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Let’s Advocate Against Wrongful Convictions!

The US Justice Department knows that potentially innocent people can be victims of wrongful convictions based on flawed forensic work. But what happens to the prosecutors who allow this horrible practice to continue? Nothing.

A few years ago, we learned through some investigative reporting that federal prosecutors they failed to notify defendants, or their attorneys, about cases they knew were faulty or weak. This is horrible!

While these defendants were not all convicted of the death penalty, and were not put to death based on a flawed case, this conduct is inexcusable. Why is it that no one is held accountable?

A Flawed Criminal Justice System

The system is flawed and shameful. We need to become better advocates, pay close attention to every case at risk of wrongful convictions at both the federal and state level (where they are rampant!), and then share the information with the public. Knowledge is power.

Timing is everything. We should bring the issue to the forefront during this current presidential race, and keep it on center stage until it gets the attention it deserves. Let’s look closely at the death penalty, too, and ask if we should really consider the death penalty in a climate with so many risks of false conviction. Is this a punishment we should even impose on a convicted felon?

Beyond being cruel and unusual punishment, there is always a chance that an innocent defendant could be executed. That cannot be reversed, and it should never happen. And yet it does.

Too Little, Too Late

Two years ago, the FBI released a scathing report, one that shed new light on one of the FBI lab’ worst scandals: The inspector general said the Justice Department did not properly review all of the cases by FBI examiners whose work was known to be flawed. Even when the FBI knew their work had been shoddy and the wrong person convicted – in death penalty cases as well – they didn’t bother sending timely notifications to the prosecutors in those cases, and never notified defendants’ attorneys at all.

And, sometimes when the FBI did notify the prosecutors, they never told the defendants’ lawyers. As a result, innocent people were put to death because of wrongful convictions.

It took five years to identify 60 death-row defendants whose cases had been criticized. Because of this, state authorities failed to stay sentences, and three men were put to death.

This is horrible. As the most civilized nation in the world, we should not put to death men and women who might not have committed a crime, or who might have been convicted based on questionable evidence.

The Media Is Our Advocate

We need to stay on top of the shoddy practices and let the public know when we discover it.

Thank you to the Washington Post for reporting in 2012 that Justice officials had knowledge of flawed evidence and testimony that might have contributed convictions of innocent people. The Post focused on one Texas case, and three men in Washington, D.C., who were represented by the Public Defender Service and have been exonerated. Problems at the FBI lab first surfaced in the early 1990s, when a scientist-turned-whistleblower named Fred Whitehurst reported that sloppy work by examiners was producing unreliable forensic testimony. Justice officials then launched a task force (that was active from 1996 to 2004) to ensure that potentially exculpatory evidence involving criticized agents was turned over to defendants. That did not happen.

The Post found that such notification rarely happened and that not all flawed cases were properly reviewed. Justice Department officials responded to the report, saying they had been diligent in trying to protect defendants’ rights in undertaking a review of unprecedented size and complexity. In one case mentioned, police investigated a death near Howard University, but no crime was suspected. However, the Department agreed that certain aspects of the Task Force review could have been more efficient or effective. The 26 surviving death-row inmates whose cases were included in the review were later notified that their convictions had been re-examined.

After the Post report, the inspector general recommended the notifications and retesting of evidence in 24 death-row cases in which the defendant was deceased. What’s more, the inspector general’s office said the department should notify all 2,900 defendants whose cases were reviewed by the task force, starting with 402 defendants whose cases were so problematic that the task force obtained a fresh scientific review. Their names were made public.

We need to stay on top of these matters. We need to make sure they are brought to the public. Meanwhile, I wonder why the prosecutors responsible for shoddy practices that could have resulted in the death of innocent people are not held responsible. They are they not charged with causing the deaths, and long incarcerations, of innocent men and women. So who is responsible when innocent men and women die because of shoddy work by federal prosecutors?

It is unlikely any of those involved with this vile and unforgivable conduct will ever be prosecuted because they are part of a system that is flawed. But we need to keep fighting for justice. The best way is to beware of the practice, and the possibility of false convictions. Do your research. Report them. They are still rampant in state prosecutions.

Burdick Law has a history of fair representation for those charged with some of the most heinous crimes. If you are in need of a criminal defense attorney who knows the law inside and out, and will give you your best representation, contact Burdick Law today for your consultation at 248-325-5000.

Anatomy of a Federal Criminal Law Case – Part One: Investigation

A federal criminal law case starts with an investigation, triggered in one of a number of ways: unlike a bank robbery where the event itself triggers the investigation, in most white collar criminal cases a federal regulatory (the SEC, one or another Medicare program safeguard contractor, the IRS, etc.) gets wind of improper conduct, or a federal criminal law investigative agency – FBI, DEA, ATF, ICE, etc. – comes across information about criminal conduct. That can happen in one of a number of ways. First, some citizen might see or hear about criminal conduct and report it. Sometimes federal criminal law cases begin with the arrest of someone caught engaging in a criminal act and, in order to save himself, he tells the authorities that he knows of some far more serious criminal conduct.

Example: police stop a man for a traffic violation and discovery he has several prescriptions or bottles of prescription narcotics in other people’s names in his car. Right away, he wants to make a deal. Equally quickly, most local agencies realize there may be far more to the circumstances than just a few bottles of narcotics. So they call in the “feds.” Most police agencies maintain close working ties with federal agencies, often through ongoing local, state and federal task forces.  Turns out maybe that Mr. Traffic Stop got those medications through a health fraud scheme involving doctors and other health professionals, and the narcotics were the “payoff” for the runner (Mr. Traffic Stop) who brought “patients” to unscrupulous doctors or clinics. The “patients” agree to pretend they received all manner of medical treatment from or through the doctors in exchange for cash kickbacks and/or narcotics prescriptions, which they share with the “runner.”

The agent assigned is then assigned to the appropriate Assistant U.S. Attorney. The two work together from then on through the investigative stage and prosecution.

During this process, several investigative techniques are employed: first, public records are researched to find out everything about the targets (the people Mr. Car Stop says were involved), including criminal records and health licensing and discipline (if any). Internal federal computers are employed to cross-check the names against other convicted criminals (or even just acquaintances of accused criminals). Then the investigative activities take off, including trash pulls; surveillance; interviews; search warrant executions, etc. Once the government, in the person of the assigned Assistant United States Attorney, decides there is enough to charge one or another target, either a criminal complaint is issued and the target arrested, or an indictment is obtained from the grand jury. More on all thais to follow in Part 2.

The DOJ’s Newest Attack on the Fourth Amendment

Remote Digital Searches: Your Computer is Totally Not Private if Federal Criminal Law changes for the worst.

This news was brought to light by the Gizmodo Federal Criminal Law Blog, describing the Justice Department’s continuing attack on the Fourh Amendment – the constitutional right to be free from unreasonable searches and seizures:

A new proposed rule change will make it far easier for federal agents to obtain warrants to hack a computer from basically anywhere was just approved by a US Court committee, bringing all of us one step closer to having what little is left of our digital privacy rights destroyed in the name of federal “investigative need.”

In only very rare cases historically have agents been able to get permission to legally conduct remote computer searches, outside of the issuing judge’s jurisdiction. To make it easier for the FBI to conduct these sorts of remote hacks and track down criminals who use anonymizing software, the DOJ would now like to expand that power, resulting in a massive repudiation of the Fourth Amendment. Not only would the rule change permit judges to authorize FBI agents to surveil and grab any suspect’s digitally-stored information anywhere and from anywhere, but the vague language of the rule can (and, if history is any guide, will – remember the Patriot Act?) make it totally acceptable in certain cases to search our computers without ever telling us.

For example, the change would excuse territorial limits on the use of warrants to conduct “remote access” searches where the physical location of the media is “concealed through technological means.” The proposed change does not define what a “remote search” is or under what circumstances and conditions a remote search can be undertaken; it merely assumes such searches, whatever they may be, are constitutional and otherwise legal. It carries with it the specter of government hacking without any Congressional debate or democratic policymaking process.

The USA Patriot Act is a perfect example of what happens when the government is given unusual authority to “cross the line”  for a specific threat – all in the name of catching terrorists who might otherwise hit America again.

Everyone in the government admits there has been no specific terrorist act or plan identified or thwarted through the use of the Patriot Act privileges – but there have been plenty of “ordinary” criminal cases that were made by the use of that Act’s authority – something the Bush DOJ promised it would not use the Act for.

Federal Criminal Law – The Federal Code

There are literally thousands of federal criminal laws on the books today, and learning them all would take more than a few law school courses.  But we at Burdick Law want everyone who is interested in understanding how the federal system works, or who is facing charges in that system, to have a solid understanding of what the laws are, what they mean, and what kind of penalties attach to them if you are convicted.

The Federal Criminal Code is divided into “Titles” or general sections.  The most expansive set of criminal offenses is contained in what is called Title 18 United States Code.  There the Code describes “general” criminal offenses, such as conspiracy; aiding and abetting; mail fraud; wire fraud; embezzelment; racketeering; money laundering; healthcare fraud; perjury (lying in court) and false statements (lying to to any federal officer or agent); racketeering (“RICO”); terrorism; obstruction of justice.

The second most commonly used sections is Title 21, which describes prohibited conduct related to drugs and narcotics violations.

Another important section is Title 31, which addresses all manner of financial institution violations, such as international money laundering and illegal structuring of financial transactions to avoid reporting requirements.

One important general matter relating to federal criminal law: in most state courts, there are generally what is called preliminary examinations (also called probable cause hearings) in advance of any referral of a felony charge to a trial court.  The “neutral examining magistrate” must find probable cause to believe a crime was committed and that the defendant committed that crime.

In federal court there is, instead, grand jury presentation, review and consideration of the allegations made by an Assistant United States Attorney against individuals.  The theory of a grand jury is that these citizens listening (in secret) to the government’s allegations stand in the place of that independent state magistrate, and make that probable cause call.

More about all of these matters to follow soon – so please follow Burdick Law, P.C.

Federal Criminal Law – FBI Hair Comparison “Experts” – Part One

Finally, after years of federal criminal law (and state) defense lawyers’ complaints that the FBI hair analysis “experts” used in state and federal prosecutions for decades, were making it up as they went along, the truth is out: they were making it up as they went along. Now they have admitted it, though very reluctantly.

Turns out that all but two of the 28 examiners in the FBI’s hair comparison unit “overstated” forensic matches which always – surprise – favored the prosecution’s case 95% of the time.  The NACDL and the Innocence Project (Barry Scheck, Peter Neufeld, and their band of renowned) finally succeeded in exposing the dirty tricks that were used on, often, innocent defenants.

Incredibly, 32 such defendants were sentenced to death based due in no small measure to this phony junk “science” perpetrated on unwitting jurors by the FBI and prosecutors all over the country, half of whom have already been executed (or died in prison waiting for their lethal injection).

Just like the finally repudiated “bite mark” comparison pseudo-science, which also sent men to their deaths and to prison for decades, hair analysis “experts’ from the FBI were making it up, or exagerating it, as they went along. Federal criminal law was turned on its head.

Sen. Richard Blumenthal of Connecticut, said, “These findings are appaling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongfully imprisoned and even executed, but for prosecutors who relied on fabricated and false evidence despite their intentions to faithfully enforce the law.”  And all too many prosecutors knew all along that what they were presenting to the jury was phony, pure junk science.

Stand by for Part 2.

Federal Criminal Law – FBI Hair Comparison “Experts” – Part 2

More on FBI misdeeds in the realm of junk science in federal criminal law. These so-called experts claimed at trial after trial that the hair comparisons were near-certain “matches” to defendants charged in the cases.  To make matters worse, to butress their phony testimony, they described misleading statistics culled from their own work.  In other words, they claimed the hairs matched, and used their own history of “matching” samples as support for their own – self-seving – conclusions.

The truth is, there is no legitimate research that supports the FBI experts’ claims of how often hairs from different people may appear to be the same. Federal criminal law has been abused before, but this raises it to new levels.

In Washington DC federal criminal cases, 3 of 7 defendants (43%) whose trials included such nonsense FBI “expert” claims were ultimately completely exonerated by DNA comparisons, which is anything but junk science.  But those FBI experts had claimed that the “hairs matched” and were the defendant.

In all, when all the cases these “experts” testified in are counted, the FBI itself now admits that the examiners “made statements exceeding the limits in 90%” of the cases, including a staggering 34 death penalty cases.

If this weren’t bad enough, along the way these same “experts” were teaching state and local crime labs workers across the country in their so-called “techniques,” and how to testify effectively just as the FBI agents were doing.  So, worse than anything, they have also contaminated untold numbers of state and local “experts” to do the very same scheming, lying and perjuring themselves – all in the name of getting convictions.  Innocence doesn’t matter to them – close the case, convict someone – even better if it’s someone they don’t like in the first place.  Horrid abuse of the criminal justice system.

Thank you also to the Washington Post for pushing the FBI and the government into looking and admitting:

http://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html

Federal Criminal Law – The Federal Code – Money Laundering

The federal criminal law is sometimes a very dangerous, and absurd beast.  In the federal criminal code, Title 18, Sections 1956 and 1957, the goverment has convinced Congress over the years to make it very easy to convict someone of “laundering” proceeds of what used to be certain criminal offenses, but which has expanded to cover virtually every single federal crime.

The first, and tougher, money laundering offense, Sec. 1956, requies to get a conviction that the government prove, first, that the financial transaction involves the “proceeds” of some form of unlawful activity – anything from bookmaking to drug dealing to RICO to Medicare fraud.  To be convicted under this federal criminal law, then the government must prove that the defendant was doing what he did to “promote the underlying unlawful activity;” and that he knew the assets came from some illegal conduct; that he tried to “conceal or disguise the nature, location, source, ownership or control” of those illegal proceeds or tried to avoid an otherwise legally mandated “financial transaction report,” as from a bank, or a car dealership, jewelry store, or airplane sales company, etc.

The penalty on conviction is up to 20 years in prison.  If the girlfriend of a drug dealer takes some cash from him and goes out and buys a bunch of “throwaway” cell phones for her boyfriend’s associates to use in selling the drugs, she can be convicted and sentenced to prison of a long time.

But then there is Sec. 1957, the second tier money laundering statute, and really the most devious.  It “only” carries a maximum of 10 years in prison, but the trade-off is that the government has very little to prove:

The government must prove that the funds came from some illegal activity and that ther person using those fuds knew it, it does not have to prove she or he tried to conceal or disguise the nature, location, source, ownershipor control of thopse proceeds to be convicted. Incredibly, all the government has to prove is that the person engaged in a financial transaction of any kind, knowing where the money came from. Nor is proof required that the transaction was engaged in to promote the underlying criminal activity – only that it was engaged in!

So, if an on-line bookmaker uses his earnings to pay his ex-wife the alimony or child support ordered by a divorce judge, as long as she knows that’s where it came from, just accepting the alimony or child support qualifies as “engaging in a financial transaction with illegal proceeds.”

She can go to prison for 10 years just for accepting the child support obligation to feed her children.  Is it likely that the government would often go that far? No, unless it wanted to press the bookmaker to plead guilty to something, under the threat of his ex-wife’s prospect of prison.  Or unless the government wanted to squeeze some money from the ex-wife and needed a wedge to threaten her with.

I know, because it happened to a client of mine.