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November 23, 2008

"From my cell, I scent the reeking soul of US justice"

The title of this post is the title of this piece appearing in London's Sunday Times authored by Lord Conrad Black.  Here are excerpts from today's must-read:

I write to you from a US federal prison. It is far from a country club or even a regimental health spa. I work quite hard but fulfillingly, teaching English and the history of the United States to some of my co-residents. There is practically unlimited access to e-mails and the media and plenty of time for visitors....

US federal prosecutors, almost all of whom would be disbarred for their antics if they were in Britain or Canada, win more than 90% of their cases thanks to the withering of the constitutional guarantees of due process – that is, the grand jury as an assurance against capricious prosecution, no seizure of property without just compensation, access to counsel, an impartial jury, speedy justice and reasonable bail....

The system is based on the plea bargain: the barefaced exchange of incriminating testimony for immunity or a reduced sentence. It is intimidation and suborned or extorted perjury, an outright rape of any plausible definition of justice.

The US is now a carceral state that imprisons eight to 12 times more people (2.5m) per capita than the UK, Canada, Australia, France, Germany or Japan.  US justice has become a command economy based on the avarice of private prison companies, a gigantic prison service industry and politically influential correctional officers’ unions that agitate for an unlimited increase in the number of prosecutions and the length of sentences.  The entire “war on drugs”, by contrast, is a classic illustration of supply-side economics: a trillion taxpayers’ dollars squandered and 1m small fry imprisoned at a cost of $50 billion a year; as supply of and demand for illegal drugs have increased, prices have fallen and product quality has improved....

I would be distinctly consolable if the United States really was in decline and I have more legitimate grievances against that country than do The Guardian or the BBC, but it is still a country of incomparable vitality even as its moral, judicial soul atrophies and reeks.

Gosh knows I really enjoy the musings of federal defendants not afraid to speak their minds like Lord Black (and the full draft of these latest musings can be found at this link).  I am not sure that this fascinating commentary from a federal prison will help Lord Black in his pending request for executive clemencyfrom President Bush, but one never knows precisely what is likely to prompt an out-going executive to exercise his absolute and unreviewable clemency powers.

November 23, 2008 at 10:11 AM | Permalink


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What Mr. Black misses is the larger picture that we live in a cultural society that seeks to make everything illegal. The real issue is our cultural thirst to regulate the finest details of the lives of our fellow citizens. The cost is not the cost of getting tough on crime, the cost comes from the fact that there is too much crime because there is too much behavior that is illegal.

It's worth pausing and asking ourselves if we really could live in a modern world where the Ten Commandments, and only those ten, were the law. I think so, but most people don't. So long as we elect political leaders who have to "do something" and so long as that "something" is passing more laws, things are going to get much worse. I long for the day when a Congressional Session can happen and during that session not a single law is passed.

Posted by: Daniel | Nov 23, 2008 3:30:28 PM

He comes off as a nut and now I have no sympathy for him. Since he did not explain what behavior of AUSAs would, if done by their counterparts in Canada or England would get them disbarred, I now want him to spend more time in jail.

No pardons for him.

Posted by: S.cotus | Nov 23, 2008 5:28:23 PM

Whats funny is S.cotus calling somebody a nut? Of all people!

Posted by: Tarheel | Nov 23, 2008 7:56:50 PM

Hey.. if you run a blog covering every decision from ANY circuit for the past few years, I will gladly accept the label "nut."

Posted by: S.cotus | Nov 23, 2008 9:24:24 PM

Well, in many countries evidence obtained in elaborate sting operations is not permitted. Witnesses who are compromised by receiving a % of forfeiture or a reduced sentence are not permitted to testify. Prosecutors are much more aggressive and are given more power in the US.

Conrad Black is not alone in his evaluation of the US Justice System. Our Criminal Justice System has morphed into a very uncivil and harsh institution. It coarsens our culture.

Posted by: | Nov 24, 2008 12:28:27 AM

It's hard to take a moral indictment from a unrepentant thief very seriously, that is unless you are so desperate for validation of your theories regarding the U.S. criminal justice system you'd stoop to any lengths and promote any source, no matter how invalid and revolting, to make your point.


Posted by: dweedle | Nov 24, 2008 8:50:32 AM

Beth, In what country is the “elaborateness” of a sting operation grounds for suppression of evidence. See, when you don’t provide me with specifics it makes me think that you are either lying or not a lawyer. Neither is acceptable.

Conrad Black can say whatever he wants. Without specifics he sounds like a nut.

The next commentator is even less coherent.

Posted by: S.cotus | Nov 24, 2008 9:37:45 AM

"invalid and revolting"

Try making an argument, "dweedle." Instead of undermining the source, attack the points that the source makes. If you can, that is. If you can't, then you should acknowledge the points made. The weak and uneducated resort to attacking the source.

You attacked the source so let me ask: why is the perspective of a criminal defendant concerning the justice system not of value? Clearly, "dweedle," you have never had any familiarity whatsoever with criminal defense, and you likely have never shaken the hand of a criminal defendant. The mere fact that a person who is a criminal defendant offers an opinion does not make the opinion worthless.

Posted by: John | Nov 24, 2008 9:38:40 AM


He is not specific and so maybe to you he comes off as a nut. The fact that he comes off as a nut to you tells me that you have no familiarity with criminal defense. Based on your past posts, I have the feeling that you have an affinity for AUSAs. Your BFF (best friend forever), as my daughter would say, I'd bet is one. Or maybe you married one.

To this criminal defense lawyer, his non-specific points are valid. My own specific experiences fill in the gaps that he leaves.

For example, he writes: "The system is based on the plea bargain: the barefaced exchange of incriminating testimony for immunity or a reduced sentence. It is intimidation and suborned or extorted perjury, an outright rape of any plausible definition of justice."

Now, you could argue that cross-examination is a sufficient check on false testimony. Maybe if a defendant has the highest skilled criminal defense lawyer, it is a sufficient check. But for the vast majority of criminal defendants, cross-examination will not uncover false testimony, or will not put testimony offered in exchange for a plea in the proper light. That's the reality. Snitches routinely lie, and defense counsel routinely fails to uncover the lies. What is the remedy? According to Black, look at the manner in which other countries treat testimony offered in exchange for a reduced sentence and revamp the system. How do other countries treat such testimony? It would be worthwhile to find out.

For a good read, check out "Police Interrogation and American Justice" by Richard A. Leo.


Posted by: John | Nov 24, 2008 9:56:30 AM

I haven't read Mr. Black’s full article to see what examples (if any) he provides to justify his conclusions, but the quoted assertions hardly sound like the musings of a “nut.” The federal reporters are full of opinions tsk-tsking improper arguments or evidence that our Circuit appellate judges affirm under the fantasy that jurors follow instructions limiting the use of 404(b) evidence, for example, or telling jurors to disregard improper argument or questioning. Prosecutors invoke this fictional rule as justification itself for any improper evidence/argument they bring in knowing that the vast majority of United States jurists will indulge this fantasy. Black jurors continue to be expelled from federal juries based on the prosecutor's imaginative speculations about these jurors's demeanor -- concerns that AUSA's never seem to infer from the demeanor of white jurors, and federal judges view with contempt the very idea that the friendly assistant United States attorney would even subconsciously be motivated by the excluded black juror's race. And of course law blogs ridicule anyone, like Mr. Black, who suggests something stinks about the United States Criminal Justice system.

Posted by: gma | Nov 24, 2008 10:04:21 AM

John, Considering that I am predisposed to criminal defense (in ways I don’t go into on here), I can assure you that I am not married to, or having sex with, any AUSAs. But, I am not a “true believer.” I believe that any arguments as to legality should be backed up with specifics, citations, and authority. I believe that criminal defense is a sport. Despite the fact that I demand this of everyone (including ninnies like “Federalist” who wants to put everyone in jail), people like you think I automatically “side” with the prosecution just because I want to call some nut to account.

Now, I agree that plea bargains in exchange for certain testimony are a problem. But, that is a very specific critique, and there are specific remedies and prophylactic measures to deal with such problems (in fact, as you know, any promises made to the defendant are discoverable). Whether individual defense counsel can uncover a snitches’ lies seems to vary from case to case. A random citation to a book doesn’t advance the conversation.

GMA, Assuming that the race of a juror makes a difference, you don’t seem to provide any specific analysis of whether Batson challenges are routinely dismissed. In fact, recent caselaw has demanded that trial judges pay Batson challenges even more scrutiny. I have probably spent more time than others showing how some courts appear to give a green light to “prosecutorial misdoncut.” Hell, I call it exactly that on my blog. But, I should note that while most cases of prosecutorial misconduct are considered harmless error, enough are grounds for reversal, such that there is now a common law in most circuits as what sort of remarks will be cause for reversal.

Black’s article is a waste. I find it hard to believe that someone rose to his position with such obvious disregard for his audience that he does not cite specifics. Is this the way he expected his underlings to write for him? If someone sent him an example of their “work” that looked like his, would he have hired him?

Posted by: S.cotus | Nov 24, 2008 12:19:36 PM

There is an elaborate case that was developed by Scotland Yard in the early 90s. It was a money-laundering case that set up among others a British attorney by the name of Finch. There was a Mayfair based financial services company established by Scotland Yard to lure various known and unknown criminals and officials. When they were brought to trial, Judge George Bathurst Norman dismissed all with the statement that the operation was massively illegal, and British law does not allow entrapment. The Informant's name was Wilkins aka Patrick Faye. He lived till his death in Gibralter. I am somewhat familiar with this case and know that it sharpens the differences between countries.

French law, until quite recently (the 90s) did not recognize plea bargaining at all. It is now used marginally, but only in cases that would involve incarceration of under a year. This effectively eliminates the use of plea bargaining to coerce a defendant to testify for a reduced sentence. The French Justice System operates on the assumption that plea bargaining gives too much power to public Prosecutors and would dilute the presumption of innocence.

Swiss law has never perceived tax evasion to be a crime.

These differences explain to some extent the difference in the % of incarceration. European Advocates are somewhat astounded by the prosecutorial zeal of AUSAs.

Posted by: | Nov 24, 2008 8:36:35 PM

I believe this was a comment in the editorial page of a newspaper, not a law review article, so the absence of "specifics, citations, and authority" comes as no surprise to me and certainly does not lead me to believe the author is a "nut". S.cotus hones in on and complains about one of Mr. Black's assertions -- that prosecutors in other nations would be disbarred for what he suggests amounts to subornation of perjury. I expect most lawyers and law students would not demand documentation or examples in order to accept as plausible such an assertion, at least where it appears in an op-ed piece.

Posted by: | Nov 25, 2008 8:30:50 AM

Nov 24, 2008 8:36:35 PM, Entrapment is a defense in the US as well. However, Black is not arguing that he was entrapped. (Moreover, “outrageous government conduct” is also grounds for dismissal of charges.)

French law likely does not “allow” plea bargaining, because judges are involved in the process from a much earlier point and have a greater command of the facts. So, put simply, one can’t compare this part of criminal procedure in a civil law country to a common law country. A country’s choice of what to make illegal is pretty much its own.

“I expect most lawyers and law students would not demand documentation or examples...”

This is what separates lawyers from people that hate America. I don’t know of any lawyer that would take such a bald-faced assertion from an accused criminal (and some would say “unrepentant thief” on its face in the US. It isn’t a matter of merely being “plausible.” I want specifics. If you expect me to condemn my own system of justice, I can’t go on Black’s vague assertions. (Generally, I do not read publications aimed at non-lawyers, but since they made it onto this blog I guess I gotta deal.)

Posted by: S. COTUS | Nov 25, 2008 11:06:56 AM

Shall you just ignore the blazing evidence before you?
The DE US Attorney has confessions to 34 separate acts of False Affidavits by Officers of the Court and the DE Dept of Justice not only refuses to prosecute or investigate, they turn on this whistle-blower.
Do you consider it a crime when a US Attorney does not disclose that he is refusing to investigate the Law firm he was a partner of?
Is it a crime - simple Yes or No - for the CA Dept of Justice office to shut down and dismantle the Public Corruption Unit when it was due to make a response to our 18 USC 3057(a) complaint on the DE fiasco?
Was it just bad form or a criminal act for the CA US ATtorney to Threaten career prosecutors to be silent?
How much documentation do you need - before you admit there is something amiss?

Posted by: Laser | Nov 25, 2008 12:24:49 PM

Yes entrapment is a defense in the United States. However, when not nuanced, entrapment means entrapment - as in Britain. Entrapment does not require more. Words matter, and have meaning without more interpretation.

Posted by: | Nov 25, 2008 5:11:36 PM

Laser, You sound like a nut, and a vague reference to a statute doesn't a citation make.

"Yes entrapment is a defense in the United States. However, when not nuanced, entrapment means entrapment - as in Britain. Entrapment does not require more. Words matter, and have meaning without more interpretation. "

Can someone else translate this into English?

Posted by: S.cotus | Nov 26, 2008 12:59:17 AM

"French law likely does not “allow” plea bargaining, because judges are involved in the process from a much earlier point and have a greater command of the facts." Citations? Authority?

"A country’s choice of what to make illegal is pretty much its own." Did someone suggest otherwise? Did Mr. Black?

"If you expect me to condemn my own system of justice . . . ." I don't expect anything out of you. I did not see where Mr. Black expected you to "condemn" the "system of justice."

"I want specifics." Understood. But you're unlikely to get citations and authority in an op-ed piece.

"I do not read publications aimed at non-lawyers. . . ." This is quite obvious. However, you might try reading a nonlegal daily occasionally to get a flavor of nonlegal writing and a basic understanding that it does *not* usually contain citations to legal authority.

"This is what separates lawyers from people that hate America." Now who sounds like a nut?

The reality is that you read a post which referenced a comment appearing in a publication of the sort you admit you generally do not read. But rather than take it for what it is (an opinion on an editorial page) and move on, you just *had* to post a comment. Your comment does not actually dispute the substance of Mr. Black's comment, or even address it at all for that matter. Instead, you chose to start out by describing the man as a "nut" and wishing him additional incarceration because he did not "explain what behavior of AUSAs would, if done by their counterparts in Canada or England would get them disbarred" (which Mr. Black actually did and if you bothered to read his comment, you would know this.) When challenged on your inane remark, you became defensive and went completely off topic in an apparent effort to persuade others here how much more knowledgeable than them you are in your opinion. In the process, you suggest other posters are either liars or incompetent or "ninnies."

Face it. You are not interested in reasonable discussion of the topic at hand. Instead, you appear to be interested only in seeing your own words online. Your hubris has grown tiresome. Give it a rest.

Posted by: | Nov 26, 2008 10:32:00 AM

Oh, well, if you want to proclaim that there is some generalized problem with criminal justice in the US, go ahead. But, that isn't really fertile grounds for discussion.

Posted by: S.cotus | Nov 26, 2008 11:11:39 AM

You are right. I do need to translate. Sting operations in the US are routine. Law Enforcement is contacted by someone who wants charges against them reduced or eliminated. Together they conceive a criminal enterprise and approach others using various forms of persuasion in order to get them to agree to participate. At that point they are arrested and charged. This is what passes for criminal investigation.

This is a criminal investigation in the US - In Britain it is entrapment.
This is a difference in the definition of the word entrapment.

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