Even Judges Who are Former Federal Prosecutors Know the Government Bullies Defendants Into Guilty Pleas

Sentencing Abuse Alleged by Judge

A federal judge said that the Justice Department routinely abuses its power to bully defendants into giving up their constitutional right to a trial.

By Devlin Barrett

Oct 18, 2013 – Wall Street Journal – News

A federal judge said that the Justice Department routinely abuses its power to bully defendants into giving up their constitutional right to a trial.

Judge John Gleeson, who as a federal prosecutor sent the late mafia boss John Gotti to prison, said in an opinion earlier this month that prosecutors are using the threat of decades or life in prison to extract guilty pleas even if the defendants’ alleged crimes fall far short of meriting such long sentences.

Such tactics are “unsound and brutally unfair” and create “the sentencing equivalent of a two-by-four to the forehead,” the judge said in a 60-page sentencing opinion on a New York drug case.

“The fact that they are business as usual doesn’t alter the fact that these sentences should instill shame in all of us,” Judge Gleeson wrote, saying the tactic will force some innocent people to plead guilty. Nominated to the federal bench by President Bill Clinton, Judge Gleeson has been a district court judge in Brooklyn, N.Y., for nearly two decades.

The long-standing practice has helped federal prosecutors garner an enviable conviction record. Currently 97% of criminal charges in all federal jurisdictions end in a guilty plea, which means the vast majority of federal criminal cases never go to trial.

Attorney General Eric Holder recently announced major changes to Justice Department use of mandatory minimum prison sentences in drug cases, saying prosecutors should use their discretion to seek fewer long sentences for nonviolent offenders.

Judge Gleeson praised those efforts but said the problems created by mandatory minimums are “small potatoes” compared with the problems with plea negotiations. While Mr. Holder’s memo also included some cautions on using threats in plea negotiations, Judge Gleeson called the guidance weak and said it wouldn’t stop prosecutors from using hardball tactics as “sledgehammers against the ever-dwindling few who have the temerity to ask for the trial the Constitution guarantees.”

At issue is what lawyers call a prior felony information, or 851 notice–a legal warning that prosecutors intend to lengthen a mandatory sentence for drug offenses based on a defendant’s prior convictions. Once prosecutors file the notice, the longer sentence, often life, is mandatory if the defendant is convicted. The law was originally intended to hit narcotics kingpins and hardened criminals, but the judge said it has been abused to coerce pleas because the 851 notice can trigger automatic sentences of decades or life. Prosecutors often threaten to file 851 notices in verbal negotiations conducted without a judge–leaving no trace in a written records.

A Justice Department spokeswoman said the agency “agrees that sentencing enhancements should not be used to coerce defendants. Moreover, the attorney general’s reforms seek to further ensure that they [851 notices] are used only in cases appropriate for severe sanctions.”

William Otis, a former federal prosecutor, questioned whether an 851 notice would force an innocent person to plead guilty. “The reason people plead guilty is because they are guilty,” he said. “Judge Gleeson is saying that something that has been approved by the Supreme Court for decades is a kind of extortion. Since when is it extortion for a federal prosecutor to follow Supreme Court law?”

Mary Price, a lawyer for Families Against Mandatory Minimums, said it isn’t enough merely to tell prosecutors they can use discretion in handling nonviolent offenders. “There is incredible pressure on the system to push people through,” she said. “The 97% guilty plea rate shows that in a lot of ways, the system is broken.”

Judge Gleeson’s opinion involved Lulzim Kupa, a New York City man charged with selling cocaine after two prior drug convictions. In March, prosecutors gave him a day to accept a deal in which he would likely serve about eight years in prison for pleading guilty. When he didn’t accept it, prosecutors filed an 851 notice–meaning that if he was convicted, he would automatically get a life sentence.

The prosecutors offered to withdraw the 851 notice if he pleaded guilty in a deal to serve about 91/2 years in prison. Again, he was given a day to decide and didn’t act. He finally took the third plea offer, which gave him a likely prison term of 10 years. “I want to plead guilty, your honor, before things get worse,” Mr. Kupa told the judge.

Mr. Kupa’s lawyer, Gerald McMahon, said Judge Gleeson “is a purist, who loves the law. He is Don Quixote tilting at windmills, but I love him for it.” He said prosecutors “manipulate the guidelines, they do it all the time, and nobody calls them on it, except for the rare, rare exception.” Mr. McMahon said Judge Gleeson’s opinion is important “because he’s very well respected. It helps incrementally. It’s not going to turn it around in one day, but to the extent the ball is rolling, this gives it another push.”

Government Looks for Basketball-Score Sentences – Again

Now the government is trying to get a federal judge to sentence 3 public officials convicted of corruption to up to 150 years in prison.  The defendants went to trial and were convicted, though they had very fine lawyers.  But what the government is doing is trying to impose a “trial penalty” imprisonment sentence.  The government wants everyone to plead guilty, and to accomplish this, their tactic is to seek absurd sentences so that “the next guy” will be more willing to plead and cooperate, instead of exercising his constitutional right to make the government prove him guilty.

Already in the federal sentencing scheme — advisory guidelines — a defendant gets 2 to 3 levels’ reduction in his or her sentencing guidelines just by pleading guilty.  This is not enough for some prosecutors though — they want to hurt those people just because they believe in the Constitution.

Read More Here

James Burdick: Michigan’s Premier Federal Criminal Defense and Healthcare Licensing Lawyer

Burdick Law, P.C. is associated with six leading criminal defense lawyers in Michigan; I’m one of the six.

I’ve been a practicing lawyer for over four decades, first as a prosecutor, and since then as a criminal defense lawyer.  In both capacities, though, I was always taught – and have always lived up to – the belief that individuals accused of criminal violations are entitled to two things: the truth, and zealous advocacy.  As a prosecutor, I was taught the “old way,” that my job was to seek justice, not merely “win cases.”

The others associated with Burdick Law, P.C. include a former Oakland County prosecutor, two former Assistant United States Attorneys, a former Federal Defender’s Office senior lawyer, and one lawyer who always says he would rather cut off his hand than “put people in jail.”  (Believe me, he’s not kidding.)  We will all be contributing to this Blog from time to time.

Sadly over the last 25 years or so, reactionary elements have crept into the once fairly ethical criminal justice system, and their political agendas have caused the whole system to go off the rails.  It’s become far more common for some prosecutors to withhold evidence critical to the defense, even though it’s required to be revealed under the law.  More and more prosecutors have become gunslingers, out for notches on their guns of conviction, and not so much to do justice.

So the job of the defense lawyer has become as much about finding the truth that some prosecutors work hard to hide (and some others believe is not “relevant” to be shared) as much as advocating at a trial before a jury.  One thing many non-lawyers often are not aware of: it’s not always a question – as TV and the movies pretend – who is innocent versus who is guilty; instead, there are gradations of guilt and responsibility.  Often the best service a lawyer can offer a client is “damage control.”

In the federal court system, unlike all too many state courts, it has been my experience that federal prosecutors very rarely, if ever, knowingly bring an indictment – criminal charge – without sincerely believing there is just cause to do so.  In other words, most federal prosecutions are based in a government lawyer’s sincere belief that there was a crime and that this defendant committed that crime.  In those cases, it’s the job of the ethical and committed defense lawyer to try to negotiate a resolution of the case which is fair to both sides (naturally worrying more about his client than the government – the government can fend for itself, right?), and with the least damage to his or her client.

One of the important issues this Blog will address is that knowledge is power – good, and even bad, politicians over the decades have held firm to that belief, as do all successful business operators, and lawyers.  In the context of a criminal – or James Burdickistrative healthcare licensing – prosecution, knowing all there is to know about the case, the client, the government’s witnesses and physical evidence, gives the defendant and lawyer the best prospect for either victory at trial, or victory in damage control.  And that’s what this Blog is all about.  Letting you, the readers, know what you should about the system, what you need to know.

Many of our readers, we expect, will be the merely curious; some will be people accused of crimes or being investigated; and some will even be prosecutors – yes, the good ones scour the Internet for as much information about their opponents as their prosecution targets.  Critically, too, some will be jurors sometime in the future.  Since almost all of TV and movie dramas, and all of reality-TV “cops” shows, foster in the public the notion of where there’s smoke there’s fire.  To put it more critically, the average citizen is spoon-fed the belief that police and prosecutors wouldn’t bring charges if the defendant weren’t guilty.  Wrong, wrong, wrong.  This Blog is intended to level the playing field, so that the slanted information spoon-fed to news media outlets by prosecutors can be better understood and evaluated, and seen for what it really is, by those readers who care about justice, honor, integrity and decency.

Not just prosecutions of the “wrong guy,” but constant over-charging of the “right” person, is rampant these days.  An over-the-limit driver gets into an accident – not even because of his alcohol consumption – in Michigan, and someone is killed – the state law says that’s manslaughter, a 15-year felony.  Why, then, do so many suburban prosecutors’ offices charge second-degree murder instead?  Simple, because that carries life in prison.  And this massive overcharging forces people to plead guilty to the “lesser” offense of manslaughter.  That’s not honest prosecution, that’s not ethical, and it sure is not a search for the truth.

This Blog is intended to give you, the reader, a more accurate portrayal of what the law is, what it isn’t; how truth can be discovered, and how truth is so often hidden by unscrupulous prosecutors.  To put a point on it: in the last 10 years or so, “Innocence Projects” around the country have succeeded in setting some 250 innocent people free from prison – and even death rows – by proving through DNA that he, or she, could not have committed the crime.  But here’s the real tragedy: of those cases, over 25% of those exonerated individuals had been tricked or forced into what we now know were false confessions.  DNA doesn’t lie – they were unmistakably innocent, yet they confessed.

And think about this: 95% of criminal cases do not have any bodily fluid evidence that can be DNA-tested (sweat, saliva, semen, etc.); so, ask yourselves: how many more innocent people are languishing in jails and prisons, but who can never be exonerated because there was no DNA to be tested?  Statistically, there must be thousands.  And how many similarly innocent defendants have been put to death because there was no DNA evidence, or they were executed before DNA testing was ever discovered?

The truth about false confessions will be one of the primate topics of this Blog – and those who think “why would he confess if he didn’t do it” are in for a big surprise.  So too the truth about prosecutors who lie, cheat and steal just to get convictions.  Let’s start with one case in particular, from an article in the American Statesman by reporter Chuck Lindell.  A sitting Texas judge, former prosecutor, intentionally hid evidence in a murder trial from the defense, resulting in a fraudulent conviction and 25 years in prison of an innocent man:

Current Texas judge, and former Williamson County District Attorney, Ken Anderson was arrested and booked into jail and then released on bail Friday after a specially convened court found that he intentionally hid evidence to secure Michael Morton’s 1987 conviction for murder.

In a blunt and scathing ruling, District Judge Louis Sturns said Anderson acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison.

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

Sturns, presiding over a court of inquiry that examined the Morton prosecution, found probable cause to believe that Anderson broke two state laws and committed criminal contempt of court for lying to Morton’s trial judge. He then signed a warrant for Anderson’s arrest as required under state law governing courts of inquiry.

Bail was set at $2,500 each for the three findings, said Rusty Hardin, who acted in the role of prosecutor in the court of inquiry. After being booked and photographed, Anderson walked out of the Williamson County Jail shortly before 5:30 p.m.

Sturns’ ruling is the first step in a potential criminal case against Anderson, who was Williamson County’s celebrated law-and-order district attorney for 16 years before he became a district judge in 2002. His current term as judge will end in 2014. State law does not require him to step down as the case against him progresses.

Anderson’s lawyer, Eric Nichols, told Sturns that he will file an appeal challenging the ruling, saying he believes the court of inquiry exceeded its authority, that the accusations against Anderson lacked merit and that Sturns mistakenly ruled that the statute of limitations did not apply to events that took place more than two decades ago.

The next step in the case is likely to be a hearing on Anderson’s challenge.

Morton was sentenced to life in prison for the murder of his first wife, Christine, in their Williamson County home. He was freed and declared innocent in 2011 after DNA tests pointed to another man as the killer. Sitting next to his new wife, Cynthia, Morton teared up as Sturns read his findings from the bench.

“It was surprisingly emotional. It was a real sense of vindication, an agreement from the state” that Anderson engaged in misconduct, Morton said. “I used to be a ward of the state. They owned me. So this is a special way of saying, ‘You were right, and we were wrong.’ “
Anderson, sitting at the defense table with his back to the audience, showed no visible reaction to Sturns’ ruling. He quickly walked out a back door, his gaze on the floor, and was followed by his lawyers.
Before issuing his findings, Sturns apologized to Morton on behalf of the state’s judiciary.  “You had a very difficult ordeal, and you’ve shown a spirit of forgiveness that I find very, very remarkable,” Sturns said. “Obviously, you were the victim of a miscarriage.”
Sturns told the standing-room-only courtroom that the evidence showed that Anderson improperly concealed two pieces of evidence that could have helped Morton fight the murder charge:
• The transcript of a police interview revealing that the Mortons’ 3-year-old son, Eric, witnessed the murder and said Michael Morton wasn’t home at the time.
• A police report about a suspicious man who had parked a green van near the Morton home and, on several occasions, walked into the wooded area behind the house.
Anderson also improperly concealed the documents from District Judge William Lott, who presided over Morton’s trial, Sturns said.
“Judge Lott specifically asked Mr. Anderson in open court whether the state had any evidence that was favorable to the accused,” Sturns said. “To which Anderson replied, ‘No, sir.’ “
Anderson also disobeyed a court order to turn over the lead investigator’s notes and reports for Lott’s review, Sturns said. Instead, Anderson submitted a five-page report detailing the first day of investigation into the beating death of Christine Morton.
Anderson’s lawyers argued, during five days of court of inquiry hearings in early February that Lott– who has since died — issued a limited order to view exactly what Anderson turned over.
Sturns dismissed that line of reasoning, issuing arrest warrants for tampering with physical evidence, a felony punishable by up to 10 years in prison; for concealing documents to impair their availability as evidence; and for tampering with a government record, a misdemeanor that carries up to a year in jail, for concealing official reports.
Sturns also issued a show cause order for Anderson to appear in court to answer the contempt charge, punishable by a $500 fine and up to six months in jail.
Williamson County District Attorney Jana Duty said Friday that she will ask the state attorney general’s office to act as prosecutor as the criminal case against Anderson develops.
Duty said she was concerned about a conflict of interest because three of her prosecutors are assigned to Anderson’s court, which presides over one-third of the criminal cases filed in the county.
According to the Texas Supreme Court’s rules on the removal of judges, Anderson will be able to continue in office. The State Commission on Judicial Conduct can suspend a judge only after a felony indictment from a grand jury or if there is a misdemeanor charge involving official misconduct, the rules say.

You may think this is a rare occurrence; through this Blog, you are likely to change your mind.  Thanks for visiting and we hope this Blog proves interesting and useful to you.

Burdick Law, P.C.