides favorable evidence from the accused. As early as 1963 the United States Supreme Court handed down a landmark case now known simply as Brady in which the court ruled that prosecutors were required to reveal to defendants all exculpatory evidence, that is, evidence that tends to support the defendant’s innocence. But too many prosecutors simply play with that high court’s words, ignore their duty, claim they forgot, keep secret the evidence favorable to the defendant, and wait until they’re caught (if ever) and then argue that the withheld evidence wouldn’t have changed the result anyway and that no harm was done. A defendant simply relying on Brady or Giglio for a fair trial is already seeing the prison gates swinging open.
These enlightened Supreme Court decisions do little more than comfort the high court judges so they can sleep believing they’ve done all they can to make trials fair. Still, some judges like to play their own games. What judge on the court couldn’t argue that the withheld evidence wouldn’t have made a difference in the outcome of the trial? But a judge is not a juror, and if the withheld evidence was important enough for the prosecutor to hide it from the jurors, might we not conclude that it was important enough to change the outcome of the case? When there’s been any intentional Brady violation, the case must be returned for a new trial or dismissed.
10. Dealing with the dangers of the “courthouse club.” Over time local police, prosecutors, judges, and defense attorneys do their work together. They have to. The prosecutors know that when their opponents, the defense attorneys, need a little consideration in a case it will be reciprocated down the line. And defense attorneys find themselves pleading innocent clients guilty, believing they’ve provided the client with “the best deal possible,” and prosecutors agree to more advantageous deals for those who are members of these informal but fully functional courthouse clubs. I know highly paid, private criminal defense attorneys who haven’t tried a jury trial in years but whose reputations are “the lawyer to go to if you’ve been charged with a serious crime.” Many judges look on, knowing how the game works. But such cooperation usually ends in guilty pleas, and the judge’s caseload is thereby lightened. In the end, this “brotherhood” among opponents and the judge is a constant threat to justice. (It will be further considered in the following paragraphs.)
11. Curing the evils of overcharging. What can we do about the inherent evil of overcharging? I’m talking about charging a person with multiple crimes that arise out of a single incident. The prosecutor’s motivation is to force the defendant, guilty or not, to plead guilty to one or more of the charges in exchange for a shorter sentence. We already know why innocent people plead guilty: They know they’ll face jurors who believe they’re guilty because jurors trust that the prosecutor wouldn’t charge innocent persons. They know that jurors often compromise—acquit on some, even many, of the charges, but likely find the accused guilty of something. They know they will be appointed a public defender who convinces them, and rightly, that their conviction is foregone. They know that if they lose they will receive no mercy from the sentencing judge. Their lives will be truncated, their reputations lost, and the light of their future extinguished. Perhaps they will never see their spouse or children again, and their parents will die while they’re in prison. Given the crowded dockets in most jurisdictions, in some cases innocent persons can plead guilty to a charge or two and get out of jail before their trial is even set.
Judges have the power to force the prosecutor to elect the one or two counts the prosecutor will present to the jury. But we remember that most judges were former prosecutors. Rarely do any judges insert themselves into the prosecutor’s case. And, as we know, judges in the state courts are also politicians. Voters are enamored by those who have a record of being “tough on criminals,” and judges are unwilling to take on the prosecutor lest one day the prosecutor-hawk sets its talons into the judicial bird. In the federal courts the judges are appointed for life by Power, and although theoretically they’re not beholden to Power, they are, with rare exceptions, congenital members of the power structure.
Prosecutors often charge an accused with a felony carrying a prison sentence of years rather than a misdemeanor that arises from the same facts and is punishable by a few months or less in jail. For example, maybe a man has been charged with stealing an item from a local store. The prosecutor may charge the defendant with grand larceny, asserting that the stolen property was valued at an amount that lifted the offense to felony. In such a case the prosecutor doesn’t need to display a startling array of talents to obtain a conviction. And any clear-thinking defendant, even if he’s as clean and pristine as an early morning lily, will rush to make a deal that will free him in short order rather than run the risk of a felony conviction that will imprison him in some stinking hole for years.
Legislators must step up and chink these gaping holes in the judicial house that deprive thousands of American citizens each year of their constitutionally guaranteed right to due process. I offer little hope. When was the last time the people turned to the politicians for justice and justice was delivered?
A guilty plea to a criminal charge against a citizen must be examined with suspicion that the plea was obtained through force, intimidation, or other impermissible means. Is the plea the result of overcharging? Was it voluntarily given? Indeed, every guilty plea must be made to stand on its own after careful scrutiny by the judge. An immunized hearing before the judge (one in which the testimony of the accused is privileged and cannot be used against him) must be offered to the accused, a hearing in which the accused is represented, and encouraged to explain why he or she has agreed to the confession. Threats arising from an overcharged indictment, unconscionable delays in trials, incompetent counsel, and other motivations for a guilty plea must be discovered and, if they exist, dealt with appropriately. Justice requires no less. Due process demands it. And a guilty plea that was not voluntary to its hair roots must be set aside.
Yes, there are great judges out there. Great judges are like great painters or great chefs, or great fiddle players. The great ones cannot be great unless there are masses who never reach that airy status. I have been privileged to work with some great judges who have made me proud of our system of justice. They are the rare gifts to an otherwise suffering judiciary. All judges, both trial and appellate judges, have power, and the great ones will use it in creative ways to bring fairness into the case. If they do not dismiss the redundant charges, they can discuss with the jurors why a prosecutor overcharges, why overcharging is fundamentally unfair, and how the jury, if it chooses, can consider such overcharging as evidence that the prosecution has a weak case. Indeed, it’s not that judges themselves have no power to bring about a better sort of justice. Instead, prosecutors and judges are more likely to form their own informal accords, the unwritten but fully understood covenant of which is to take care of one another.
The criminal defense bar is as much to blame for overcharging as any of the other members of this cozy congregation of judges and lawyers. I have known a few, but very few, criminal defense attorneys who have taken on the bad state court judge head-to-head when the judge ran for reelection. It takes courage to go to the voters with a story of the judge’s inaction, abuse, or incompetence. But that’s what elections are for. If defense lawyers have complaints, they cannot hang back and whimper like shivering children facing King Kong in a back alley and still pretend they are attorneys dedicated to the defense of the damned. It is their duty to the judicial system to take action, and if they muster the courage they can be successful. Even an unsuccessful attempt to unseat a state court judge will often have palpable affirmative results with that judge in the future.
12. We must get politics out of our judiciary. I acknowledge the power of the jury. However, judges are still sovereign in the courtroom. They determine what facts the jurors will hear, and what laws the jurors will apply, and how. Except for an acquittal, the judge can set aside a jury’s verdict and grant new trials. As we’ve seen, a judge even has the power to dismiss a just case for civil damages. I am thinking of the Singer case. In court the judge is still the royal ruler, not a mere arbiter of fairness like a referee in a boxing match.
One may rightly ask, who are these judges, and why would any lawyer give up lawyering to become a judge? Some who found it difficult to make a living in the practice of law ascended to the bench. Some felt they lacked the talent or the emotional makeup to be successful as trial lawyers. Some bore a genuine desire to do good. And some, like some cops, had a yearning for power.
The judicial hide is tattooed with politics, along with the debts that politics produces. The way we select judges fails to create a judiciary in which a free people can enjoy their promised justice. Yes, there are numerous honest judges who strive to follow their own moral compasses. But even the best of our judges are riddled with conflict and often are compromised in resolving those conflicts. I am again put in mind of the admitted conflicts suffered by Judge Winder in the Singer case.
What to do? I say judges should be drafted at random from the trial bar for a limited term.
The drafted judge would serve for, say, three or four years and then return to private practice. The judge would be paid a reasonable salary and would also be rewarded by becoming a better lawyer, one who has experienced the workings of the judicial mind firsthand. He or she would spend no more time as a drafted judge than doctors spend acquiring their specialty. The names of all those who try court cases would be put in the canister and drawn as needed in the same manner that jurors are selected. (If by law we can demand that ordinary citizens give up parts of their lives to serve as jurors, can’t we, with greater justification, require trial lawyers, who make their living in the courtroom, to contribute back to the very system that supports them?) The names of those who have served as trial judges would also be placed in the hopper from which, by random selection, our appeals court judges would be selected, but for a shorter term. And the political beast, Power, that once influenced—even owned—our judges will sit by the wayside whimpering and scolding, emasculated.
Some will argue that this method will open the door to individuals none of us would want on the bench. But we are suffering from a judiciary that includes tyrants and fops of every dimension, and we can’t get rid of them because they’ve been appointed for life or they’re better politicians than they are judges and are continuously reelected. Better that we have a bad judge for a short term than a bad judge for a life term.
If we need a couple more judges, a dozen or a hundred more, we’ll draft them until their dockets are current. Those disgraceful delays that the accused or the injured must endure to finally get their chance at justice will no longer be part of our appalling judicial history. And bullying police and prosecutors will no longer find it possible to carry on their power games in courtrooms in which the judges are members of a cozy courthouse cabal. Moreover, we’ll no longer be judged by men or women whose addiction to power led them to seek judgeships in the first place. Our new judges will be drafted.
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Before I leave you I have one last plea: We must get Money out of politics just as we rid our bodies of killing cancers. We are diseased by Money. We are no longer a free nation if Money can buy our representatives while we stand in line to vote like the proverbial cattle at the killing chutes. Our elections on all levels must be publicly funded.
I love my country. I abhor those who use their power to defeat its promises to the people. Over my lifetime I’ve seen the Power-owned media capture the American mind. The endless invasion of propaganda has eventually prevailed, and its message has become the accepted truth of a brainwashed nation that we are free, that the police and prosecutors are trustworthy and will protect us, and that in America there is liberty and justice for all. Such is a mythology that enslaves.
Instead, as we know, only the few, depending on their status and wealth, have even a far faint shot at justice. By adopting some of the solutions offered here we will begin our work toward a culture in which the criminal justice system is no longer a tool of Power to intimidate, control, and abuse the powerless. We remember the ominous prediction attributed to Sinclair Lewis: “If fascism comes to America it will be wrapped in the flag and carrying a cross.”
We’ve come to the end of this trip together. I’ve discovered and learned much in this writing. And I’m grateful that you joined me in this journey. The victories of justice occur from small realizations that eventually seep into the collective mind. When I began my term on this earth, women were chiefly seen as the keepers of the home, the nurturers of children and their other child, the husband. Today women have joined us as partners in the blessed struggle for equality and freedom. In my lifetime I’ve seen minorities courageously fight their way up until they can breathe more comfortably in the company of their oppressors. These wars, won for a more just society, have come at the cost of much suffering and many lives. The commitment to that battle must remain at the forefront of our passion.
I hope that what we’ve shared together will be shared with others, and that we will find ways to speak to the many who have heretofore found themselves alone. None can predict where America will go from here. But the road we travel is ominous. One thing I know: An honestly informed nation can be trusted to eventually do right. Justice is the petulant child of truth.
And so, dear people, as the old man told the boy who clutched the helpless bird in his hands—I leave this precious bird of justice in yours.