The Worst Prosecutors in America

Except in the most egregious of circumstances the MSM is incapable of uttering an unkind word about a prosecutor. This list of the “10 Worst US Prosecutors” from the Bennett Law Firm is a refreshing perspective in contrast to the normal slavish praise poured on them. The usual excuse of, “I had to prosecute, I had no choice,” wasn’t good enough here.

The Top Ten Worst Prosecutors in America

1 Alberto Gonzales

2 Terry D. McEachern

3 Michael Nifong

4 Charles C. Foti, Jr.

5 Jeffrey Auerhahn

6 David McDade

7 Charles Sebesta

8 Randall Reynolds

9 Bill Peterson

10 Rocky Delgadillo

The Facts About Jury Duty

Article from Jeff Maehr:

If you hear a case, and you believe it is morally wrong to convict a defendant, or it is a vendetta, even if a law was broken, you have the right of "Jury Nullification." You can nullify a possible conviction which would be held against someone, by finding the defendant innocent, even though the law and evidence says he is guilty. This is a fact proven by case law.

The jury is there, by design, "to prevent oppression by the Government" and to "protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority." Duncan v. Louisiana,
391 U.S. 145, 155-56 (1968).

When the Jury is Prevented from Knowing the Law

How can justice be served when the jury is prevented from knowing the defendants side of the story? Even more unconscionable is when the law is on their side and the judge prevents the jury from hearing that information. Newreview.com takes a look at a federal marijuana case and includes an honest nullification discussion:

He was less generous whenever the defense tried to bring in what they felt was at the heart of the case: Proposition 215 and the fact that the people of California had rejected federal law and adopted their own medical-marijuana law.

He also struck legitimate considerations:

Indeed, Judge Damrell told Serra he had “crossed the line” after Serra asked the jury to consider that the case was biased, a political prosecution emanating from Washington, D.C. Such bias, he said, constituted reasonable doubt.

The couple was convicted in less than three hours and will appeal. The penalties are absurdly harsh, and enough by themselves to cause any thinking man to nullify:

The defense says there were never 100 plants at any one time. Remember, the DEA only found 34 when they raided the couple’s home, which they argue is consistent with the “reasonable personal use” provisions of Proposition 215. But federal law allows the jury to add up all the plants that were grown “over the course of the conspiracy,” in this case three years.

Beating the Perjury Trap

The grand jury process currently gives too much power to the prosecutor. A prosecutor presents their case in secrecy and can show any evidence they want to get an indictment. No one representing the defendant is present.

The proceeding is so one-sided that the grand jury rarely goes against the wishes of the prosecutor. So what’s the point of this charade? This quote is by former Rep Mike Martin from Wikipedia: "A grand jury is nothing more than a perjury trap. They drag you in by court order, won't let you have an attorney present, tell you the Fifth doesn't apply because you are not accused of anything, then slap a felony charge on you at the end because you deny an accusation. It goes against everything our forefathers intended when they set up America's judicial system".

But there is some good news on that front:

In a decision that is drawing notice throughout the criminal defense bar, the U.S. Court of Appeals for the D.C. Circuit recently held that grand jury witnesses are entitled to review their testimony in ongoing investigations.

Defense attorneys characterize the ruling as among the most significant grand jury reforms in recent memory, one that could induce more witnesses to testify, eliminate misstatements that lead to perjury charges and curb prosecutorial overreaching.

Another False Confession Obtained Under Duress

The DNA doesn’t match, the story makes no sense, and another man has already confessed to the crime. Read the entire story here:

Two law professors who study the false-confession phenomenon, Steven Drizin and Richard Leo, claim that police detectives “typically close” an investigation once they obtain any confession, “even if the confession is internally inconsistent, contradicted by external evidence or the result of coercive interrogation.”

Public Defender in Jail for Properly Representing His Client

The judge wanted this public defender to go to trial with less than a day of preparation and then jailed him when he refused. Instead of being an impartial third-party, the judge has the same pay master as the prosecutor:

A controversial Portage County judge has drawn the ire of national and state lawyers associations because he ordered the arrest of a county public defender. Judge John Plough ordered sheriff's deputies Wednesday to take Assistant Public Defender Brian Jones into custody because he was not prepared to go to trial.

He was held five hours before he was released on bond.

This is the second time Plough has ordered the arrest of a public defender, said Dennis Lager, the county's chief public defender. He said Plough also threatened to take similar action twice in 2006.

In each case, Lager said, Plough expected the lawyers to go to trial within a day or so of being assigned to the cases.

The Nation on Incarceration in the US

Nonviolent drug offenses involving trafficking or possession (the modern equivalent of rum-running or getting caught with a bottle of bathtub gin) accounted for 31 percent of the total...

Inevitably a single conviction leads to economic disenfranchisement and, no surprise, leaves the offender working in the extra-legal economy. Even a rehabilitated offender has little chance of finding legitimate employment.

The white applicant with a prison record was half as likely to be called back for a second interview as the white applicant without. But the black applicant without a criminal record was no more likely to be called back than the white applicant with a record, while the black applicant with a record was two-thirds less likely to be called back than the black applicant without.

The drug war has created a permanent underclass of citizens and has done nothing to stem the flow of drugs. In fact, prices are lower then ever. Not to mention that the war is unbelievably expensive, costing tax payers over $40 Billion per year an estimated $40,000 for every drug arrest.

Secret Laws, Secret Briefs – Fighting Illegal Wiretaps Blindfolded

This LA Times article about lawyer Jon Eisenberg describes the difficulty of a getting fair trial when the government has decided an issue involves national security.

In most of the cases, including Al-Haramain's, the government has contended that any disclosure about the surveillance program would reveal state secrets and has refused to say whether the plaintiffs were wire-tapped. It has then moved to dismiss the complaints.

Essentially the government won’t say if wire tapping has occurred and if it did Al-Haramain isn’t supposed to know about it anyway. With the ability to arbitrarily declare things state secrets and then stone wall attempts to uncover what happened, no one knows the extent or legality of the program. It follows that the rules used to cover-up wire taps now will inevitably be expanded to other forms of surveillance and monitoring.

Certainly this case would have died like the rest but the government released documents it shouldn’t have:

But in the Al-Haramain case, the Treasury Department inadvertently disclosed National Security Agency call logs stamped "top secret" indicating that the charity and two of its attorneys had been surveilled. Last year, U.S. District Judge Garr King ruled that the logs -- referred to in the court papers as "The Document" — gave the charity standing to sue in federal court.

Surveilling the lawyers? Unquestionably, this overreach is why oversight of these activities is necessary. Doing an end run around attorney-client privilege and covering it up by invoking state secrets is plain sleazy.

Luck was the only reason that the government may be held accountable. No doubt the sketchy details of the program that have been released are ugly, clearly, then the things we don’t see must truly be awful.

Teach jurors their rights and power

Any perceived attack on our freedom of speech is met with a firestorm of protest from bloggers and the media. Yet full frontal assaults on jurors rights are met with a shrug. Most people are not even aware of their power to decide if the law is a good one.

Very few citizens have the opportunity to influence legislation; however the jury box is the great equalizer, where any one can have their say on the law. Ultimately, citizens can prevent erosion of all of their other rights through jury nullification. Our founding fathers understood how a citizen jury can prevent tyranny, and cited the deprivation of the “benefits of trial by jury,” in our Declaration of Independence as one of the King’s “injuries and usurpations.”

This letter is a rare example of the issue being mention in the press:

Jury nullification is an integral part of our judicial system, serving as one of the checks and balances required by a free society. The fact that it is unknown to most jurors has contributed greatly to the decline of our court system.
...
In 1991 FIJA National promoted the first Jury Rights Day celebration, commemorating the acquittal of William Penn on Sept. 5, 1670, by an independent jury, on charges of preaching an illegal religion to an illegal assembly. The judge fined and imprisoned the jury for refusing to bring in a conviction, but a high court established that jurors may not be punished for voting their consciences.

When your accuser is a machine...

you should still have the right to face it. Or in this DUI case, to examine the source code. From ArsTechnica:

One of the common criticisms (which is also made of voting machines) of breath devices is that the "state-certified" models are updated even after they are certified. The companies that manufacture the machines make tweaks, bug fixes, and even add new features, but the machines are not generally recertified after every single source code change. This means that any given machine could potentially be running non-certified code, code which may or may not have errors.

Are jurors/judges aware of the standard deviation of these devices? It would be a victory for liberty if these tools were drowned out of use by cost prohibitive requests for discovery and the constant need for recertification.

Errors or Malicious Prosecutions?

For one group of innocent death row inmates nearly two-thirds were there due to intentional deception by the prosecution:

My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.