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.

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 – 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.

Federal Criminal Law – RICO (Racketeering)

In all of Federal Criminal Law, one of the toughest statutes is the one referred to as Racketeering(Title 18 §1962) is one of the most burdensome of all federal criminal laws, in that it operates more than anything to dramatically increase sentencing guidelines.

Clearly, the use of RICO can earn an individual a sentence of 20 years in prison (or for life if the violation is based on racketeering activity for which that maximum penalty is life in prison, even if the sentencing guidelines call for a much lower sentence – more about sentencing guidelines coming soon).

Any activity that results in any kind of interference (actual or theoretical) with interstate commerce by threats or violence, brings a potential prison sentence of up to 20 years under § 1962.

Participating in the operation of a business (even an orignally legal one) which is involved in some way in “interstate commerce,” that is, activities; taking over a legitimate business through racketeering (such as extortion, threats of violence, etc.); or conspiring to do any of these things.  (Stand by for information from Burdick Law, P.C. with definitions of conspiracy – a very troubling concept.)

Or just distributing or investing the proceeds of any unlawful activity (such as selling televisions in one state that were stolen in another state), or investing illegally earned money in stocks and bonds, results in the same enormous penalty if the government can prove the elements of racketeering.

When Congress enacted the Racketeer Influenced and Corrupt Organizations Act, many states started to follow with similar laws. In order to convict someone under RICO, it’s no longer necessary to prove the suspect personally committed any of the illegal activity. Instead, prosecutors only need to prove:

· The defendant owns and/or manages an organization which is operated illegally, the “enterprise,” in the jargon of the statute;

· The defendants engaged in at least two or more “predicate offenses” (which now includes pretty much all serious federal crimes) and . . . and which were connected to each other by a common scheme or plan, and committed within 10 years of each other.

Although RICO was initially created to prosecute infamous crime rings such as the “Mafia” and similar gangs of organized criminals, it was soon stretched to cover many other criminal activities. For example, RICO charges were brought against pro-life activists for illegally blocking the entrance to abortion clinics.

All in all, RICO is a very tough law, one which is being used more than it should if for no other reason than to ratchet up the potential sentencing a defendant faces, to thereby coerce him to plead guilty to something lesser.