America’s Broken Criminal Justice System

Submitted by: Mike Spindell, guest blogger

200px-JMR-Memphis1While I’m not a lawyer, I do write for this legal blog by the invitation of its creator Jonathan Turley. I first arrived on the scene here many years ago because since the age of ten I have had been interested in the nature of the broad spectrum of civil rights issues faced by this country. My interest became an obsession at the age of ten. My parents, who were quite liberal, allowed me to stay up way past my bedtime to watch Ed Murrow bravely attack Sen. Joseph McCarthy for his Communist Witch Hunt, by documenting the anti-constitutional excesses he used to destroy people’s lives and careers. Months later they kept me home from school to watch the Army/McCarthy Hearings which directly led to McCarthy’s downfall. On our twelve inch, black and white TV I watched this famous scene:

“On June 9, 1954, the 30th day of the Army–McCarthy hearings, McCarthy accused Fred Fisher, one of the junior attorneys at Welch’s law firm, of associating while in law school with the National Lawyers Guild (NLG), a group which J. Edgar Hoover sought to have the U.S. Attorney General designate as a Communist front organization. Welch had privately discussed the matter with Fisher and the two agreed Fisher should withdraw from the hearings. Welch dismissed Fisher’s association with the NLG as a youthful indiscretion and attacked McCarthy for naming the young man before a nationwide television audience without prior warning or previous agreement to do so:

“Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man but your forgiveness will have to come from someone other than me.”

When McCarthy tried to renew his attack, Welch interrupted him:

“Senator, may we not drop this? We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”

McCarthy tried to ask Welch another question about Fisher, and Welch cut him off:

“Mr. McCarthy, I will not discuss this further with you. You have sat within six feet of me and could have asked me about Fred Fisher. You have seen fit to bring it out. And if there is a God in Heaven it will do neither you nor your cause any good. I will not discuss it further.”

The gallery erupted in applause.”

The drama of this distinguished lawyer chastising one of the most powerful men in the United States and silencing his cruelty was one of the defining moments of my life. It spurred a lifelong interest in the Constitution, the Law and the rights of the American People. Today, among other ills, I believe that our American Criminal Justice System is broken. Let me explain why I believe that.

While our Constitution allows us freedom of expression, thought and association, in the 40’s and 50’s  “Cold Warriors” began to institute witch hunts to root out those Left Wingers they deemed held radical political beliefs. People’s lives were destroyed because in their youth they had been part of various political groups that Congressional Committees deemed subversive. These actions tended to make citizens afraid to disagree with the “Cold War” excesses that were already beginning to give outrageous power to the Corporate Military/Industrial Complex. An analogous situation is arising to quiet those who espouse “internet freedom and openness” as illustrated by the Aaron Swartz suicide.

Rather than focus on that case, to which those two blogs and subsequent comments provide excellent insight, I would rather look at certain aspects of our legal system today that serve to destroy the notion of a Criminal Justice System that operates fairly towards each citizen and make that system into an instrument of oppression. There is in my opinion so many things wrong about American Criminal Jurisprudence that covering the entire range of “injustice” would require much larger space than this blog post provides. So I would like to touch on what I think are the highlights corrupting this system.

Unfairness of Representation

The truth is that a person charged with a crime in America today needs the means, or connections to have a good legal team. Wealth is a key decider of ones’ chances in a Criminal Trial and in the case of loss the harshness of the imposed penalty. The prosecution has the advantage of virtually unlimited funds and powers to make the legal battle, a “David and Goliath” situation, without David’s advantage of God on his side. Another component of this is that Prosecutors tend to press cases that they think they can win and also avoid to press charges in cases involving very wealthy and/or powerful people. Prosecutors have the advantage of Media publicity and a public that believes “where there’s smoke there’s fire”.

Indigent defendants are at a loss and despite the best efforts of the dedicated people who are Legal Aid Lawyers, the disparity in resources usually lead to defeat, despite exculpatory evidence. We also know that Black and Latino people make up the majority of those convicted and incarcerated in this country as I documented in this guest blog last year: . This unfairness goes beyond just affecting people who would be considered poor. The average middle-class American would be overwhelmed with the cost of mounting a defense to a criminal prosecution. I think that raising bail money alone for charges considered major would be a problem for a majority of Americans and even when found innocent the effects of the charges would take years, if ever, to end. An even-handed Criminal Justice System should give each defendant a fair chance to fight the charges against them. While we have been led to believe that our Criminal Justice System represents the model of  even-handed justice, yet this is not the case today in our country.

Under Funding of the Court System

To be considered to be a “fair” trial, a trial should a speedy trial. This is not the case and we see instance after instance of a trial taking many years between arrest, incarceration and verdict. While some might argue that this is caused by lawyers seeking delays, this answer is for the most part specious. Instead, these untoward delays are the result of under funding the court system which results in over crowding its dockets. From the Prosecution’s side, they will often delay trials to gain further evidence for their case. This ignores the idea that in arresting someone, there should be a presupposition that the evidence of guilt has already been obtained. The prosecution extends the length of the accused’s incarceration by making often outrageous bail requests (on “bail able” offenses) that go far beyond a defendant’s ability to pay. This skews the system against those without financial resources and also increases the Prosecution’s chances of getting a plea bargain leading to an admission of guilt and conviction.

“Plea Bargaining” an Insult to Justice

Due to the overcrowding and under funding of the Judicial System “plea bargains” arose to clear the dockets. In my opinion “plea bargaining” is a desecration of justice. It lead Prosecutions to “overcharge” as a means of threatening a defendant who would assert their innocence. In cases where there are multiple defendants, it allows one or more defendants to make a deal for their testimony against the others. The bargained for testimony is usually self serving to the witness and to the prosecution. Plea bargaining often leads to unequal results, sometimes even giving guilty defendants lesser sentences than their crime deserves. About 90% of criminal cases are “plea bargained” and thus the notion of trial by jury is fast becoming extinct. This was put so well in a paper by the Cato Institute titled “The Case Against Plea Bargaining”:

“Because any person who is accused of violating the criminal law can lose his liberty, and perhaps even his life depending on the offense and prescribed penalty, the Framers of the Constitution took pains to put explicit limits on the awesome powers of government. The Bill of Rights explicitly guarantees several safeguards to the accused, including the right to be informed of the charges, the right not to be compelled to incriminate oneself, the right to a speedy and public trial, the right to an impartial jury trial in the state and district where the offense allegedly took place, the right to cross-examine the state’s witnesses, the right to call witnesses on one’s own behalf, and the right to the assistance of counsel.

Justice Hugo Black once noted that, in America, the defendant “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’” By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom. Given the Fifth Amendment’s prohibition of compelled self-incrimination and the Sixth Amendment’s guarantee of impartial juries, one would think that the administration of criminal justice in America would be marked by adversarial trials — and yet, the opposite is true. Fewer than 10 percent of the criminal cases brought by the federal government each year are actually tried before juries with all of the accompanying procedural safeguards noted above. More than 90 percent of the criminal cases in America are never tried, much less proven, to juries. The overwhelming majority of individuals who are accused of crime forgo their constitutional rights and plead guilty.”

That this articulate attack on plea bargaining comes from the very conservative Cato Institutes illustrates that a fair court system is not a political notion, but one that goes beyond political divides. It is a basic Constitutional issue and one that has degraded our criminal justice system as this paper from Cato goes on to point out:

“The rarity of jury trials is not the result of criminals who come into court to relieve a guilty conscience or save taxpayers the costs of a trial. The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used. And plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials. Plea bargaining consists of an agreement (formal or informal) between the defendant and the prosecutor. The prosecutor typically agrees to a reduced prison sentence in return for the defendant’s waiver of his constitutional right against self incrimination and his right to trial. As one critic has written,

“The leniency is payment to a defendant to induce him or her not to go to trial. The guilty plea or no contest plea is the quid pro quo for the concession; there is no other reason.”

 Plea bargaining unquestionably alleviates the workload of judges, prosecutors, and defense lawyers. But is it proper for a government that is constitutionally required to respect the right to trial by jury to use its charging and sentencing powers to pressure an individual to waive that right? There is no doubt that government officials deliberately use their power to pressure people who have been accused of crime, and who are presumed innocent, to confess their guilt and waive their right to a formal trial. We know this to be true because prosecutors freely admit that this is what they do.”

Political Nature of Judges

The appointment of Judges in this nation has always been one deeply intertwined with politics and with wealth. Thus often the most important cog in our political system, the person who is to ensure that each case is fairly adjudicated, are many times lacking in the skills and insight to do the job fairly. In those venues where Judges run for their offices, the most important factor is party endorsement. With the need for party endorsement comes the obligation to adhere to “unspoken rules”. In areas where judges are appointed, their appointment is usually beholden to the “powers that be” whether they represent political party, or local wealth. We know factually that there have been powerful efforts by the backers of ultra Conservative movements to have judges put into position that represent their political interests. I don’t believe it is a coincidence that our Constitutional protections have deteriorated severely in the last 50 or so years. While no one can really escape partisan feelings, we should be able to expect that a judge can rise above their own personal beliefs to administer the Law fairly. An expectation it seems to me has fallen far short of its mark in recent years and contributes to the breakdown of our Criminal Justice System.

Prosecution as a Career Stepping Stone  

In a system truly interested in justice the position of Prosecutor would be one of impartiality, with their actions based on the evidence and on the Law. Sadly, for most of American history this has not been the case. Many who become prosecutors do so because they understand that they could use their “record” in that office to advance their careers. Their conviction rate and their prosecuting noteworthy trials elevate their public fame. Many of today’s most prominent politicians began their legal careers as prosecutors and used their office to advance themselves. Rudy Giuliani parlayed his headline grabbing antics as a Federal Prosecutor into great wealth and a political career that made him a Presidential candidate. Yet most of the “convictions” that brought him fame and media attention were overturned at the appellate level. His grandstanding, such as the arrest of a young stockbroker accompanied by TV cameras ultimately resulted in the man’s acquittal, yet the impression of Giuliani as a “fighter for justice” remained in the people’s minds.

The other problem with the prosecutorial system is that people seeking to advance their public careers, either in politics, or in pursuit of wealth, are reluctant to target people with wealth and power. To build a career one must not make enemies of those people who you might need to call upon for aid and support in the future. I find it interesting that Bernie Madoff, who in essence stole from the rich and powerful is in prison for life, while the CEO’s of large financial institutions are not held liable for the frauds their company has admitted to and the result is that their firms are being fined trifling amounts in restitution for their admitted criminal activity.

The Ongoing Corruption of Law Enforcement

Despite what some here may believe to the contrary, I have a great deal of respect and empathy towards Law Enforcement Officers. Having worked in a large Municipal Bureaucracy for many years I can truly empathize with people who work for law enforcement bureaucracies, I believe that most people who go into law enforcement start out filled with idealism and the belief that the pursuit of justice is a noble cause. Far too many of those who made that idealistic choice have found themselves corrupted by both their fellow officers and by a politically influenced bureaucracy that robs them of their idealism. The training in many law enforcement agencies reinforces an “us vs. them” mentality, rather than putting emphasis on an officer’s duty to uphold our Constitution and our laws. There is also an undue influence of politics upon Law Enforcement Officer’s that comes down from the higher levels of the bureaucracy they represent. There is lately the increased militarization of LEO’s which leads to the notion that any orders from a “superior” are to be flowed to the letter.

There is a further factor, however, that I think leads to corruption of LEO’s. Historically in the United States Law enforcement meant the protection of the propertied class, or of White citizens against the “encroachments” of people of color and or ethnic immigrants. In the south this meant enforcement of “Jim Crow”, but is was not simply a Southern problem. Many city police departments had recruiting drives in Southern States to find officers who had gained experience enforcing “Jim Crow”. The Los Angeles PD and the Detroit PD were famous for this. In NYC the Irish immigrants went from a people disdained, to the position of prominence in a police force “controlling” the Blacks emigrating from the South, the next generation of ethnic immigrants and the Puerto Rican influx. The message disintegrating the ideals of many new police officers was merely the cynicism that arose as they saw what their “real duties” should be. Many, many refused to take part in this cynical view of enforcing the law and kept trying to fairly perform their duties, for some like Frank Serpico this almost led to his death as he was shot by a fellow officer to coverup a police run drug trafficking operation.

A third factor is that those officers who rise to the ranks of Detective and are thus the ones charged with investigating crime, are promoted into a dysfunctional system where expediency takes precedence over justice. Too often they are overloaded with “caseloads” that demand quick turnover, or they’ll see their career advancement possibilities diminished. The detective soon learns that their superiors are more interested in “clearing” cases, rather than pursuing justice. This leads even the best of detectives to have a narrow focus on who they suspect and pursue that doggedly even though other evidence might present itself.

Public Ignorance of our Criminal Justice System

While most people with some knowledge of our Criminal Justice System understand its purposes and its flaws, the general public is for the most part ignorant of the issues. While I’ve heard some elitists blame this on the level of intelligence of the general public, I don’t agree that most people lack the intelligence to understand what is at stake in our Criminal Justice System. I believe that much of the problem of the public’s lack of knowledge is twofold.

The first is that our public schools no longer spend the years of school teaching the nature of our Constitution and how our government works. My own education through high School was in public schools until graduation in the early 60’s. By the time I graduated I had a pretty complex understanding of our Constitution, of our governmental structures and of our legal system. I know though from the education of my daughters (they went to excellent public schools) that what had been so much a part of my own Civics (Social Studies) curriculum had been simplified to the point of becoming incomprehensible. The more detailed views of our Constitution and our legal system have been left to the collegiate level and unfortunately by then pre-judgments and lack of understanding a citizen’s constitutional protections have already become relatively entrenched and misconstrued.

The second basis of public ignorance of the criminal justice system comes from propaganda that sometimes is purposeful and sometimes is inadvertent. Almost 50% of our television shows are police procedurals, of various forms, which show crimes being solved and justice being handed out in the convenience of one hour, less commercial time. The portrayal is overly simplistic and creates a “good guy police/bad guy criminal” counterpoint. The overt propaganda we see on TV can be seen in the news conferences and press releases of police and prosecutors. Despite what jurors might swear to the judge, the majority of them are aware of the negative publicity regarding the defendant and have had “evidence” leaked to them via TV. By the time a defendant comes to trial in a well-publicized case many possible jurors have already made up their minds and their mindset is rigid. With these factors interacting with the views of the public, is there any cause to wonder that so much has been done to destroy our Constitutional safeguards, without widespread public protest?

These are my views of our Criminal Justice System today and to me it is “broken”. As I began this post detailing how the “McCarthy Years” shaped my outlook on criminal justice, it was done as an admission that my views today may be colored by my epiphanies back then, Since most readers of this blog are my juniors in years, without that direct experience/ remembrance of the “Cold War” excesses, perhaps you see it differently. Please express you own opinions and whether or not you see this with the same urgent mindset that I have? Also what do you think I have missed in addressing this problem?

Submitted by: Mike Spindell, guest blogger

78 thoughts on “America’s Broken Criminal Justice System

  1. It’s kind of like Lance Armstrong admitting thus:

    CNN: “The fairy tale of a cancer survivor who won the Tour de France a record seven times has metamorphosed into a parable about telling a lie.”

    And thus it is that American has become one big fat act of fraud too? And of course it is, from Wall Street to the FDIC to the US manipulate of the members of the UN for selfish illegal interest that benefit ONLY governmet mafia members and not people in general. The US, no longer regulated by law of any justness or fairness but by acts only of deprivation. American will fall, indeed I see now that she must fall, because there is nothing worth savaging here, nothing to slavage because nobody willfully wants to salvage acts of repeated fraud and lies. Brace yourselves, because this decline is coming faster than you know.

  2. Great job Mike. I have to agree that the system is injured and needs help. I think that if a plea bargain is done without the overcharging process, it can be a useful tool in the system. However, I don’t know if the overcharging can be addressed without the legislature putting the power back into the hands of the judges. Of course, that can lead to abuses by the judges. There is no panacea, but the public defender offices need to be upgraded in salaries and staff to give the indigent defendants a true chance at justice.

  3. Agreed.

    Part of the problem is television.

    Watch “Law & Order”; citizens rights are routinely violated in the pursuit of “Justice” and the public has come to believe that such behavior is right and proper.

    The criminal justice apparatus is self perpetuating; prosecutors and judges will continue to charge/try people as long as there is funding for their jobs. With the myriad of laws (and a constant stream of new “crimes” being added weekly) they have plenty of fodder.

    Bottom line; we all know that the system is unfair and we keep our heads down hoping that we will be overlooked.

    American citizens are like sheep – we graze while hoping that the judicial wolf will take one of our neighbors.

  4. It is rare when a person has the moral integrity to stand up to stupid. All to often, they gather round in a circle kicking them while they are down. Welch is a rare breed, maintaining dignity while being direct. I can certainly learn something from this Mike S…..

  5. The military court martial system and those who imprison and torture human beings BEFORE trial, conviction and sentencing, and lock them up for three years before trial are a fraud and a systemic human rights system which needs to be prosecuted in the same way we prosecuted the judicial actors from Nazi Germany in The Judges’ Trial at Nuremberg. Google: The Judges Trial at Nuremburg. The Bradley Manning case consists of several crimes. The sleep deprivation torture crime is such that the perps be charged with Capital Offenses and if convicted be sentenced to death. They should be held naked, shivering in their cells until the sentence is carried out.

  6. I think you have seen it as it is Mike S.

    I would add, to further support that notion, that our forefathers saw it that way too.

    They labored, as we do, in an imperfect and impared culture.

    Thus, the original constitution was infirm, in that, it allowed slavery to continue.

    Yet, it also had within itself a way to self correct, which has been used at times to correct our wrong ways, slavery being one example.

    The prime wordsmith, who is called the “Father of the Constitution”, James Madison, counselled us about a toxin that would destroy it all if it was allowed to become improperly used:

    Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied: and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both. No nation could preserve its freedom in the midst of continual warfare. Those truths are well established.

    (The Greatest Source Of Power Toxins?, quoting Madison). Your post indicates that you sense an evolution from left to right, in the sense of an erosion of the freedom contained in traditional American values “in the last 50 or so years.”

    To me, that supports president, congressman, cabinent member, and constitutional author Madison’s hypothesis.

    Science moves along by the use of hypothesis, which requires provable assertions and prediction.

    Einstein, in furtherance of one of this hypotheses, predicted that a star that was, by straight-line sight, physicaly behind the Sun at a given time, would be visible because space is curved by gravity around heavenly bodies like stars and planets.

    His prediction was proven true.

    Likewise, Madison predicted that warmongering “develops the germ of every other” threat to public liberty.

    To test his hypothesis, when we see an increase in warmongering — e.g. the longest wars in our history — do we see an erosion of our public liberties?

    Do we see the executive branch growing in power into “The Commander In Chief”, do we see that “War parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few“?

    You mentioned propaganda as one “basis of public ignorance of the criminal justice system”.

    Do we see, then, that  “In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied: and all the means of seducing the minds, are added to those of subduing the force, of the people” is further support for the prediction in Madison’s hypothesis?

    Do we also see “The same malignant aspect … in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both” as he foresaw?

    The criminal justice system you decry, for its having degenerated, is not the end of the matter — if Madison’s hypothesis is valid — because the final prediction in his hypothesis is: “No nation could preserve its freedom in the midst of continual warfare.”

    That means that the degeneration of the criminal system is one degeneration along the road of utter loss of freedom.

    Warmongering goes or the nation goes, is the bottom line.

    “Those truths are well established” concludes Madison.

  7. It will be the rapaciousness of those within the American justice system whose souls were lost to the cold institutionalized overwhelming amorality of the hierarchical bureaucratic State that accelerates our civilizations rapid decline into tyranny. An institutionalized system of command and obey, of absolutes without room for humanity, results in a State without empathy-and the only drive being that of power. We are well past the event horizon..the people will eventually revolt.

  8. A well written and informative article. Thank you.

    I do however, take exception to something you’ve done in this article. It is something that most people do without a second thought. You seem to lump groups together stating that public schools do this, idealistic recruits become jaded, prosecutor positions become stepping stones, etc.

    I’ve known excellent history teachers who taught civics well, yet most of the students had more interest in their new iPhone than in learning. I’ve known state troopers in the beginning of their careers and at the end who were just as dedicated to serving the people as the day they started. I must admit that most of the lawyers I’ve known were more interested in the all-mighty dollar and ego than serving society. Perhaps I just know the wrong lawyers.

  9. Beverelliee,

    Exceptions are not rules.

    Mike S has written this post in a general narrative form.

    His scope necessarily requires the observation of general trends, which does not rule out the exceptions you point out.

  10. I’m not a lawyer, but come from a family where many of my relatives are, both cousins and second cousins. With one exception, I’ve found them turn from loving individuals into self-absorbed, self-righteous, arrogant jerks. I have never cracked open one law book, yet I’ve argued one into submission; not because he admitted to it, but because the facts proved to be on my side. I shudder to think of him in a courtroom.

  11. “You seem to lump groups together stating that public schools do this, idealistic recruits become jaded, prosecutor positions become stepping stones, etc.

    I’ve known excellent history teachers who taught civics well, yet most of the students had more interest in their new iPhone than in learning. I’ve known state troopers in the beginning of their careers and at the end who were just as dedicated to serving the people as the day they started. I must admit that most of the lawyers I’ve known were more interested in the all-mighty dollar and ego than serving society. Perhaps I just know the wrong lawyers.”


    Thank you for your kind praise. I understand your critique and agree with the fact that there are excellent teachers and LEO’s, who maintain their excellence and integrity throughout their careers. I believe this is also true for all areas of the legal profession as exemplified by Jonathan Turley, our host.

    When I talk of “under funding” the legal system I’m aware that intrinsic to that is pressures being put on Judges and Prosecutors to expedite their cases and so they are not entirely to blame for the shortcuts they use When I talked about LEO’s I opened with:

    “Despite what some here may believe to the contrary, I have a great deal of respect and empathy towards Law Enforcement Officers.”

    I went on to explain the deleterious effects of the bureaucracy and the “system” in setting many officers off track.

    The central argument I made, because I believe it is representative of all the ills of the “broken” system, was about “plea bargaining”. You will note that I used the long quotation from the Cato Institute, to make my point. Because Cato is generally quite conservative, if not Libertarian, I chose them to reinforce that this blog was not a partisan piece, since I think the guilt for the breakage falls on all parts of the political spectrum equally.

    The problem I had in writing this was the broadness of the issue. This is the longest blog post I’ve written at over 3,500 words. It ranks then with some of the longest posts written on this blog. I really believe that this post was perhaps too long for this forum, since many readers seem to prefer brevity, as I do myself at times. Everything I write here, whether people like it or not, comes from my own passion and belief. However, my aim is not to persuade because the quality of the readership of this blog is such that they will always make up their own minds. My purpose is then always to elicit lively discussion and viewpoints from which I and other readers can further educate ourselves. In the years I’ve been a regular here I am still amazed by how much I learn from reading it and commenting each day.

  12. Great article, thank you for it!

    The criminal justice system is FUBAR. So is the rest of it. And there will be no revolution and there will be no other remedy either. And worst of all, a fair number of us actually deserve what is coming.

  13. Thanks for this, Mike.

    It is indeed hard to encapsulate the deterioration of any aspect of our public life, whether it’s the judicial system or some other. But I agree that the flaws in the judicial system are crucial.

    One aspect I see for this deterioration, and it applies widely, is the shift in public debate and accountability to an increasingly ideaologicially based one. Taking roughly just the past half century we have seen the fear and catharsis generated by the “communist scare”, perhaps an actual geopolitical threat, but one that was used to squelch the liberties and rights of many outspoken advocates of democratic principles.

    A reaction, though not linear came in the 60’s with the advent of principled left wing opposition to the militaristic extension of US power and a governmental suppression of the opposition. This awakened and invigorated the right wing, cultist faction of the conservative movement, a movement largely within the normal spectrum of American politics until then.

    Gaining ascendancy by continually and vigorously waving the flag, the result was a continuing rightward drift in the lingua franc of political discourse that sought power and safety in militarist, jingoist stance, in words and action. Gone since then, except for occasional lip service, has been the acknowledgement of the obligation of the US to act in accordance with a beneficent social compact domestically, and as an honorable nation internationally, respected for it’s goodness more than it’s raw power.

    The acceptance, mudh enhanced by a cowardly and bought media, of the cult of right wing excess has virtually eliminated meaningful advocacy for the compassionate ideal of our nation. The attacks of 911 kicked the transformation up another notch. I am waiting for the cusp to appear where the cycles may reverse. I don’t see much evidence of that.

  14. This is a great article and I agree with everything in it.

    An additional point is judicial ignoring of Rule 608 of the Rules of Evidence. In 2004, a magistrate judge wrote a recommendation saying that he thought I had engaged in abusive litigation. The fact is that there are only two ways to engage in abusive litigation. One is to ignore discovery orders and I couldn’t have done that because in my litigation no answer was ever filed so therefore there was no discovery, and no discovery orders. The other is to file something that is dishonest. I don’t have a criminal record. If there is no criminal record, Rule 608 prohibits the entry of extrinsic character evidence of dishonesty, meaning evidence that doesn’t come for the person. So in order to have admissible evidence of dishonesty, they would have had to either get me to admit to being dishonest, which I didn’t do, find that I misquoted something, or find that I filed two statements that were contradictory. No one even alleged that I had misquoted anything or filed two statements that were contradictory. So there is no extrinsic evidence of untruthfulness on my part. Yet probably a dozen federal judges have written that I engaged in abusive litigation and because of this DOJ imprisoned me for 5 months with no evidentiary hearing, bail hearing, or charge that I broke a law and I was ordered to pay over $100,000 which started a chain of events that resulted in my losing my home and business.

    Two different DOJ assistant U.S. attorneys filed in federal court that I engaged in abusive litigation even though Rule 608 prohibited them from filing that. Two other DOJ assistant U.S. attorneys knew that the first two had filed that I had engaged in abusive litigation even though there was no admissible evidence of that and failed to withdraw or correct those statements. So then after I figured this out I sent in two motions pointing that out to my current federal lawsuit against DOJ in the District of Columbia 11-cv-01032 and Judge John D. Bates, who is highly respected and a Presbyterian, refused to let these motions appear in PACER. One was a Rule 201 motion and one was a tolling Rule 52b / 60 motion. I have FEDEX proof of delivery for both. The first was tracking number 794255082406 and signed for by A.Dickens on 12/11/12. The second was tracking number 794516559365 and signed for by .Ragosa on 1/16/2013.
    The reason I have included these details is that someone else may want to use the information that U.S. Courts does not always allow the filing of motions. Apparently U.S. Courts has unpublished rules to inhibit the litigation efforts of pro se litigants. It is worth noting that probably 99% of all people who are criminally convicted and then attempt to challenge their convictions do so as pro se litigants. An example is Brandon Moon who spent 18 years in jail for a rape he didn’t commit. He was the only blue eyed man in the line up which was 18 months after the rape. He challenged the eye witness identification procedure multiple times as a pro se litigant but was repeatedly denied the obvious finding that the procedure was unreliable until he could get the Innocence Project to take his case. The Innocence Project doesn’t have the funds to handle most applicants and they don’t take cases in which the person was coerced to plea bargain or which don’t involve long terms and DNA evidence.

    Thus the rights of pro se litigants are an important part of the issue in America’s Broken Criminal Justice System. These rights are hard to establish because many lawyers on principle won’t defend the rights of former pro se litigants. In fact, I put a lot of information about pro se rights onto Wikipedia’s website on pro se litigation and 90% of it was deleted. One of the deletions was the experience of Brandon Moon, which I had supported with a New York Times article.

  15. Mike S.,

    Thoughtful in its critique and constructive in its suggestions, this is one of your best contributions to our forum. (We can handle long posts. 😉 )

    I also agree with the points Beverelliee raised as I know many fine teachers, LEO’s, judges, and prosecutors but their complaints are the same as yours. The system is broken and does seem to be beyond repair so they struggle to maintain integrity in the face of petty lawlessness and apathy.

  16. Interesting and well written article Mike. I agree that our system needs to improve, but I think that our constitution has been the at the forefront (or the catalyst) of our inept system. As long as you can dehumanize a man, then you can treat him anyway you want to, because, after all,-as the logic follows-he/she is not a human. Dehumanizing a man/woman can also be in the form of labeling him or her as a 2nd class citizen (we don’t use that term any more due the political correct theories). Here are a few examples: Remember our constitution dehumanized Africans (slaves) in the 3/5s-of-a-man law set back in the 1700s; our constitution have always regarded women and African-Americans as 2nd class citizens (many women still believe that it is still “a man’s world”); our constitution continues dismiss any person born outside of the US (except O’Bama-I am only joking here)-a chance to become President of the US. And let’s not forget the US Supreme Court cases, Dredd Scott, Separate-but-equal,etc-in which the Justices cited US Constitutional law to uphold or support their decisions?

    Remember your previous blog about the ‘talented tenth’ (you used something different, but I can’t remember it) in which the elite or few will rule over the many-poor and middle class? Well, our constitution-I believe-is also for the protection, autonomy, and authentication of the elites. Hence, our flawed criminal justice system-which you accurately pointed out-is going to do the same. All you have to do is examine each flaw-in the criminal system-that you uncovered, and think how each one benefits the elite to maintain their control over the many.

  17. Scrolling down from intro in email, to here. Reading further expo and comments later.

    Wish to add my experience of the same defining moment, with Welch vs McCarthy, on the radio at home. The courtly, courteous tones and choice of words and a stately delivery by Welch. In some way their purpose imprinted themselves and defined my faith in people and the ultimate justice they can deliver. I did not hear the session regarding the young man, but even earlier, Welch showed the effectiveness of humanity and calm reasoning against rotten bullying and bluster.

    I have never left that path. TGFT.

  18. “Welch showed the effectiveness of humanity and calm reasoning against rotten bullying and bluster.”


    You are quite right and in the case of McCarthy Welch was the perfect person, at the right time, to put that bully in his place.

  19. Again Mike we are thankful for the length of this article and the insights into the basic causes of some of the manifestations in our system.

    In the first part of the article there was much mention of the McCarthy era as having some of its lingering effects presently. One such example of that is in WA the Communist Party is statutorily banned. McCarthy style laws are still on the books

    Chapter 9.81 RCW: Subversive Activities

    Essentially this chapter in our state code makes it a felony to overthrow or even “alter” the constitutional government of our state or the US. Membership in a subversive organization is a felony and those convicted of such are banned from holding office or even voting.

    The statute goes one step further to then broadly declare the Communist Party to be by definition a subversive organization. The statute ordered purgings of those who at the time of the enactment of the law to disassociate themselves or face a felony charge.

    As absurd as this might seem, to this day there are no Communist Partys allowed to run in our state elections, though a somewhat idealogical analogue to this might be considered the Workers Wolrd party which has a very small presence in the state in the past. Personally I don’t see such a party getting much traction in this state but I don’t see the harm in letting them run for office, all you have to do is vote No.

    As to the LE aspect of your article you are correct for the most part of what plea bargains involve though I might add that one of the reasons for the 90% of those accepting please rather than face a jury is because more than 90% have actually committed the offense and it is a way for many defendants to avoid additional penalties as to what can be assessed against them. But there is a lot of game theory involved in these negotiations between the prosecutor and the defense and the state has all the coercive power at their disposal. Stacking charges does happen a lot in order to pump up what the defendant will settle for.

    But there is one consideration to be made. It is the problem of time and resources. In some countries a defendant will sit in jail for years just to await a trial. Frequently it is the case there where the time spent waiting for the trial is longer than what the sentence would have been. If every defendant charged went to trial the system in at least most areas I have worked would resemble a system such as this where it drags on because judges are not as freely available. One could argue that there are some glaring inefficiencies in the system but where do you draw the line as to what cust are efficiency based or are detrimental.

    In our state if a defendant accused of an assault is later found to be not guilty, the defense may request the jury, if applicable, issue a finding of Self Defense on behalf of the defendant. If the jury finds that the act was one of self defense the state is mandated to pay all of the defendant’s legal expenses. I know this has had an effect on what prosecutors bring to trial because they do not wish to pay for it out of their budget so they are more selective. I wonder if such a program was offered to any criminal defendant that is not already judged to be indigent. Maybe if the defendant had the ability to have his legal expenses paid in full if he is found not guilty that might have a balancing effect on some of the resource disparity between the state and the citizen.

  20. Darren,

    I’m astounded that Washington State has such a law. It has to be a holdover in thought from the McCarthy Era. As I’ve often admitted here during my time in the Union Movement in the late 60’s early 70’s I knew many communists of different persuasions. I was even friendly enough with some to share a social evening. My problem with them generally was that most were so dogmatic in their beliefs (think religious fundamentalist) that they had almost no chance of success recruiting on any important scale. They believed themselves to be a lot slicker than they actually were.

    “But there is one consideration to be made. It is the problem of time and resources. In some countries a defendant will sit in jail for years just to await a trial. Frequently it is the case there where the time spent waiting for the trial is longer than what the sentence would have been. If every defendant charged went to trial the system in at least most areas I have worked would resemble a system such as this where it drags on because judges are not as freely available. One could argue that there are some glaring inefficiencies in the system but where do you draw the line as to what cust are efficiency based or are detrimental.”

    You are absolutely correct about this. My point regarding it is that we don’t spend anywhere near enough on our Court System to ensure speedy trials and fair verdicts. Criminal Justice is a very important role of Government, on which all sides of the political spectrum would tend to agree, why then do we continue to underfund it?

  21. “If the jury finds that the act was one of self defense the state is mandated to pay all of the defendant’s legal expenses.”


    That seems to me to be an excellent and meritorious law.

  22. Initially wrong thread:

    “idealist7071, January 19, 2013 at 3:45 pm

    McCarthy commie hunt through hearings began in 1950 and ended in the Army hearings some years later.

    Excerpt from Wikipedia:
    After three largely undistinguished years in the Senate, McCarthy rose suddenly to national fame in February 1950 when he asserted in a speech that he had a list of “members of the Communist Party and members of a spy ring” who were employed in the State Department.[4] McCarthy was never able to prove his sensational charge.

    In succeeding years, McCarthy made additional accusations of Communist infiltration into the State Department, the administration of President Harry S. Truman, Voice of America, and the United States Army. He also used charges of communism, communist sympathies, or disloyalty to attack a number of politicians and other individuals inside and outside of government. With the highly publicized Army–McCarthy hearings of 1954, McCarthy’s support and popularity faded. On December 2, 1954, the Senate voted to censure Senator McCarthy by a vote of 67 to 22, making him one of the few senators ever to be disciplined in this fashion. McCarthy died in Bethesda Naval Hospital on May 2, 1957, at the age of 48. The official cause of death was acute hepatitis; it is widely accepted that this was caused, or at least exacerbated, by alcoholism.[5]”

    The effects generated by our Congress are sometimes revealed afterwards.
    My point is that they further corrupt our justice system with well-hidden laws.
    Which in turn are enforced in a corrupt fashion as detailed in the blog.”

  23. Anybody remember the 60S? The race riots? What spawned them wasn’t one specific action it was a series of events that all of a sudden spilled over to mass acts of civil disobedience and riot. I shudder to think those days may come again. We are in the midst of a financial meltdown that was alleviated by pumping $ trillions into the banking system. The populace got mad and angry but did not bring pitch forks to the courthouse or bank and demand heads. Is there simmering anger in the populace that 5 years after the melt down bankers are richer and the poor are poorer? you bet.

    I believe you cannot predict when the pot will boil, but if we continue on our path of unequal justice, bailing out bankers and letting homeowners to fend for themselves, putting a pot user in jail for 10 years and giving a $10 million bonus to a banker, the pot will boil. Just think of the revolution in Iran in 1979-80. They finally had enough and one day a protest in front of the U.S. embassy that propped up the Shah turned into a violent event that captured the Embassy personnel in a 1 year confinement and turned Iran into the country it is today. So one day there will one too many bail outs to a connected person, one more banker that gets a $10 million bonus, and on the same day a person will loose their home, the next morning someone at a protest will bring a gun and it will be downhill from there. And our media elite will wonder why this all of a sudden happened.

    The day will come, the debt is due and will be paid. It will not be pretty.

  24. Civil rights. I have great respect for Mike Spindell and Jonathan Turley. However, it is entirely possible that they are beating a dead horse.

    I have been in court before. Who has the better lawyer? The dream team?

    West Allis, WI municipal court judge clearly implied that federal employees deserve more consideration than people who work at McDonald’s. Is that equal access to justice? You decide.

  25. Don’t forget also that it’s a set practice for judges to mete out draconian sentences to someone who had the audacity to demand a trial and then lost. That exercise of discriminatory excess punishment in the sentence is a mighty detractor against the exercise of one’s right to a trial.

    And, in the federal system for certain he will lose, because of the factors that you point out. The citizen-juror is conditioned to believe that the government prosecutors are sincere, honest, and industriously ethical. The jurors are conditioned against giving a fair and impartial consideration to the evidence. If the government wants it, then it must be true!

    Prosecutorial misconduct is a fact of life in the federal criminal justice system, where my own personal experience is centered. Witnesses are browbeaten into cooperating lest they be charged themselves. The deals, as you mention, are geared to obtain the targeted person’s conviction at any cost, even it it means not prosecuting those more responsible.

    At the cost of losing reasonable contact with objective reality, prosecutors often cloud the facts to their personal desires and expectations, and they inevitably succeed in imparting their view onto the judge and the jurors. As you say, money is supreme in getting a proper defense. Without that a defendant will lose.

    How can the public be educated to the existence of a critical problem like this? It seems that only personal experience on the wrong end of things will get a person and family members to realize how far the system has sunk. How can the public find the courage to give a damn enough to speak out against a governmental unit that aggressively uses power to punish any obstacles blocking its victories? How do we change a system that has the power to threaten our very freedom?

    Aaron Scwartz could not find the answer and, being principled enough to refuse being branded as a felon, he chose to exit the oppression. Not a decision we would agree with but understandable in the context of the overwhelming power applied to create fear and submission. The public knowledge resulting from that act may ironically create some much-needed public awareness about the problem.


    The Aaron Swartz Memorial ceremony has now terminated. Hopefully soon to be available on the OnDemand service at DN.

    For me, it was deeply moving.
    He, as related by the speakers, each knowing him intimately in their own or multiple fora, was a model which many could see the best of themselves, and accept as a mentor or the guy who wasn’t smart, he just asked the right questions—as he honestly claimed that he was. Oh, he did enjoy being the center of attention, but never with the idea that it was his right due to his accomplishments or talents.

    To summarize it is to ignore the richness of his life, and all it amazingly encompassed. Each speaker struggled to maintain a composure which would allow them to relate their view of him.

    If you like myself, were not aware of his life, deeds, and ambitions for us all, through “hacking the world” as one said, to release us from our chains, to reclaim research from the control of the corporate world, to continue the fight for public access to public paid knowledge, and so many many other things; then take a chance by seeing the service.

    He was characterized in so many ways: realizing the need for everyone to have the means of driving their own “campaign” including the poor widow in India. As an applied sociologist as he once said. As a person who constantly sought for optimum ways, and ways to make optimizing the search for solutions through meta-analysis which could then yield methods which be applied over many fields, not just ONE field of study or development.

    How to continue his fight without him was the general closing thoughts of almost all. Some defiant as Siegel, or some humble as his partner, a distraught but thinking woman.


    Post Hoc thoughts which deepen the smoke blocking our view

    It is said he committed suicide in the face of losing his corrupted court battle, facing the termination effectively of the rest of his career, and a life as a marked felon.

    Some say he was murdered indirectly
    by our injustice system.

    On the basis of revelations of prior assassinations and his rising significance nationally and internationally by revealing our systems faults and deliberate fraud of us all, I must say as a realist that he mght well have been the victim of a planned suicide assault. By whom, guess?

    I can give suggestions as to arranging such a suicide based on practically no knowledge. But there are others here who can shed more light on that side, based on more knowledge than the little I know since 3 short anesthesia trips for arythmi conversion since October 2012.
    Any doc can confirm, and perhaps others.

    Just remember how quickly you can go under from the Michael Jackson drug, and recall that you can awake after 4-5 minutes, to find yourself hanging by your neck, a rope around it, struggling really to get free, but as such emulating the struggles of a real suicide who regrets too late his decision.

    Our system is grim. As we note every week here.

    As one speaker noted, we have become scared, our voices dampened when they should be raised. First MLK, and other voices have been silenced. When will another dare as Aaron did, Manning before him, Assange earlier still. Will anyone dare another time?

  27. Tiny spark, but way too late:

    SANTA ANA, Calif. — Two former Fullerton police officers must stand trial for the death of mentally ill homeless man Kelly Thomas.

    City News Service says an Orange County judge refused Friday to throw out charges of second-degree murder and involuntary manslaughter. He set a June trial for Manuel Ramos and Jay Cicinelli.

    Another ex-officer, Joe Wolfe, has a pending hearing on a motion to dismiss a manslaughter charge.

    Related Content
    LINK: Follow @abc7newsbayarea on Twitter
    All three have pleaded not guilty to killing Thomas, a 37-year-old schizophrenic who was beaten, Tasered and pinned to the ground in a July 2011 confrontation with six officers.
    Video shows him screaming that he couldn’t breathe.

    He died days later from chest compression that cut off his oxygen. His death sparked protests, the recall of three City Council members and an FBI investigation.

    (Copyright ©2013 by The Associated Press. All Rights Reserved.)

  28. Mike S.:
    Very thorough; very insightful; very accurate. And I appreciate the fact that you have not allowed your observations over many years to push you toward the sort of bitter cynicism that too frequently turns critics into cranks.

  29. Is it not time to revisit these flawed convictions? People were sentenced to decades and decades of prison, when DA’s decided to crack down on the politically popular fear of the moment. J Edgar’s COINTELLPRO regarded MLK, the Panthers and AIM as subversives, as terrorists, and many of these people languish in jail. Worse, some people, Fred Hampton, were murdered outright.

  30. I don’t think most people understand that you can have well-meaning cops and prosecutors trying to protect the public that work in a corrupt system that produces genuinely evil outcomes for their targets – and many times they aren’t aware of the harm they are dishing out to citizens. So it’s not so black and white as to the villains.

  31. Another factor not talked about much is the post 2001 terrorism laws are now being used for conventional criminal justice totally bypassing constitutional due process. This is not a ratio of 90% legitimate terrorism cases versus 10% illegitimate cases but the reverse – almost zero real terrorism cases with 80-90% of the terrorism laws being used to bypass constitutional due process on conventional crimes or domestic spying where there is zero crime or terrorism in the equation.

  32. “The below is the most asinine thing I have read so far this year.”


    As a psychotherapist I am of course interested in the thinking behind people’s actions. This story is so bizarre that it is impossible for me to understand what motivated these school officials. My only conclusion based on the bare facts alone is that these people should not have jobs in education, period.

  33. “So it’s not so black and white as to the villains.”


    I agree with the sentiments of your comment and did try to point that out in my post. The “system” itself is the corrupter in most cases, though the endemic corruption does attract to it some corrupt people.

    “This is not a ratio of 90% legitimate terrorism cases versus 10% illegitimate cases but the reverse – almost zero real terrorism cases with 80-90% of the terrorism laws being used to bypass constitutional due process on conventional crimes or domestic spying where there is zero crime or terrorism in the equation.”

    This is an important addition to the case I was making. There are a proliferation of laws passed to deal with an emergent horrid situation, that get turned from the purpose of their passage, to a general usage in the Criminal Justice System to the detriment of personal freedom. One such law that has bothered me for years is RICO, originally passed to gain convictions against organized crime, yet used for a variety of purposes its passage never argued for or intended.

  34. I’m not sure if any proposals were put on the table to reform our legal system, but one thing’s for sure: most of the laws could be wiped off the books – and that would result in a major benefit to society.

    E.G., only one traffic law is needed: Reckless Driving.
    E.G. Only one law is needed re: alcohol and other drugs: no victim, no crime.

    The legal profession profits from more laws, so that’s how it’s going to be.

  35. bill,

    The legal profession is like water that changes volume and shape to fit the vessel. The issue with many laws is not so much they are nonsensical (although simpler is better), but that they are effectively taxation and ergo government profits. There are small towns all over this state (and many others) where the chief source of local government income is from tickets and fines.

  36. Darren,
    You are right about the school bubble shooter story, but on that same page there is a link to a 13 year old Missouri girl whose mother was told should get a breast reduction in order to stop the bullying and sexual harassment against her! This is is in Missouri where the bible is king!

  37. I agree w/ much said. However the caveat of “There are good prosecutors, teachers, cops, etc”. seems almost perfunctory here for the most part. The older I get I see people who take pride in being open minded and progressive are often the most intolerant. The left have their generalizations, the right have theirs. We ALL have some bias, it just means we must all be diligent in remembering that. I was taught that by a great philosophy professor.

    Stan the Man and Earl Weaver died yesterday. There is a great bio of Stan the Man. He was a great person. You folks here would be happy to know he campaigned for JFK w/ Angie Dickinson and James Michener. He became lifelong friends w/ both. The early black players all said Stan was one of the good guys. Stan came from a poor Polish family in western Pa. and never forgot who he was. The Man was a ballplayer and one of the top 5 hitters IMO. RIP

  38. @Mike: I agree with that entire post. Excellent job.

    I will add one thing to the television discussion. Script writers are almost always very careful to show us that the perps being tortured, shot, and mistreated by police are, in fact, guilty of crimes, even if the “Cop” character cannot possibly know that. So from the audience’s point of view, the hero cop character almost never violates the rights of an innocent person; and this gives the impression that the hero cop has perfect judgment, and in stories people are rooting for bad guys to get their comeuppance in any way possible.

    That bit of plot engineering by writers is done so that the audience will not lose identification with the hero, it makes for more absorbing fiction. But it also inures people to a bias in favor of violent police when the vast majority of the police violence they see, despite being fictional, seems like “fair” punishment of a criminal they saw commit a heartless, violent crime, with their own eyes: In almost every case the director and screenwriter will make sure police violence is either karmic justice for a criminal, or the police are the bad guys and eventually punished.

  39. “He died days later from chest compression that cut off his oxygen. His death sparked protests, the recall of three City Council members and an FBI investigation.”

    That’s the problem. You can’t get things to happen properly without “protests … and an FBI investigation.” Remember the Trayvon Martin shooting. Yet the American public cannot stop everything it is doing at all times and spend full-time and even more than full-time protesting, demanding FBI investigations, and jumping into every single little (read “little”) injustice perpetrated by a behemoth system that ran off the rails years ago. We can’t do it. So every now and then we get a few little (read “little”) ships turned around by massive efforts and storms of protest. Meanwhile the ships going down routinely all around us proliferate. One begins to think that only an Aaron Swartz experience or something like it (read “bit”) can have even a five-minute effect. I need to leave now and buy some breakfast cereal, see?

  40. “Script writers are almost always very careful to show us that the perps being tortured, shot, and mistreated by police are, in fact, guilty of crimes, even if the “Cop” character cannot possibly know that. So from the audience’s point of view, the hero cop character almost never violates the rights of an innocent person; and this gives the impression that the hero cop has perfect judgment, and in stories people are rooting for bad guys to get their comeuppance in any way possible.”


    This is a very important point you make since it goes to the heart of the mythology being sold to the public via this type of propaganda. This was always true of the show “24” in its use of torture, plus there they used the meme of immediate disaster impending, forcing the justification/need for torture.

  41. “However the caveat of “There are good prosecutors, teachers, cops, etc”. seems almost perfunctory here for the most part.”


    It’s sincere and not perfunctory. My points have consistently been that it is a systemic issue, not one of “good” or “bad” individuals. I’ve known “Leftist Idealists” that would be as bad as Hitler if ever getting power. I have close friends who are extremely conservative, close friends who are quite libertarian and I like them because they are good people. I only proselytize when I write because individual discussion is futile when it comes to changing minds. I’m not so sure it works for writing either, but I feel obligated to fight for justice and against injustice openly. I refuse to give up trying, in my very tiny way, to make the world better.

    Bad systems and entrenched power give license to people to do things that are ethically wrong. For instance, I worked in Child Welfare for eight years and if the system were different I could have personally killed some heinous child abusers that I ran across. I’m not a violent person by nature, but such was my rage at child abusers. I’m sure that many LEO’s, having to be at the scenes of horrific crimes, would (and sometimes do) kill or harm the person they suspect is the perpetrator. What I’m writing about here has nothing to do with politics and that is why its centerpiece is a quote from the Cato Foundation, hardly a progressive, or even centrist institution.

    As for Musial he was the second best left handed hitter that I ever saw, Ted Williams was the best, but Musial far eclipsed Williams as a human being.

  42. To Mike’s point: Many Americans would be surprised to know that the greatest mechanism for finding “Truth” is the Judicial Branch of government when trial discovery is allowed to happen. Federal courts also have a better track record at keeping secrets – better than any intelligence agency.

  43. MikeS, Thanks for your very good response. I think it adds texture that I simply didn’t get in your post. And, saying Stan was a better person than Ted is certainly, “Damning w/ faint praise”..which I know was not your intent.

  44. Nick S,

    There is a great bio of Stan the Man. The Sunday Edition of the St. Louis Post-Dispatch (they need to change the name of this paper: post-dispatch) has a 14 page section devoted to Stan Musial. St. Louis is going to be shut down for a couple of days….They need to find another Cardinal Great (Lou Brock) to be at the home openers now that Stan is gone.

  45. A while back we filed FOIA requests (Freedom of Information Act) for the supreme oath of office for local police agencies, FBI and NSA (National Security Agency). The request asked for not only their top oath but all subordinate oaths. Every agency officer takes an oath to “preserve, protect and defend the Constitution of the United States – not one agency provided any other loyalty oaths or exceptions. Usually the heads of these agencies when asked outright refused to provide this training to their low level officers. This is a huge deal with issues like searches and domestic spying but how do we overcome the bureaucratic inertia to reform?

  46. @Mike: the meme of immediate disaster impending, forcing the justification/need for torture.

    One of the silliest logics of recent times.

    First examine it from the point of view of the torturer: If it is true and the bomb is going to go off, then how do I know when to stop torturing the victim? How do I know when he has told the truth? Anything he says, I have to assume he is sending me on a wild goose chase just to stop the torture, I cannot believe him. But the bomb is about to explode, so I better send some people to the site he gave me, and keep on torturing him as if he were lying, just in case.

    Now examine it from the point of view of a guilty victim. If the bomb is about to explode anyway, he only needs to delay the torturer long enough for that to happen. He knows (by the logic above) he will be tortured until the bomb is found and defused or explodes, so his best strategy is to just send the CIA on a goose chase, and keep insisting on it so maybe they stop torturing him, until the bomb explodes. (His life is over anyway, he has to know that too.)

    Now examine it from the point of view of the innocent victim: What can HE possibly say to end the torture? His only hope is to lie, which will just get him in more trouble. If he says he knows nothing, they keep torturing them, because there is no way for the torturers to know the truth. They have to find the bomb, and by the entire premise, the bomb is about to explode.

  47. Tony,

    Perfect analysis of the illogic of ticking timebomb torture, but the futility and stupidity of that point of view seems to convince many people, including some foreign policy “experts”.

  48. Gene H.:

    I had no idea. You mean laws are often used to generate revenues…for
    municipalities, LEO, lawyers, bail bomdsmen etc.? Makes me wonder if maybe forfeiture laws are also used as wealth transfer systems.

  49. Thank goodness we have a former (adjunct) instructor in Constitutional law in the White House. Just THINK how things might be if liberals (sic) hadn’t supported him.

    I’m sure Bronco Bama cares deeply about justice…for the 1%, anyhow.

  50. lawdesk 1, January 19, 2013 at 6:39 pm
    When the Waukesha County Circuit Court Judge says to the 12 person jury, “well I think he did, but you have to draw your own conclusions.” Then the judge starts talking about his daughter’s law school experience.

  51. “I had no idea.”

    Apparently, bill. Lawyers and their services expand to meet the need. Unless they are Congressmen or lobbyists, they don’t create the need. Same with bail bondsmen and LEOs. If you don’t like the law? There are only two doorsteps at which laying the blame is appropriate and its with those who make the laws – Congress and K Street. They write and promulgate the laws.

  52. Another senseless prosecution:

    “I can’t survive like this. I am happy to be hitting a prison cell soon. They ruined my business. The feds get approval of who I can work for or with: they rejected one company because the CEO had a social network profile with an occupation listed as “hacker.” They prohibit me from touching any computer that isn’t federally monitored. I do my best to slang Perl code on an Android device to comply with my bail conditions. It isn’t pretty.

    Ivy league educated and wealthy, Aaron dealt with his indictment so badly because he thought he was part of a special class of people that this didn’t happen to. I am from a rundown shack in Arkansas. I spent many years thinking people from families like his got better treatment than me. Now I realize the truth: The beast is so monstrous it will devour us all. None will be spared.

    So now I stare at a form that the government wants me to fill out before sentencing labelled “acceptance of responsibility” and wonder what I can possibly fill in this slot. This letter is it.

    I accept my responsibility, and hope you do too, of dismantling this terrible empire so that this can’t happen to anyone.

    This is the difference between the prosecutors and FBI agents and I. They wish me utterly destroyed, and have been hounding me for years of my life. They have been surveilling me, by their own admission, since I was 15. You know what I wish for? A world where no man may abridge the liberty of another. Not me, not you, not the FBI, not federal prosecutors. I actually hope they have fulfilling lives, and come to realize the mistake of treating our Constitution like toilet paper.

    This is a country where if you express ideas that federal agents don’t like you, you will be beaten, imprisoned, or killed. I accept my responsibility for offending seditious thugs, liars and tyrants. I say this is the duty of all decent citizens left.”

  53. Ex-Army Officer Accuses CIA of Obstructing Pre-9/11 Intelligence-Gathering

    Sunday, 20 January 2013 07:46

    By Paul Church and Ray Nowosielski,

    Truthout | Report

    “Offering new revelations about the CIA’s role in shutting down military intelligence penetration of al-Qaeda, Lt. Col. Anthony Shaffer joins a growing list of government officials accusing former CIA director George Tenet of misleading federal investigators and sharing some degree of blame for the 9/11 attacks.

    A decorated ex-clandestine operative for the Pentagon offers new revelations about the role the US Central Intelligence Agency (CIA) played in the shut-down of the military’s notorious Able Danger program, alleged to have identified five of the 9/11 hijackers inside America more than a year before the attacks.

    Lt. Col. Anthony Shaffer joins a growing list of government officials accusing former CIA director George Tenet of misleading federal bodies and sharing some degree of blame for the attacks. Shaffer also adds to a picture emerging of the CIA’s Bin Laden unit as having actively prevented other areas of intelligence, law enforcement and defense from properly carrying out their counterterrorism functions in the run-up to September 2001.”

  54. Cathy Elliott Jones’ essay about what The United States v. Aaron Swartz reveals:

    In agonizing detail, 603 pages of The United States v. Aaron Swartz has been released, exposing not only our broken legal system, but also the deadly, calculated precision with which the government broke a brilliant young man. Also revealed was more detail about the immunity agreement reached between Quinn Norton and Aaron’s tormentors, which resulted in her testifying before the federal grand jury that ultimately indicted him, and the affirmation that she would have been tapped to testify for the prosecution had Aaron been able to survive until a trial occurred.

    It is old news that @quinnnorton had been granted immunity, and testified before the grand jury. References to a “secret agreement with feds to avoid prosecution”; and “WIRED reporter #QuinnNorton soon to be 2nd most hated snitch in hacker community after #AdrianLamo” were circulating around Twitter as early as December 2011, all relying on a link to a single letter written on August 12, 2011, as an initial discovery response by United States Attorney Carmen Ortiz, who plays West Side Story’s spiteful and lonely Anita with remarkable accuracy as she struts and leads her band of Sharks. The link contained two sentences that ricocheted around the web:

    “3. Promises, rewards, or inducements have been given to witness Erin Quinn Norton. Copies of the letter agreement with her and order of immunity with respect to her grand jury testimony are enclosed on Disk 3.”

    But the release of the court case has reignited the controversy, along with the usual speculations, denials, and rationalizations. When @timeoutcorner tweeted yesterday: “Takes some serious balls to be all boo-hoo at the funeral of one’s ex, when one was paid to be a snitch against said ex. #Swartz” the reaction was fast and furious. @Asher_Wolf was her typically scolding self: “@timeoutcorner you need to stop. she took the 5th.” Apparently, Asher did not pause to check her facts with Quinn herself, who pleaded her own case by claiming: “my gj testimony didn’t do the prosecution one damn bit of good.”

    So, no dear Asher, you are incorrect when you assert about Quinn: “she took the 5th.” But the destruction of Aaron Swartz had already been long underway.

    Reading through the 603 pages that comprise The United States v. Aaron Swartz brought recurring images from Tom Wolfe’s Bonfire of the Vanities: Dissatisfied and disgruntled prosecutors screaming, “We’ve found him, the Great White Defendant!” But instead of a bankster fat cat as their fictional prey, Ortiz & Co. were not jealous of Aaron because they thought he had financial worth and lived a lavish lifestyle. It was worse than that. They wanted to add the Smartest Kid on the Block to their collection of skulls and items on their resumes, The One who counted among his close friends the likes of Lawrence Lessig; the Boy Wonder; the Internet sensation who wanted nothing more than freedom for all, and who was more revered than they will ever be as they toiled daily doing just the opposite: locking up the ever evolving definition of Bad Guys. It is reminiscent of the way the “gifted kids” were bullied in school before it became cool to be a nerd. But being a “nerd supremacist,” as Jaron Lanier wrote in the Atlantic, ironically on December 20, 2010 — just as Aaron was supposedly in the midst of his JSTOR/MIT escapades — has its own set hazards. Aaron found that out the hard way. (The Hazards of Nerd Supremacy: The Case of WikiLeaks, The Atlantic, December 20, 2010.)

    Evidence of this nerd backlash, born not just of envy but of fear, can be found in the government’s Motion for a Protective Order (Pages 77-82), filed on September 27, 2011, two and a half months after the grand jury returned an indictment on July 14, 2011, charging Aaron with four counts of wire fraud, computer fraud, theft of information from a computer, and this last one amuses, as though Aaron had been spray-painting graffiti: Recklessly Damaging a Computer. The motion asserts the necessity “to protect victims in the case from the very real risk of serious and irremediable harm while permitting the effective production of additional materials pursuant to Fed. R. Crim. P. 16 and the Local Rules of this Court.” Seven reasons were listed to justify this “very real risk of serious and irremediable harm,” and it is the final one that bemuses me the most:
    “earlier posted on one of his websites,, a call-to- arms entitled “Guerrilla Open Access Manifesto” which concluded “We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerrilla Open Access.” (Emphasis in the original.)”

    That he wrote those words when he was only 21 years old, and nearly two and one half years before the occurrence of events for which he was charged, apparently did not make them, or Aaron himself, any less “threatening” to our illustrious United States Attorneys. Instead, perhaps his youthful manifesto was the motivation for adding Aiding and Abetting to each of the charges he faced. Or perhaps he had company in his efforts to liberate knowledge. Perhaps the answer lies within the Ortiz letter itself.

    The letter itself was not rooted in altruism: the government is required by law to provide evidence to a defendant facing federal charges. How much evidence is provided is invariably a protracted battle. As Ortiz ticked through her obligatory list, she arrived at the category “Exculpatory Evidence Under Local Rule 116.2(B)(1),” Ortiz sniffed: “The government is unaware of any information that would tend directly to negate the defendant’s guilt concerning any count in the indictment. However, the United States is aware of the following information that you may consider to be discoverable under Local Rule 116.2(B)(l)(a).” And at the very bottom of the list were the damning words that revealed that Quinn had cut a deal:

    3. Promises, rewards, or inducements have been given to witness Erin Quinn Norton. Copies of the letter agreement with her and order of immunity with respect to her grand jury testimony are enclosed on Disk 3.” (Pages 100-108, the entry itself found on Page 104)

    But included in the same paragraph that is supposed to provide evidence that could exonerate Aaron, Ortiz also added:
    • While not a defense or material, one or more other people used or attempted to use scrapers to download JSTOR articles through MIT computers during the period of Defendant Swartz’s illegal conduct. On the evening of November 29, 2010, the network security team at MIT was contacted and investigated journal spidering occurring on the site of the Institute of Electrical and Electronic Engineers. It was tracked to a group of shared computers on which anyone at MIT can host a virtual machine. It was determined that a virtual machine had been compromised. The user was notified that scripts placed on it were downloading journals from JSTOR, IEEE and APS. The machines were taken offline early the morning of November 30, 2010. (Page 104)

    Other “witnesses” are referenced, including a “student” who allegedly identified Aaron from a photo (Page 103), and two “case-in-chief” witnesses are mentioned, but not identified. Inexplicably, that notoriety was reserved only for Quinn Norton.

    These revelations prompted a letter from Aaron’s attorney to Stephen Heymann (for some reason reminiscent of Richie Valens’ older, drawing-by-numbers brother in La Bamba), dated May 8, 2012, requesting production of additional discovery, including:

    11. Any and all Grand Jury testimony provided on or about June 16, 2011, and any memoranda of interview with Quinn Norton; (Pages 200-201)

    Heymann, who now calls to mind that dreaded teacher who always wanted you to show your work, requested that Aaron’s defense provide him with a “legal basis” for the discovery being sought. In a responsive two-page letter dated May 10, 2012, Aaron’s attorney addressed the ex-girlfriend issue by stating:

    3. As to paragraph 11, [Any and all Grand Jury testimony provided on or about June 16, 2011, and any memoranda of interview with Quinn Norton] Brady v. Maryland, 373 U.S. 83 (1963). (Pages 203-204)

    The Brady case is a landmark SCOTUS decision in which the prosecution had withheld from the criminal defendant certain evidence, in violation of the 14th Amendment. Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution’s witnesses, and evidence that could allow the defense to impeach the credibility of a prosecution witness.

    A subsequent discovery motion filed on June 6, 2012, by Aaron’s defense did not address @quinnnorton’s testimony and interview notes, so I assume they were provided — which the United States was obliged to do pursuant to Brady. However, it did request as follows:

    PARAGRAPH 15. This paragraph asked the government to “identify the origin of any and all statements of Aaron Swartz including but not limited to emails, text messages, chats, documents, memoranda or letters, i.e., to identify the source from which each statement was received and the legal procedure used to obtain each such statement of the defendant.” (Page 196)

    Further, the motion sought:

    Paragraph 1 requested that the government provide “[a]ny and all grand jury subpoenas – and any and all information resulting from their service – seeking information from third parties including but not limited to Twitter. MIT, JSTOR, Internet Archive that would constitute a communication from or to Aaron Swartz or any computer associated with him.”

    Paragraph 20 requested “[a]ny and all paper, documents, materials, information and data of any kind received by the Government as a result of the service of any grand jury subpoena on any person or entity relating to this investigation.” (Page 197)

    Being forced to duel for every scrap of evidence — whether harmful or helpful — seeps into the marrow of one’s bones. Further, a 16-page Superseding Indictment was filed by the government on September 12, 2012, adding an additional nine counts against Aaron — all 13 carrying the same Aiding and Abetting charge. (Pages 240-256)

    I assume that, when subpoenaed, Quinn Norton intended to invoke her 5th Amendment privileges. That right would have been co-opted by a crafty immunity deal — there is no need to refuse to testify if the testimony will not be self-incriminating. Still, without the immunity agreement, I am uncertain of the prospective success of an attempt by her to rely on 5th Amendment guarantees. Close family members can argue that they should not be forced to testify against each other, but cousins, nieces, nephews, and so on, are not considered close enough to qualify. (United States v. Seewald, 450 F.2d 1159 (1971)) As an ex-girlfriend, that argument would not have held up. If, on the other hand, she was considered a potential defendant, then an immunity deal would have been the only method by which to elicit her testimony.

    Since the released documents do not contain the information tucked into “Disk 3,” I will not speculate about the terms of the immunity deal, whether it was use immunity (meaning her testimony could not be used against her, but independently discovered evidence could), or if it was transactional immunity (meaning she could not be prosecuted at all in the matter about which she was testifying). One thing is certain: Quinn Norton was boxed in by The United States. How and why remains a mystery I cannot solve. Besides, it is not my story to tell. That right — to do so or to not — belongs only to @quinnnorton.

  55. ‘True Believers in Justice’ (with video)

    Published: January 23, 2013 5 Comments

    I’d always wanted to be a lawyer, but unlike Travis Williams — the subject of this Op-Doc video — I never wanted to be a public defender. I didn’t understand how anyone could represent people who did terrible things. “Criminals” were not people I wanted to help.

    A forum for short, opinionated documentaries, produced with creative latitude by independent filmmakers and artists.

    Then, in 2009, while working in the legal department at A&E Television, I met Jonathan Rapping, the founder of what’s now Gideon’s Promise. He invited me to his client-centered legal training program in Alabama. At the start of training, Mr. Rapping asked each lawyer to articulate why he or she chose to become a public defender. One young man said he had a brother with Down syndrome, so he wanted to help people who could not navigate the legal system for themselves. Another said he had been arrested as a teenager, so he wanted to help kids like him who didn’t know their rights. Their stories moved me. I learned more about the true state of the criminal justice system during that week than I knew from all my years practicing law. I wanted other people to learn about what they were doing and so I decided to make this film.

    I was horrified by what I learned about the criminal justice system. Innocent people, in prison for months or years, sometimes plead guilty to get out of jail; onerous sentences are too often given for minor crimes; people can lose civil rights, like the right to vote, as a result of criminal convictions. In America, a felony conviction can be a lifelong sentence because of this multitude of collateral consequences.

    I also saw what a difference it made to have lawyers like Travis fighting hard for poor people’s rights. I saw him tell clients and their families that they were facing long sentences, outrageous bail terms or prison. But I saw him deliver even the worst news with compassion, and I saw him fight for every client. He’s inspired me to judge less and listen more, to try to put myself in the position of people who face a terribly structured system that often provides justice to neither the victim nor the accused. Thanks to Travis and the other young lawyers I met on this journey, I can proudly say I’m a “true believer” in their cause.

    This video is part of a series produced by independent filmmakers who have received major support from the Ford Foundation and additional support from the nonprofit Sundance Institute.

    Dawn Porter directed and produced “Gideon’s Army” a feature documentary that is premiering at the 2013 Sundance Film Festival and will be broadcast later this year on HBO. She is a graduate of Swarthmore College and the Georgetown University Law Center.

  56. “Gideon’s Army”: Young Public Defenders Brave Staggering Caseloads, Low Pay to Represent the Poor

    “The new documentary “Gideon’s Army” follows a group of young public defenders in the Deep South who contend with low pay, long hours and staggering caseloads to represent the poor. The film’s title comes from the landmark 1963 Supreme Court ruling in Gideon v. Wainwright that established the right to counsel to defendants in criminal cases who are unable to afford their own attorneys. We’re joined by “Gideon’s Army” director and producer Dawn Porter, and Travis Williams, a Georgia public defender who is featured in the film”

  57. ap, That public defender situation is terrible. You cannot imagine what it is like in Texas. I once worked for a state legislator that was a public defender. He had a great sense of social justice.

  58. Obama sends tough prosecutor to police Wall Street
    2:22 PM ET, 01/24/2013 –

    SAN FRANCISCO (MarketWatch) — Sorry, Sallie.

    After weeks of vetting, courting and grappling, it appears that President Obama finally found his top cop for Wall Street. And no, it wasn’t someone who can easily be identified with the industry — unless you consider organized crime and terrorism branches of modern finance.

    There will be no Sallie Krawcheck, the former brokerage chief at Citigroup Inc. and Bank of America Corp. . It won’t be Mary Miller, the official in a Treasury Department considered cozy with bank interests. It wont be the internal candidate, enforcement chief Robert Khuzami — who has surprised Securities and Exchange Commission critics by tackling the chronic insider-trading problem. Read full story on Mary Jo White’s nomination.

    President Obama, perhaps trying to assuage critics who argue he’s been to lenient on the Street, will nominate Mary Jo White, a former prosecutor. You think Steve Cohen is intimidating? White took on mob boss John Gotti and al Qaeda.

    White’s reputation and career is a stark contrast to predecessor Mary Schapiro, a career bureaucrat who was viewed generously as a pragmatist. The critical view was that she may have been decent manager, but as a leader was ineffective and too easily pushed around — as her losing fight to regulate money market funds this summer revealed.

    White won’t be and shouldn’t be taken lightly. A 2002 interview with PBS revealed White to have an excellent relationship with the Federal Bureau of Investigation. And she spoke in terms of getting bad guys, not working with them: “We know who to look for, how they operated, where they operated,” she said of the terrorists. Read transcript of White’s interview on terrorism.

    In some ways, her task taking on the bad guys of finance will be tougher. Unlike gangsters and terrorists, insider traders and fraudsters will argue that they’re doing things the American way — through their high-priced attorneys. Big institutions will lobby against her dictums the way Fidelity Investments did this summer.

    But you can bet the public and investors will be better served by White than Krawcheck.

    — David Weidner

  59. Swarthmore mom,

    Starting with your links (thank you), I also found this:

    “Ms. White could face questions from Wall Street critics in Congress over her defense of Kenneth Lewis, Bank of America Corp.’s BAC +1.17% former chief executive, in a civil-fraud case.

    Other clients include the independent directors of News Corp NWSA -0.80% ., who hired Ms. White in 2011 during the company’s U.K. phone-hacking scandal. News Corp. owns Dow Jones & Co., publisher of The Wall Street Journal.”

  60. Fruitvale: Ryan Coogler’s Debut Film on Bay Area Police Slaying of Oscar Grant the Buzz of Sundance

    “It was four years ago this month that Oscar Grant, a 22-year-old African American, was shot to death by a Bay Area Rapid Transit police officer on New Year’s Day in Oakland, Calif. Portraying the last day of his life, the new dramatic film “Fruitvale” has become one of the most talked-about films at this year’s Sundance Film Festival. We’re joined by the director, 26-year-old first-time filmmaker Ryan Coogler, who works as a social worker at a juvenile-detention center in San Francisco.”

  61. AP,

    Thanks again. There is so much material illustrating the breakdown of America’s criminal justice system that the wonder is that people don’t universally accept it as proven. Although we must rely on whatever remainder of equitable treatment still exists, the reality of equity has departed so far from the theory that it calls everything about the system into question.

  62. “…the reality of equity has departed so far from the theory that it calls everything about the system into question.”

    …which sums it up nicely. (America is in more trouble than many realize.)

    Thanks for your honesty, integrity and wisdom, Mike S. I’m grateful for your postings, which offer hope and solace…

  63. This is an important essay, and I wish it had had the benefit of an editor. As it is, it is so poorly written that I was repeatedly distracted and finally gave up on reading the rest.

  64. Thank you for this insightful article. I believe that the biggest issue with our justice system is the public’s perception of its realities. Innocent until proven guilty? No, that’s not the reality. The reality is, in fact, the opposite, and the burden of proof falls to the defendant, especially if the defendant is poor. Everyone breathes a sigh of relief when someone is arrested for a crime – well, thank goodness THAT’S solved, and they got them off the streets. The truth is, few cases are clear-cut, caught-red-handed cases. People are incredulous that someone is incarcerated for 20 years for crimes they did not commit, but that’s not a few isolated incidents. False confessions, plea bargains…people don’t confess or plea when they’re innocent, right? Wrong. Face five charges that could amount to 50 years in prison (or life), or plea down to one or two charges, and possibly get out someday. Juries are comprised of humans, who are emotional, biased and frightened. Juries convict people all the time on circumstantial evidence. The truth is, the higher the crime conviction rate of a judge or other political figure, the more the public should be frightened of them. The other half of the equation is missing–they should be just as concerned about the public figure’s track record of proving innocence.

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