Guilty before proven innocent, thuggish prosecution tactics by the feds

The Kaleys simply want to use their own money to retain counsel of choice to defend them at trial," said one of their attorneys, Howard Srebnick of Black Srebnick Kornspan & Stumpf in Miami. "The government is interfering by freezing their assets, including the equity in the home they purchased more than a decade ago, without giving the Kaleys an opportunity pre-trial to confront witnesses and present evidence to establish they have committed no crime."

The Kaleys set aside about $1 million to pay attorneys by taking out a second home mortgage and cashing certificates of deposit. But prosecutors claimed the money was ill-gotten gains. They charged Kerri Kaley stored the medical equipment in the family's garage. Her husband was indicted after she refused a plea deal. Prosecutors said he knew about the conspiracy and managed the illegal profits.

On the face of it, this charge is absurd. As one commentator at the WSJ law blog asks, “he defendants make a good argument under the 5th and 6th. How can the government freeze assets BEFORE proving they were “ill-gotten”? That’s crazy!” In other words, in these cases, guilt is assumed.

Like many other corruptions of civil liberties, asset seizures got their start in drug cases:

Miami criminal defense lawyer Jane Moscowitz, who’s representing Miami criminal defense lawyer Ben Kuehne against money laundering charges, says that bad rulings in drug cases “eventually come and pollute the prosecution of white-collar cases.”

The linked article also touches on the cost of defending white collar charges. Just for document review alone costs are over one million dollars. We touched on how costs can affect the decision to settle in earlier posts. What chance does an individual stand against the resources of the state? Almost none, which is why no matter what the charge is, the only options for most people, is to cut a deal. Almost no one can afford justice; any win would be a pyrrhic one.

More DOJ Idiocy - Now They Attack Lawyers

Is there any Shakespeare line used out of context more than Dick in Henry Vi’s “first thing we’ll do, let’s kill all the lawyer”? In the context of the play it is clear the line is used to express the yearnings of the ignorant masses as they mistake anarchy for freedom. Dick the butcher sees the rights of man and the legal process, as standing in the way of his glorious rebellion. The line is a warning against anarchy; it’s not a society that anyone would want to live in.

What would happen if lawyers were not able to vigorously represent their client? If the State turned from prosecution suspected criminals to going after their lawyers? When the legal process is subverted for expediency then justice is perverted.

This is the case with Miami lawyer Ben Kuehne who has been indicted on money laundering charges by the DOJ. Since they can’t kill the lawyers, throwing them in jail must be their next best alternative:

Taking the podium, Kuehne waited for the rousing applause to die down, and then began his acceptance speech with a brief discourse on the importance of justice. “The U.S. is fortunate that our system of justice is premised on the ability of the people to rely upon the advocacy of lawyers,” he said. “Our constitution guarantees that right, a right that is at the core of our system of justice.”

Kuehne spoke not only to his audience of criminal defense lawyers, but also to his case, which some say sends a discouraging message to lawyers who take large fees for defending drug dealers. Roy Black, the lawyer who represented Ochoa Vasquez in the underlying drug case, made $5.2 million; Kuehne, hired by Black to vet the funds used to pay Black’s fee, made $200,000.

Kuehne went on to allude to John Adams, “a patriot who was called a traitor” for defending British soldiers who were charged after the Boston Massacre, and former Supreme Court Justice, Hugo Black, who said that a democratic society requires lawyers who will defend unpopular clients and causes. “We live in a time that is not kind to the justice system,” said Kuehne, “when the right to counsel is under attack, when those who oppose government overreaching are viewed as trouble. Today, it’s a recurring problem that, within government circles, lawyers are the problem.”

DNA is Not Infallible

DNA is portrayed in movies and real life as the gold standard of evidence. DNA found at a crime scene is incontrovertible proof that the persons whose DNA matches the sample was there. But, what if the odds for certain DNA matches were really only 1 in 3?

This was the case in a recent California rape conviction of a 70-year old man for a crime committed over 30 years ago. Without an eyewitness, without a medical examiners testimony, without the other likely suspect having his DNA tested, and without the victim herself identifying John Puckett as her rapist, he was convicted based solely on flimsy evidence acquired through DNA data mining.

How could that happen? Simply, the prosecution suppressed the real odds and the jury was told the odds of a false match were considerably smaller than 1 in 3. They were told it was 1 in 1.1 million.

The LA Times summaries the semantic tap dancing the prosecution had to go through to secure a conviction:

The chance that two unrelated people will share the same 13 markers can be as remote as 1 in a quadrillion -- a number with 15 zeros. Because the match in Puckett's case involved only 5 1/2 genetic locations, the chance it was coincidental was higher but still remote: 1 in 1.1 million.

But Barlow thought this figure vastly exaggerated the strength of the evidence. It did not take into account how Puckett had been identified: through a search of a large database.

The general-population figures used by prosecutors portray the odds of matching crime-scene DNA to a single, randomly selected person.

But because database searches involve hundreds of thousands or millions of comparisons, experts say using the general-population statistic can be misleading.

Think of a lottery. If you buy a single ticket, your chances of hitting the jackpot are remote. If you buy many tickets, your odds improve with each purchase. In Barlow's view, the prosecution in effect bought hundreds of thousands of lottery tickets to find the match with Puckett. She contended that this greatly increased the odds of a match to an innocent person.

Barlow argued during pretrial hearings that the jury should be told about the recommendation of two leading panels of scientific experts, one convened by the National Research Council and the other by the FBI. Both committees settled upon a statistical remedy to adjust for the many individual comparisons made during a database search. It has been widely but not universally embraced by scientists.

In every cold hit case, the panels advised, police and prosecutors should multiply the Random Match Probability (1 in 1.1 million in Puckett's case) by the number of profiles in the database (338,000). That's the same as dividing 1.1 million by 338,000.

…

Through dueling experts, the prosecution and defense offered jurors a dizzying array of numbers to consider in weighing the DNA match.

A "likelihood ratio" presented by a prosecution expert placed the chance of a coincidental match at 1 in 1.7 million. A "combined probability of inclusion" put it at 1 in 152 billion.

The numbers all pointed to the virtual certainty that the DNA at the crime scene was Puckett's.

In an interview after the trial, Ranajit Chakraborty, the prosecution's DNA expert, told The Times that he generally favors giving jurors the database adjustment. He did not present an adjustment in this case because the judge, like most others, would not allow it.

The full article is well worth reading since it shows the danger of making convictions solely on DNA.

High-tech methods of crime scene analysis will make it important to be increasingly skeptical of the proof presented. It’s only a matter of time before DNA will be taken from every crime scene and analyzed. Around that time it will be the MO of the smart criminal classes to leave someone else’s DNA at the scene to throw the investigators off. The odds may be several million to one that DNA matches, but that shouldn’t mean guilt is certain.