Climbing the Prosecutorial Wall to Politics

Ask me who are the salt of the Earth, and I’ll answer “criminal defense attorneys.” For many an unfortunate, they are the first and last line of defense, and even though the criminal bar has its share of frauds and deadbeats, it is packed with selfless types who work extremely hard for not much money. They see the system in all its arrogance and cruelty and fight it every day.

One of the best defense attorneys on the West Coast is Tony Serra, famous for defending Native Americans. I shared a platform with him one time, raising money for his defense of Bear Lincoln, charged with killing a sheriff’s deputy in Mendocino County. At that time, Serra beat the capital charges, a tremendous achievement in a county not noted for its compassion toward the first Americans.

At that time, Serra gave a striking account of what he called the “KGB-ing of America.” From time to time, he reprises the theme and it is worth repeating.

Problem No. 1: Snitches. Ever since torture was phased out in the early 1930s as the prime investigative tool of law enforcement, the culture of snitching has metastasized. Our system is permeated by the witness or the provocateur who is paid by government for a role in either revealing or instigating a crime.

As Serra notes, if defense attorneys went out and bought witnesses, they’d be hit with charges of obstructing justice. But prosecutors routinely slip witnesses wads of cash and hold out that infinitely potent bribe: freedom or the prospect of freedom on an accelerated schedule. Ask yourself: How great is the power of a bribe to knock 10 years off a prison term? What’s that worth in cash? What cash is the equivalent of 10 years’ liberty? And so the texture of criminal justice is that of snitching, of confecting false testimony, of bearing false witness. The beating heart of the criminal justice system today is the snitch.

Serra’s next complaint is about grand juries, whose use has grown at a staggering rate over the past generation. “Today,” Serra says, “99.9% of all federal cases involve indictment by grand jury. That means no preliminary hearing, no discovery prior to indictment, no confrontation, no lawyer present on behalf of the accused.” (Unless you happen to be Bill Clinton, president of the United States.) “The accused isn’t there, and doesn’t see, hear, confront, cross-examine his or her accusers.” It can be a felony to disclose anything that happened or what your testimony actually was. We were given a lurid illustration of the abuses this secrecy can engender when Monica Lewinsky’s grand jury testimony was made public. We were able to compare her words with independent counsel Ken Starr’s misrepresentation of them in his report to Congress.

Next: mandatory sentences, which are an obvious abuse of the constitutional principle of separation of powers, since law enforcement agencies now stipulate the sentences and the judiciary has to go along. Serra defines this abuse well: “When mandatory sentencing occurs, the legislative, actualized by the executive, has swallowed up the judiciary, which becomes a rubber stamp.”

Serra also points his finger at the erosion of bail. These days there’s a presumption against bail, and consequently an onslaught on the fundamental presumption of innocence. The jails are filled with unconvicted people.

Finally, there is the constitutional right to a “speedy trial”--a right fast becoming a joke, as people languish behind bars for a year or more, with no more legal representative speed than a drowsy snail.

There you have it. The cops abuse your 4th Amendment protections against search and seizure and arrest you; you are denied bail or have bail set at a prohibitive level; so you sit in jail for a year, after which a jailhouse snitch tells the prosecutors you confessed to him; you go up before a jury and are convicted on the basis of false testimony, and mandatory sentencing puts you away for 15 years.

Will the pendulum swing the other way and the savage assault on basic liberties be repelled? Despite a recent appeals court ruling to the contrary, perhaps one day the U.S. Supreme Court will agree that promises of reduced sentences to snitches constitute a prosecutorial bribe. Perhaps the court will also agree that mandatory sentences are unconstitutional. Perhaps grand juries will be curbed, at least in the sealed nature of the proceedings. But nothing will happen unless people start campaigning on the issue and unless a stint in a prosecutor’s office stops being one of the prime avenues to a political career.