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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.http://jonathanturley.org/2013/01/15/prosecutor-of-aaron-swartz-linked-to-another-suicide-of-defendant/

http://jonathanturley.org/2013/01/14/aaron-swartz-and-the-obama-administrations-war-on-public-access-to-information/

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:  http://jonathanturley.org/2011/11/26/the-incarceration-of-black-men-in-america/ . 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.” http://www.cato.org/sites/cato.org/files/serials/files/regulation/2003/10/v26n3-7.pdf

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. 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, guerrillaopenaccess.com, 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.

  2. 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

    http://truth-out.org/news/item/14008-ex-army-officer-accuses-cia-of-obstructing-pre-9-11-intelligence-gathering

    “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.”

  4. 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.”

    http://techcrunch.com/2013/01/21/ipad-hack-statement-of-responsibility/

  7. “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.

  8. 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.

  9. 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.

  10. 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.

  11. @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.

    1. 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”.

  12. 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?

  13. 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.

  14. 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.

  15. 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.

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

    Nick,

    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.

  17. “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.”

    Tony,

    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.

  19. “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?

  20. @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.

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