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The Federal Conviction System
Over the years, Ricochet’s members who practice law have occasionally mollified our common predilection for lawyer jokes by providing examples of honest-to-goodness Justice in action. At the local levels, at least, American judicial systems seem to work now and then; even if other first-hand experiences among Ricochetti have been downright depressing.
Would anyone care to defend the federal criminal justice system? Mark Steyn has written many times that US courts at the national level boast a conviction rate that would impress brutal third-world dictators.
You have the “right to a fair trial,” but U.S. prosecutors win 99 per cent of the cases that go to court — a success rate that would embarrass Kim Jong Un and Saddam Hussein. Indeed, the feds win 97 per cent without ever going near court.
Are these statistics roughly accurate? Or does Steyn mistake a subset of cases or federal cases generally?
Steyn claims this is accomplished in some measure by piling on charges for procedural crimes and other crimes unrelated to the reason for the arrest. Some charges have more merit than others.
You’re facing 47 felonies adding up to 397 years in jail. So you agree to a plea “bargain.” Because otherwise you risk a jury that wants to show how Solomonic it is by acquitting you on 44 counts but convicting on three — enough to destroy your life. The U.S. Attorney operates on the same principle as the IRA, who, after the Brighton bombing, taunted Mrs. Thatcher that they only had to be lucky once; she had to be lucky every time.
Expenses are another reason nearly all defendants at the federal level agree to plea bargains. Is this an avoidable situation?
Was the conviction of Conrad Black emblematic of common procedural practices? Or can other perspectives from inside the federal system offer more confidence that real justice is normally served?
Published in Law
I read Black’s book, “A Matter of Principle.” and it is enraging, just as I could not sleep after reading Papadopolis’ book, “Deep State Target.
https://www.amazon.com/Matter-Principle-Conrad-Black-ebook/dp/B0090NU4X6/
https://www.amazon.com/Deep-State-Target-Crosshairs-President-ebook/dp/B07L8MBZNC/
Both describe how “Lawfare” is impossible to combat in this era. We need a new Church Committee.
My understanding is that Prosecutors are not looking for a win – instead justice and truth (anyone who has read Licensed to Lie, or Conrad’s book, I hope you didn’t choke on your coffee )
i was at a trial recently where the prosecutor moved to exclude a witness’ testimony as the defense attorney was “late” with discovery.
If a prosecutor is seeking truth, why would any of them, with a straight face, move to suppress testimony?
I think in most professions, the professionals keep a great distance from reality–too painful. Instead, they take refuge in procedures. For many, it is all a game. You can’t get too close to the clients (for many reasons) so you end up with a portion of cynicism.
I never understood the logic by which you can be tried in a state court and in a federal court for the same crime. So much for “double jeopardy.” It seems it was decided that the doctrine does not hold for different sovereignties, and states are sovereign and the federal government is sovereign, so tthere ya go. Andrew McCarthy explained that therein lies the reason Federal trials go first. If they ever did fail, you get a second chance to convict of crime in state court. (Or something close to that: never trust my memory.) This is different from being charged for the same act in criminal and civil court (a la O.J. Simpson).
It seems the courts have no soul, which may make some sense in that we say “justice blind” but also that “the eyes are the window to the soul.”
My personal experiences have not been good: Assaulted by an officer for jaywalking while homeless and a public defender insisting I plead guilty to the charge of assaulting the officer, and later a child custody case made me realize that the justice system is disassociated from reality while maintaining a hubris about its mandate.
I can only imagine that on a larger scale where there’s politics and power involved it’s even more a choreographed drama than an effort to seek justice.
As for lawyer jokes, I asked a lawyer in my Kiwanis Club what his favorite lawyer joke was, he shared this: What do you call 1,500 lawyers at the bottom of the ocean? A good start.
It stands to reason that, where abuses exist, it’s likely someone will write a book about it. The aforementioned Licensed to Lie is an excellent example, and chronicles a frightening litany of prosecutorial abuses.
It also stands to reason that any system that results in the incarceration of mass quantities of plain ol’ dirtbags, white collar criminals, and assorted scam artists and crooks does the country far more good than harm.
It strikes me as rather interesting that something that is essentially good–a conviction rate–can be viewed in the negative. Steyn is certainly correct that charges may be added to charges and result, to a degree, in padding statistics. However, it’s important to note that a guilty plea–of which there are many– is also considered a “conviction.” In other words, compiling sufficient evidence to make a guilty plea palatable to a defendant (who, after all, has a choice) is a good thing and is a significant reason for the conviction rate.
I thinks there’s lots of stories that don’t make it into a book.
We’re all guilty of felonies; mortgage fraud would be my go to if I was looking to nail someone. A motivated prosecutor with unlimited resources? There’s something for all of us to plead guilty to
There are several examples of prosecutions by the Mueller team where the plea wasn’t palatable, but continuing to defend was impossible due to the financial burden an unlimited prosecution budget can overwhelm a single citizen. Add to that threats to the family and even a [CoC] sandwich may appear to be ‘palatable’
A 99% conviction rate does not reflect the realities of human nature. In a system truly devoted to justice and a legal presumption of innocence, police and lawyers would occasionally make mistakes (in accusation as well as prosecution) and juries would sometimes give defendants the benefit of the doubt.
If only 3% of the accused even see hope in going to trial, then there hardly needs to be a judge and jury. Why not send citizens directly to prison on an Attorney General’s recommendation?
Furthermore, the most severe criminal offenses for which we most need prisons (or executions) tend to regard local laws, such as laws against rape and murder. Especially in our current hyper-regulated society, relatively few federal offenses seem to regard public safety so much as bureaucratic control. [Hoyacon corrected me on this.]
The worst example of this in my opinion is the fate of the police officers in the Rodney King matter. King was driving with a passenger in a manner that attracted the attention of CHP officer Melanie Singer. She pulled them over. I don’t recall if her husband, also a CHP officer, was present at the scene. King would not obey her commands and she was preparing to shoot him when the LAPD arrived as backup. They then proceeded to take him down by using batons. There had been a recent case of a fatality from a choke hold and the use was banned. They did take him down, famously while being videotaped by a bystander. He was not seriously injured in spite of allegations otherwise.
The result was the accusation of excessive force based on the videotape. The four were tried on this charge in Simi Valley, the location of the incident, and they were acquitted. Famously, the Clinton Justice Department then tried them in downtown LA on Civil Rights charges and the LA jury convicted them. Clear Double Jeopardy, in my opinion. Stacey Koon, the sergeant who, in my opinion saved King’s life by preventing Singer from shooting him, went to prison partly as a result of her testifying against them. She them retired on a stress disability pension. I sent money to his family while he was in prison.
There was never any accusation that King’s passenger was abused in any way,
I disagree. It’s pure speculation that quantities of innocent people with their lives on the line plead guilty because of financial burdens. The Mueller situation is certainly a special case but, even there the few guilty pleas were acquired well before the expense of a trial and on the advice of counsel.
Federal prisons house a substantial number of scumbags– from kidnappers to arsonists to murderers to Mafiosi to those who commit mail fraud by ripping off 80-year-olds for their life savings. I’m happy to see these folks where they belong. I’m not happy to see an entire system condemned because parts of it are abused by a relatively small number of the overly ambitious.
Then we should condemn the system until the problem of abuse is fixed, shouldn’t we? Wasn’t it at one time a principle of our judicial system, to try to minimize the type of error by which innocent people are punished?
The founders built checks and balances into as much as possible. Lay juries and the continuance of the English common law were meant to keep executive branch overreach in check. But in truth, the ultimate check in the legal system is the code of ethics and sense of honor in the practice of law.
Federal law enforcement involves extraordinary resources and power. The need for honor and rules is that much greater.
When personal ambition and institutional pride overcome honor, it all goes bad. For example, Robert Mueller should have been disbarred for his dishonorable coverup of the convictions of four innocent men set up by Whitey Bulger. He clearly put the image of the FBI ahead of honor. But he glided on, bringing that same lack of integrity to the post-9/11 anthrax case, trying to break an innocent man to declare a win for the institution. And fittingly, he then conducted a viciously petty procedural jihad against Donald Trump whom he knew to be innocent within a month of his appointment.
But powerful institutions invested in his image just as in that of almost every overzealous but successful prosecutor. It is a major failing. The fact that the ACLU and legal academics are more invested in partisan ends than outcome-neutral justice is troubling.
It matters when cops and prosecutors justify breaking the rules to convict someone they deem very bad even if the evidence does not agree. At least, it should matter. The lawless Obama administration compounded the rationalization that they were entitled to abuse the system to defeat a hated political enemy with narcissistic moral preening.
The loss of honor for political or personal gain is a threat to our legal order and freedom. If honor becomes a secondary consideration we are lost.
If you review my original post, it is an invitation to rebuttal of Steyn’s claim.
Instead, you seem to dismiss the presumption of innocence so long as most jailed are scumbags.
Even if we could afford such a rigged system in normal times, it is a system ripe for abuse as Democrats and seemingly half of Americans are willing to weaponize investigations to punish political opponents. If even Republicans are willing to chuck due process for expediency, then we are truly on our way to becoming a banana republic with regular show trials.
We should recognize the positives and expunge the negatives. If you have evidence that “innocent people” have been punished, that’s a problem and should be acted upon with proof. I’m reasonable certain that there is substantial evidence in favor of the conviction of virtually all of the really bad guys in the federal pen.
Your post asked the following:
Did I at least attempt to do that while going against the grain here? And is a discussion of those imprisoned pointing out that the bad guys are clearly not just a matter of “bureaucratic control” unreasonable? That would include the substantial number serving sentences of 15 years or more who presumably were not subjected to “show trials” considering the severity of their convictions.
And nowhere did I dismiss the presumption of innocence. I simply answered your question in a manner apparently unsuitable for accusations that lack specifics as to who in particular was actually “innocent.” It should also hopefully be unnecessary to point out that the Mueller investigation is in no way a proxy for the entire federal justice system.
Steyn raises a question about convictions rates. I attempted to address that and noted that guilty pleas are included in conviction rates–something Steyn was apparently not sufficiently informed to note. Again, show me specifics as to those wrongfully incarcerated in the federal criminal justice system–and I have no doubt some (a few?) exist–and we can discuss cures without condemning an entire system.
Actually, the burden of proof is supposed to be the other way around.
At trial. In these cases of conviction, the burden of proof has already been satisfied. So, in fact, it was the other way around.
I’m no expert, but Conrad Black counts as one, along with several gentlemen featured in Licensed to Lie.
My ex brother in law did three years in federal prison (he was guilty as hell) and he was blown away by how many low-level mortgage guys he spent time with. None of the guys responsible for bringing entire banks to their knees, instead yahoos who had knowingly submitted fraudulent applications. This while Wells Fargo continues to commit fraud, both mortgage and with savings/checking/credit card accounts.
The difference is probably the willingness and ability to pay a fine, something that Wells Fargo (a bank I used to work at and had a lot of affection for) seems to consider the cost of doing business
My impression from my BIL was that the guys he served time with were, in fact, guilty. But a lot of the people continuing to do business are also
As Annefy says, Conrad Black is an example and the focus of Steyn’s article which I linked to (I wouldn’t blame you for not reading everything linked to on Ricochet, which is quite a lot). Mueller’s witch hunt is another.
Holder’s heavy-handed prosecution of the video maker they blamed for Benghazi is another. He was guilty of lesser violations, but targeted for political expediency; whereas Holder let Black Panthers guilty of voter intimidation walk away.
The examples of serious offenders you mentioned are significant. Racketeering laws arguably sacrifice due process for security, lowering standards for proof. But mafia can be a dire threat. Note that most other severe crimes, like arson and kidnapping, are only federal for crossing state lines and are addressed by local police. Most federal convictions involve immigration, drugs, and fraud. You are correct that many of those criminals should be off the streets.
Whatever the crimes, a 99% conviction is, again, unbelievable because it defies the human capacity for error. No profession is so consistently accurate in its preparations. Here that consistency must apply to investigators, lawyers, judges, and juries in sequence… and jurors are presumably not all NASA engineers colluding to convict. Are all of these officers, lawyers, and jurors nearly perfect in their duties?
If this is a problem, it is not a uniquely American problem. Not only Russia and China, but also Canada and Japan enjoy such a high conviction rate. Israel’s is around 93% and the UK’s as low as 80%. Even 93% I could accept as a consequence of only prosecuting sure cases.
The results of the Innocence Project over the years has seriously shaken my confidence in the system and I was a little cynical to start with. George Will penned a great line that opponents of the death penalty should reach out to conservatives with the argument that the death penalty is just another badly run government program. I don’t have ready answers.
If I only prosecute cases I am likely to win, won’t I have a high rate of success? I high convention rate, on its own, cannot be considered a problem. We have to know all the cases that were not pursued.
I have seen pretty significant abuses, however. Reform is needed.
I recent spent some time with anti-dearth penalty folks, including some from the Innocence Project.
I have no moral qualm with the death penalty and was surprised how comfortable I was with anti folks.
But then it occurred to me: the government is both corrupt and incompetent. Damn straight I want smart, passionate people giving them a fight
If even one innocent person pleads guilty because of financial burden, it merits our closely examining the system. And it does happen. This is one of those things were compiling meaningful data is nearly impossible. Particularly with “procedural crimes,” one can easily make a statement based on weak memory or speculation, even if the speaker himself labels it as speculation, only to be presented with facts or allegations that seem to demonstrate that his original statement may have been less than 100% accurate. (And please note the number of qualifiers in that last sentence.) S/he can and may well be charged with lying to a federal investigator, or even perjury. This, tragically, is why many attorneys advise us “never to talk to the police.” And once you’re charged, and unless you’re a multi – millionaire, you can choose to take a plea deal or fight it, probably lose, and even if you win, face financial ruin.
This sort of thing happened to an associate of mine – a case I’ve described at least twice before here. He was ordered by a person with FBI creds to do something that was illegal. He refused, and was charged and convicted of impeding a federal investigation. Thankfully, the appellate court returned it to the trial court for a directed verdict of not guilty, and a finding of factual innocence. The problem? Financially, he’s ruined. All his savings, his business capital, his retirement from a previous employment cashed in. He will have to work to the day he dies.
Remember Michael Ramirez’ recent cartoon? “We’re impeaching Barr for his refusal to break the law.”
Something else I don’t think I’ve mentioned before: A key federal witness committed perjury in trial, and it was amply demonstrated that he had done so. And what happened to him? Right. Nothing.
There is of course a lot of overlap between these two groups, but it is far from complete. The number of convictions that have been overturned based on DNA evidence is sobering, and they’re not limited to capital cases. Every single such case merits close examination: how was a jury convinced “beyond a reasonable doubt” that an innocent person was guilty? Every one, virtually by definition, requires prosecutorial misconduct. A common thread involves perjured testimony, including false confessions.
Agreed. And lying, uncooperative police.
I was blown away when reading about the murder case in Minnesota where the cop shot and killed the young Australian woman. The article, in a matter of fact fashion, stated that the police department was uncooperative in the investigation.
How is that even a thing? And where’s the outrage ?
Randy Weaver is another example of Federal malfeasance in attempting to investigate someone else. Weaver had built a home in the mountains of eastern Idaho. It was little more than a shack but his family was there and bothering nobody. The FBI and BATF was investigating a white supremacy outfit in the area of Hayden Lake.
https://timeline.com/white-supremacist-rural-paradise-fb62b74b29e0
They called themselves “Aryan Nation,:” and the Clinton FBI was very interested in them, BATF agents tried to recruit Randy Weaver, who was not a member, to join and spy on them.
On Oct. 24, 1989, Weaver sold two shotguns whose barrels arguably measured 1/4 inch less than the 18 inch length determined arbitrarily by Congress to be legal. The H&R single-barrel 12-ga. and Remington pump were sold to a good friend who instructed Weaver to shorten the barrels. The “good friend” was an undercover informant working for the Bureau of Alcohol Tobacco and Firearms (BATF), who later told reporters he was in it “mainly for the excitement.”
Eight months after he sold the shotguns, Weaver was approached by two BATF agents with an offer–spy on the Aryan Nations, a white supremacist hate group head-quartered in northern Idaho, or go to jail. Weaver refused to become a government informer, and–six months later–he was indicted on the shotgun charge.
He was scheduled to appear in court but the court date was “somehow” not provided to him and the FBI decided to serve a warrant on him.
Weaver was arraigned before a federal magistrate, who later admitted he cited the wrong law. Out on bond, Weaver went back to his cabin. According to friends who testified in court, he and his wife vowed not to have any more dealings with the courts of the federal government. They would just stay on their mountain.
A hearing was set on the shotgun matter for Federal Court in Moscow, Idaho. The government notified Weaver by letter that he was to appear March 20, 1991.
The rest is at that link. The federal agents killed Weaver’s son and his wife. A deputy Marshall was killed. Weaver finally surrendered and was tried.
The jury deliberated for nearly three weeks, and found Harris not guilty of murder or any other charges leveled against him. They found Weaver not guilty of eight federal felony counts. The judge had earlier thrown out two other counts.
Weaver was found guilty of two counts: failing to appear in court and violating his bail conditions. He was declared not guilty of the gun charge–the seed of all this misery.
The jury expressed an interest in indicting Lon Horiuchi, the FBI sniper who killed Vicki Weaver.
1. There is never a reason to slack on lawyer jokes.
2. Isn’t it a good thing that the feds don’t prosecute innocent people?
3. Yes. The system is a mess. Trials take too long and peoples’ lives are ruined by accusations and investigations and prosecutions that terrorize people to extract groundless confessions.
4. No. I have no good ideas how to fix it.
Let’s take this stat at face value. You can achieve a high conviction rate in two ways:
I’ll repeat:
Even case selection wouldn’t be so near perfect. Prosecutors would sometimes overestimate their odds. Crucial evidence would sometimes be disqualified. Jurors would sometimes prove stupid, obstinate, or biased.
Nothing involving so many people of so many backgrounds, biases, and motivations could be so perfect.