-Caveat Lector-
Newshawk:- Hopwood
Pubdate: January 13, 1999
Source: Anderson Valley Advertiser (CA)
Copyright: Anderson Valley Advertiser
Contact: [EMAIL PROTECTED]
Author: Tony Serra
KGB-ING AMERICA
The late 60s, when I started practice, were marked by a great number of
salient political causes, embodied in demonstrations in Berkeley and San
Francisco. I came to represent the White Panthers, the Black Panthers.
the Symbionese Liberation Army, and a number of other groups like the
New Liberation Front. I confronted a phenomenon then, which we hoped
would diminish, but which has instead increased steadfastly. I'll call
that phenomenon "The Secret Police Motif: Orwellian Prophesy Fulfilled"
or "The KGB-ing of America."
Informants: In every criminal case in our alleged system of justice,
some form of spy mentality is now present. There are degrees of
informants. We probably have more nomenclature for informants than does
any other culture. We have citizen informants, confidential informants,
confidential reliable informants, unnamed anonymous informants,
informants who are precipient informants who are participatory,
informants who are merely eye-witnesses, informants who are
co-defendants, informants who precipitate charges by reverse stings. We
are con-fronting informants and cooperating witnesses at every level:
preliminary hearings, grand juries, and state and federal jury trials.
Our system of justice is permeated by the witness or the provocateur who
is paid by government for a role in either revealing or instigating
crime. It's probably the greatest tragedy of my career, in terms of
whether or not justice is really pursued and whether truth is a
foundation for actualizing justice.
I reason: if the defense went out and bought witnesses-paid $10,000 for
one witness, $20,000 for another, and $50,000 for another for their
testimony - it would be laughable from the jury's point of view they
would soundly reject that type of witness; they would be called
obstruction of justice defendants and the lawyers would he prosecuted.
Obviously, you can't do that. On the other hand, in every major case the
informant or cooperating witness gets something far more precious than
money; they get liberty. They get 20 years or 10 years knocked off their
sentences. They get to settle in a new lifestyle with a new identity and
obtain a job or relocating in the federal or state witness protection
program. The government is paying their witnesses with freedom. The
witnesses have to deliver what the government wants or they don't get
that bargain. As a consequence the courts are rife with false testimony;
every cause is polluted by informants. The adversary system is tainted
because everyone rolls or becomes a government witness and therefore
there is no opposition. Constitutional rights aren't litigated because
cases are determined by how much evidence an informant or corroborating
witness can give you. At every level, the independent judiciary is
eroding.
It's something we confront every day. People in the American sub-culture
experience paranoia because they never know who is a spy or an
informant. There's paranoia in he court system because you never know
whether your co-defendant is recording you. There's paranoia among the
lawyers because you never know if your own defendant is rolling behind
your back and recording you. In my opinion, the singularly unexpected
and singularly and singularly aspect of our system of criminal
jurisprudence is the use of the informant.
Grand Juries: Back in the 60's the government used grand juries to some
small degree. Today, every Federal case - 99.9% of all Federal cases -
involves indictment by grand jury. That means no preliminary hearing, no
confrontation, and no lawyer present on the behalf of the accused. The
accused isn't there and doesn't see, hear or confront, or cross-examine
his or her accusers. The grand jury system by its nature is secretive;
it is considered a felony to reveal anything that occurred or what your
testimony was.
We have a kind of misplaced historical procedure. We inherited the grand
jury from English Common Law, where they used it to go after the lords
and persons who were otherwise above the law. In a sense it was needed
and justified then. But in our country, it is used now as an instrument
of terror. Everyone fears it. You have relatives testifying against one
another. With no confidentiality privilege with respect to family
members other than husbands and wives, you have parents called to
testify against their children. Children are called to testify against
their parents, and brother against sister, and so on. It lacks all due
process. It is immoral. It is an instrument of oppression. It's another
secret tool of an expanding executive branch.
Mandatory Sentences
"Three Strikes" types of penal laws are prevalent both in federal and
state jurisdictions. Beyond that, in most federal cases, at least in
drug cases, but spilling over into other arenas, the sentence is really
set by the legislative process and by the executive-that is, the law
enforcement agencies. They mandate what sentence is going to occur by
how they file charges. The judiciary lacks power or discretion to vary
much, if at all, from the mandatory sentencing and its attendant
guidelines. You have a fatal shrinking of the balance of powers. We're
all taught that our constitutional form of government works because of
its tripartite system: executive, legislative, judicial. When mandatory
sentencing occurs, the
legislative, actualized by the executive, has swallowed up the
judiciary. We do not have an independent judiciary. We have a
rubber-stamp judiciary.
We never anticipated in the 60s that one-third of the adult black
population in the United States of America would he either in custody or
on probation or parole. We have eliminated a whole generation of blacks
by incarcerating the youth; the ugly head of racism appears both as
built in ~ implied conditions in the law itself - and in how people are
charged. So you have a revisitation of something that we thought was
eliminated in the 60s: weakening of the judiciary as an independent
body. And the recurrence of racism wedded to mandatory sentences that
lock people away for inordinate periods of time.
We all know the platitude that our country presently has more people in
jails or prisons than any other country in the history of the world.
That was unpredictable in the 60s. We thought things were getting
better. We thought that more freedom was going to occur, more
understanding. more compassion, more brotherhood and sisterhood, more
actualization of constitutional rights, aq more equal division of
resources. Those motifs of the 60s have been sadly aborted. What we have
instead is approaching a police state that is investigated by undercover
officers and informants, with judges' hands tied and prosecutors
obtaining prison sentences that we could never have conceived.
No Bail
The notion of bail is vastly eroding. We have a concept now built into
the law called "preventive detention," a euphemism that probably only
totalitarian states could create. But what that means is that in most
major cases, there's a presumption against bail. They don't have to give
you bail. We're taught as children that in anything other than a capital
offense, reasonable bail must be afforded. A presumption of innocence
underlies our system of criminal jurisprudance; we have a strong history
of not holding people in custody until their guilt or innocence has been
determined. That's not true anymore. Right now, the custodial status in
preconvicted sentences-people who have not yet been sentenced is
astronomical and the jails are filled not only with convicted people,
but with unconvicted people. We think that there are laws that establish
rights to a speedy trial in both federal and state cases, people
languish in custody one or two years awaiting trial. It's what I'll call
another plot, an agony visited upon criminal justice. In the 60s, we
were naive, we were optimistic, and we believed that reform and new and
enlightened ideas would ventilate through the judicial system. Instead,
in most areas, the system has clamped down.
Some of us are crying out. The legal profession cries out like the
miner's canary. We're saying, "The government is too strong. Beware!"
'"The jury system is being poisoned by propaganda. They're not fair and
impartial any more. Beware!" "Racism is creeping back into our system of
justice. Beware!" We hope that if we at least keep an eye on the
situation and report it in a dramatic fashion, then another generation
may do what we thought we were doing in the 60s, and swing the pendulum
back. Because if the pendulum doesn't swing-judicially and courtwise ~
we are approaching a totalitarian state never before experienced in this
country.
Tony Serra,
the author is a well known North California defense attorney
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