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Liars and
Crooks
 The failure
of prosecutors to obey the demands of justice—and the legal system's
failure to hold them accountable for it—leads to wrongful convictions, and
retrials and appeals that cost taxpayers millions of dollars. It also
fosters a corrosive distrust in a branch of government that America holds
up as a standard to the world.
K. Armstrong and M. Possley
"Part 1. Verdict: Dishonor"
Chicago Tribune
10 Jan 1999
In recent years, throughout the entire United States, miscarriages of
justice have been uncovered at an alarming rate. While some estimates
place the number of innocent people wrongfully convicted at one percent of
all cases, some say it is probably higher. If one percent is accurate,
however, the number of people currently wrongfully imprisoned is
approximately 200,000.
Many wrongful convictions are the result of simple human error—mistaken
witness recall, for example. Many instances of wrongful conviction,
however, also involve serious misconduct on the part of law enforcement
officers, crime laboratory personnel, and/or prosecutors.
Law enforcement personnel are
most often the first to investigate crimes and have the ability to taint a
case from the outset. Through the use of
improper techniques, coercive tactics, poor investigation, and sometimes
fabrication of evidence, police officers and federal agents can and do
contribute to the incidence of wrongful conviction.
Forensic laboratories play an integral role
in developing cases for prosecution and also have been shown to engage in
misconduct. Crime laboratories across the nation have come under
scrutiny for poor scientific techniques and handling of evidence, providing
misleading data to juries or skewing data to support prosecution claims,
or providing completely false testimony and fabricated evidence.
However, prosecutors—who know or should know
about such misconduct, or who engage in serious misconduct of their own—also
contribute to the incidence of wrongful conviction. Despite this fact,
little attention is given to the convictions caused in large part by unscrupulous,
untruthful, and overzealous prosecutors who exhibit questionable behaviors
such as courtroom misconduct; mishandling of physical evidence (hiding, destroying,
and/or tampering with evidence, case files or court records); failing to disclose exculpatory evidence; threatening, badgering, and/or tampering with
witnesses; and using false or misleading evidence.
Prosecutorial Misconduct
Prosecutorial misconduct is more prevalent than the
public supposes. Alarmingly, the Innocence Project
founded by Barry Scheck and Peter Neufeld that sparked DNA exonerations
nationwide has
reported that nearly half of its first 70 exonerations also had involved
prosecutorial misconduct. (Dwyer, J., Neufeld, Peter, Scheck, Barry. "Actual Innocence: When Justice Goes Wrong
and How to Make It Right," New York: Doubleday, 2000.)
Since
1970, individual judges and appellate court panels cited prosecutorial
misconduct as a factor when dismissing charges, reversing convictions, or
reducing sentences in over 2,000 cases. In another 500 cases, appellate
judges offered opinions—either dissents or concurrences—in which they
found misconduct warranted a reversal. In thousands more cases, judges
labeled prosecutorial behavior inappropriate, but upheld convictions using
a doctrine called "harmless error".
("Harmful
Error: Investigating America’s Local Prosecutors," Washington,
DC: Center for
Public Integrity,
2003.)
U.S. Department of Justice
While the U.S. Department of Justice (DOJ) is generally assumed to be the
model for America’s criminal justice systems, the Department is not immune
to such official misconduct. It has its own problems as
evidenced by news reports:
-
"3000 Tainted FBI cases," Newsday,
17 March 2003.
-
Anderson, Curt. "Study on FBI finds fault,
urges change," Associated Press, 27 Feb 2004.
-
Jehl, Douglas. "Judge rules false
testimony used to convict ex-CIA spy of arms sale," NY Times, 30
Oct 2003.
-
Schaeffer, Jim. "Ashcroft admonished, but not
facing charges," Detroit Free Press, 05 Sep
2003.
-
"U.S. attorneys fired [allegedly for political reasons]; Patriot Act
provision questioned," NY Times, 15 Jan 2007.
-
"$101m
civil verdict for wrongful convictions in gangland murder," Boston
Globe, 26 Jul 2007. (The DOJ has appealed
this verdict.)
Government
reports in the recent past have found fault with lab procedures
("FBI abandons disputed test for bullets from crime scenes,"
Associated Press, 02 Sep 2005 and "DOJ faults FBI for fingerprinting error,"
Associated Press, 11 Mar 2006),
as well as determined that the DOJ is not in compliance with its own
guidelines as regards wiretapping ("Justice Department report cites FBI
violations," NY Times, 09 March 2006) and the use of informants
("FBI violating informant guidelines: Inspector General finds 87 failure
rate," Boston Globe, 13 Sep 2005).
Whether it is exposure of the fact that the FBI's crime lab has
fabricated physical evidence for the purpose of obtaining convictions of
possibly innocent people; the frame-up (and subsequent life
imprisonment) of three men the FBI knew to be innocent so as to protect a
murderous mob informant ("Everything Secret Degenerates: The FBI’s Use of Murderers as Informants,"
Washington, DC: Committee on Government Reform, U.S. House of Representatives, Nov 2003);
prosecutors' violation of a court order with regard to coaching witnesses in confessed Al Qaeda
terrorist Zacarias Moussaoui's trial;
the falsification of documents and other evidence ("Report finds cover-up
in a FBI terror case," NY Times, 04 Dec 2005); withholding
exculpatory evidence ("Former prosecutor in terror case indicted," NY Times, 30 Mar 2006)—or other examples far too
numerous to review here—the pattern remains consistent. (See other
mentions
of the FBI in the news.)
It would be naive to think that
prosecutorial misconduct is only a problem in State and local prosecutors'
offices. News reports such as the examples highlighted here point to the
presence of misconduct at even the federal level, and clusters of
allegations about or proven cases of federal misconduct do seem to
indicate the presence of perhaps a systemic problem—no matter if the
misconduct appears consistent among staff in a single office of the U.S.
Attorney or throughout all offices of the U.S. Attorney across the nation.
It should be
acknowledged, however, that misconduct and unethical behavior is not the
habit of
all members of the legal
profession. Such behavior also is not exclusive of one side or the other
in criminal cases.
Why does misconduct occur? Perhaps misconduct occurs due to the American attitude towards
competition and the cultural norm
that embraces winning as the all important thing. Add that to the
legal profession, where every attorney's primary purpose is to win the case,
and what have you got?
As regards criminal cases, the finding of actual truth often becomes unimportant in
reality, or at least of secondary importance. Depending on one's
perspective—prosecutor
or defense attorney—it
is often only the conviction or the acquittal that matters in the end.
It also is true that the
measure of a successful prosecutor is the number of convictions
achieved. The need to win so present in American culture and within the
legal profession itself, therefore, is compounded by concerns having to do with job
retention and, more importantly, career advancement—attaining
increasingly more responsible positions and prestige, as well as increased
salary, benefits, and other societal perks (including celebrity) that accompany success. Ambition and even greed are causative
factors that cannot be overlooked.
Of course, there's a
downside to losing cases that must also be taken into account. Failure can and will result in a stunted career.
Too many losses or a single loss but a critical one, from the DOJ's
viewpoint at least, might lead to evaporating opportunities or worse.
The need to win is
exacerbated, too, by public and media visibility in high-profile
prosecutions—in
particular, those driven by government policy and political concerns.
In 2007, for example, it came to light that "less than 10" U.S. Attorneys
were asked to resign their posts. Nearly all of the dismissed prosecutors
had positive job reviews, but many had run into political trouble
with Washington over such issues as immigration and capital punishment. At
least four also were presiding over high-profile public corruption
investigations when they were dismissed. ("Justice Department fires 8th
U.S. Attorney, Dispute over death penalty cited," Washington Post, 23
Feb 2007.) A review of internal reports showed that six of the eight
attorneys dismissed were rated “well regarded,” “capable” or “very
competent.” ("Dismissed U.S. Attorneys received strong evaluations," NY Times, 25 Feb 2007.)
Or take the situation in
which former federal prosecutor Richard Convertino (Detroit, Michigan)
found himself. Convertino led one of the DOJ's biggest terrorism
investigations and was purportedly a rising star in the DOJ. He and a
State Department employee who served as a chief government witness were
each indicted in March 2006 on charges of conspiracy and obstruction of
justice for concealing evidence. When the evidence of wrongdoing was
divulged, the defendants' convictions were overturned. It is not at all
clear why the DOJ took this precedent-setting step of prosecuting its
own. Did the government prosecute Convertino because he broke the
law? Or was Convertino's prosecution political and motivated by his having been caught in the act
and costing the DOJ a needed win as part of the Bush Administration's "War on Terror"?
(Note: Convertino was acquitted on October 31, 2007, however... in the
same week that a former FBI agent also was acquitted of misconduct... And
perhaps prosecutions such as these are merely show trials, smoke and
mirrors, to only give the appearance that the DOJ is concerned with equal
justice under the law. The element of vengeance persists
in the DOJ, apparently, judging by its recent response to the Convertino
acquittal.)
The Convertino case was outside the norm. In general,
the DOJ's handling of cases of prosecutorial misconduct—where the
Department issues letters of reprimand, if that—is entirely unacceptable.
The chief
federal judge in Boston, Mark L. Wolf, has
even chastised the
DOJ and demanded that the U.S. Attorney General crack down on
prosecutors who commit misconduct and force Justice Department lawyers
to be truthful in court.
Lynn Crooks
The most egregious form of
prosecutorial misconduct is that which entails a political component (to quash dissent) and where something that can only be described
as a conspiracy—and,
therefore, a criminal enterprise—is
set in motion by the U.S. Attorney and/or deputy prosecutor(s) in
partnership with other DOJ officials, federal investigators, and even the
federal judge who presides over a trial with the purpose of achieving a
conviction by any means necessary, i.e., with no real regard for criminal
statutes, the Federal Rules of Evidence or Criminal Procedure, or the U.S.
Constitution. Some of the cases in the career of retired Assistant U.S. Attorney
Lynn Crooks exemplify this form of misconduct.
Former federal prosecutor Lynn Crooks
was inspired to study law by one of his college professors. He
studied law in North Dakota and entered a clerkship type program at the
U.S. Attorney's office in Bismarck following law school. He accepted a
position in the Office's Unsatisfied Judgment Fund so as to pursue trial
work. Holding that position for over two years, Crooks applied for the
position of Assistant U.S. Attorney in 1969, a position he held until he
retired. During that time, Crooks played a key role in two very
high-profile, politically-charged cases. The similarities between those
cases cannot be ignored.
Case Study #1: Yorie Von Kahl
Yorie Von Kahl was
wrongfully convicted in the deaths of two U.S. Marshals and the wounding of other law
enforcement officers in a "shoot-out" that occurred at a roadblock on February 13, 1983,
north of Medina, North Dakota. Serving a life sentence (plus 15 years)
imposed by Judge Paul Benson (deceased), Kahl is imprisoned in Terre Haute, Indiana.
Lead federal prosecutor
Crooks teamed with Assistant U.S. Attorney Dennis Fisher on the Kahl case. He
characterized Fisher as "...a very intense type guy. And, he was the kinda
guy that I kinda wanted to go around and stir things up and do things, and
the kind of guy that I could say 'Dennis, I think we ought to do it'...
and Dennis would immediately run off and start doing it."
What things did Crooks have
Fisher do? One has to wonder given the fact that Fisher was ultimately
dismissed from the U.S. Attorney's office in 1997 after his THIRD known
arrest for shoplifting.
Crooks told the jury that the prosecution of Kahl was not a political one. However, after the trial—in comments made during a 1990 interview for a documentary film on the
case—Crooks admitted that the political establishment in Washington, DC,
took extreme interest in the outcome of the trial, and that superiors threatened to replace
him as prosecutor, if necessary, to ensure a conviction. The DOJ also sent
high-ranking officials to North Dakota to operate behind the scenes and
oversee the case.
In 1995,
some 71 state supreme and superior court justices, state senators,
attorneys, and other criminal justice experts and professionals signed an
affidavit on their independent findings on the "shoot-out" at Medina and
their belief that Kahl was wrongfully convicted: "We
were, of course, not entirely unbiased in our investigation… as present
and past members of the criminal justice system ourselves… [we] truly
wanted… to find no fault and in favor of our slain fellow officers. It is
unfortunate, that this was not the case."
The
panel's independent findings included: (1) the entire incident was
caused primarily by police officer error in judgment and/or misconduct;
(2) according to decisions made in the Washington, DC, headquarters of the
U.S. Marshals Service, the Kahl warrant had been set aside and federal
marshals had been advised that the warrant was not to be served; (3)
Marshal Kenneth Muir acted in violation of orders when he made the
decision to serve the warrant; and (4) Had the U.S. Marshals used proper,
basic arrest policies and tactics, there likely would not have been a
violent confrontation.
As regards Kahl's trial, the
group of experts and professionals found several areas of concern: (1)
Judge Benson and the deceased Marshals, Muir and Cheshire, were good
friends and brother members of the same local "fraternity" (a Masonic
organization); (2) It is a
matter of record that Judge Benson was the person most responsible for
getting Marshal Ken Muir the job as U.S. Marshal of North Dakota having
personally requested that Muir be given the position; (3) Prosecutor Lynn
Crooks and the two slain Marshals were good friends, as well, and members
of the above Masonic organization; (4) Juror August Pankow, Jr., was a
long-time personal and childhood friend of Prosecutor Crooks, a fact that
was not brought out during voir dire of the jury or during or after the
trial, i.e., this fact was never made a matter of the court record.
The investigative team
concluded: "This is only a small part of the irregular and unfair judicial
history in regard to this case that continued to perplex these police
investigators. Few of us, in all of our years of police service, have
encountered such abuses by government and judicial officials of the
criminal justice system as we have in this case. Due to these and other
known facts, it is [our] conclusion that [Kahl] did not and could not have
received a fair trial."
The investigative team also
stated that, based on the known facts, there was no other conclusion to be
made other than that the prosecution of Kahl was a politically-motivated
one.
Newly discovered evidence
now shows that key prosecution witness Bradley Kapp lied on the stand. Medical records withheld by government
prosecutor Lynn Crooks unequivocally establish that Mr. Kahl did not shoot
Kapp. Kapp was not shot by "bullets," but by a "shot gun from 25
feet" as evidenced by "small pellets". Mr. Kahl and his codefendants did
not have shotguns. Only members of law enforcement had shotguns. The
evidence now points to only one conclusion: Kapp was shot by a fellow law
enforcement officer.
Prosecutor Crooks is alleged
to have known that Kapp's testimony was untrue. According to Kahl's former
attorney, Barry Bachrach, "Crooks presented the
testimony anyway, even vouched for the credibility of the witness. The
prosecutor also withheld exculpatory evidence that would have shown that
the witness wasn't telling the truth."
Bachrach points to an
interview conducted in 1992 with Steve Kroft on the television program
"West 57th Street" as proof of Crooks' predisposition to
achieve a conviction even if based on false or fraudulent evidence: "…Doesn't bother my conscience one whit,"
Crooks said. "I don't
agree that there's anything wrong with that, and I can tell you, it don't
bother my conscience if we did."
In addition, it
is alleged that Crooks introduced a fabricated All Points Bulletin (APB) to support
his
false contention that the "shoot-out" was not premeditated by
the marshals. Crooks withheld the
original APB from both the defense and the jury expressly because it
supported the defendants' claim of premeditation. The jury was deceived
into believing only one APB existed.
Other issues have
been raised in the case, including juror misconduct which was largely the
result of sensational news reports, fueled by statements from Crooks and
others in the U.S. Attorney office, following the "shoot-out" and leading
up to the trial. Kahl and his co-defendants were falsely promoted as
violent tax protestors and members of the Posse Comitatus, for example, as
well as represented as the aggressors in the Medina incident. Arguably the
purpose of Crooks' and others' false or misleading statements to the media
were made to pollute the jury pool. Fifty percent of the prospective
jurors were excluded for cause and those who remained admitted some degree
of bias. Kahl labors under these false reports even today even though they
are not supported by the evidence in the case.
Yorie's 1995 petition for
parole was denied and all appeals of his conviction, to date, have failed.
However, a Motion was filed on January 19, 2006, in the 8th Circuit Court
of Appeals with regard to his case. Seeking a new trial, the Motion asks
that a Habeas petition be reviewed by the U.S. District Court in Fargo.
(Update: The Court denied the petition.)
Case Study #2:
Leonard Peltier
"Judge Benson is a very good
'follow the rules' type of judge," Lynn Crooks said in a 1990 interview
about the Kahl case.
Crooks would have reason to
know. Prosecutor Crooks had worked
with Judge Benson on another politically-motivated prosecution in 1977.
Like the case of Yorie Von Kahl, the incident leading to the conviction
and two life terms of Native American activist Leonard Peltier was caused
primarily by federal officers' errors in judgment and/or misconduct;
serious misconduct on the part of investigators, as well as Prosecutor
Lynn Crooks; and, arguably, misconduct on the part of Judge Paul Benson,
who consistently made rulings favorable to the prosecution thereby
preventing Peltier's attorneys from mounting a viable defense and the jury
from hearing all the facts of the case.
Leonard Peltier was wrongfully
convicted for the deaths on June 26, 1975, of two agents of the FBI on the
Pine Ridge Indian Reservation, South Dakota.
Designated as a political prisoner by Amnesty International, Peltier is
currently imprisoned at the penitentiary in Lewisburg, Pennsylvania. He has served over 30 years in federal prison despite
proof that he was convicted on the basis of fabricated and suppressed
evidence, as well as coerced testimony. The U.S. appellate courts, by
their decisions, have recognized the undisputed misconduct in Peltier's case,
yet have refused, by misapplying legal standards and claiming lack of
authority, to take corrective action.
Jury Foreman Robert Bolin, after the acquittals
of Leonard Peltier's co-defendants, Dino Butler and Bob Robideau, stated: "The
jury agreed with the defense contention that an atmosphere of fear and
violence exists on the reservation, and that the defendants arguably could
have been shooting in self-defense. While it was shown that the defendants
were firing guns in the direction of the agents, it was held that this was not
excessive in the heat of passion."
Had
Peltier been tried with his co-defendants, he also would have been acquitted
of the crimes he was alleged to have committed. However, Leonard Peltier was tried
separately and not allowed to argue self-defense (even though his actions on
June 26, 1975, were no different than those of his co-defendants).
During Peltier's trial, repeated reference was made by
Prosecutor Crooks to the
actions of Butler and Robideau—who allegedly did what, where, when and how...
to the extent that Crooks even stated outright, during closing
arguments, that all three men had murdered the agents in cold blood. The one
thing Crooks did not tell the Peltier jurors was that co-defendants Butler and Robideau
had been acquitted the previous year—and
by reason of self-defense. (See
Closing Arguments.)
Although only one of the
attorneys on the government's prosecution team, some believe Crooks
masterminded the case against Leonard Peltier. It is claimed that Crooks
targeted Peltier for the killings even though he knew the shooting had been committed by a somewhat
reluctant FBI informant and American Indian Movement (AIM) infiltrator. The guilty individual, Crooks reasoned, would get off and remain a puppet in the FBI's
scheme to destroy AIM, while Peltier and fellow AIM members would be
"neutralized".
The trial testimony on the Wichita AR-15 (claimed
but not proven by Crooks to have been Leonard Peltier's weapon and to have
also caused the agents' fatal injuries) was the lynchpin of Crooks' case.
However, a FBI teletype dated
October 2, 1975, indicated that (FBI ballistics expert) Evan Hodge had
performed a firing pin test on the Wichita AR-15 and compared it to the
cartridges found at the scene of the shooting. Contrary to his trial testimony
that the test was inconclusive, this memo stated that, without a doubt, the
rifle contained "a different firing pin" from the weapon used in the
firefight. (View
the FBI's own documents. They tell the tale.)
Crooks withheld this exculpatory
evidence from the defense at trial. It was only discovered years later with
the release of documents via the Freedom of Information Act.
Crooks also had claimed that the
Wichita AR-15 was the only weapon of its type present at the scene on the day
of the shoot-out. FBI documents obtained after the trial show that this also
was a false claim.
Allegedly, the Wichita AR-15 shell casing was
found in the trunk of Agent Coler's vehicle. FBI documents released after
Peltier's trial showed that two different FBI agents claimed to have
discovered that shell casing—and on two different days. The judges of the
Eighth Circuit Court of Appeals stated: "There are only two alternatives... to
the government's contention that the .223 casing was ejected into the trunk of Coler's car when the Wichita AR-15 was fired at the agents. One alternative is
that the .223 casing was planted in the trunk of Coler's car either before its
discovery by the investigating agents or by the agents who reported the
discovery. The other alternative is that a non-matching casing was originally
found in the trunk and sent to the FBI laboratory, only to be replaced by a
matching casing when the importance of a match to the Wichita AR-15 became
evident."
The Court recognized, then, that
key evidence against Leonard Peltier could only have been fabricated by the
government, something Lynn Crooks knew or should have known.
The first appeal of Peltier's
conviction occurred in 1977 before the Eighth Circuit Court of Appeals. Judge
Donald Ross stated: "But can't you see... that what happened happened in such
a way that it gives some credence to the claim... that the United States is
willing to resort to any tactic in order to bring somebody back to the United
States from Canada? And if they are willing to do that, they must be willing
to fabricate evidence as well." This statement was made in reference to the
coerced and perjured affidavits discovered to have been used to extradite
Leonard Peltier from Canada.
Nevertheless, on September 14,
1978, the Judgment of Conviction was affirmed.
Lynn Crooks, during oral arguments
before the Eighth Circuit Court of Appeals on October 15, 1985, and in stark
contrast to his summation to the jury at Peltier's trial in 1977, stated: "We
can't prove who shot those agents."
Crooks argued that Peltier had
been "proven" to have "aided and abetted" the killings of the agents. However,
the appellate judges observed that all indications were that the jurors had
convicted Peltier of first degree murder on the premise that he was the
shooter.
In 1986, in its ruling on Peltier's 1985 appeal,
the Eighth Circuit of Appeals implicitly acknowledged that the United States
government had used dishonest means to effect Peltier's conviction. The court
concluded that the government withheld evidence from the defense favorable to
Peltier, "which cast a strong doubt on the government's case," and that had
this other evidence been brought forth, "there is a possibility that a jury
would have acquitted Leonard Peltier."
In its denial of Peltier's
appeal, the court applied a strict interpretation of the Bagley standard
(United States v. Bagley, 478 U.S. 667, 1985). While under the circumstances,
a jury might well have arrived at a different decision in the Peltier case,
the judges claimed, these circumstances fell short of the judicial standard
required in ordering a new trial, that is, the court must find that the jury
"probably" rather than "possibly" would have acquitted Peltier.
(Unfortunately, the panel of judges overlooked a Ninth Circuit Court of
Appeals opinion in another case that established the legal precedent that a
clear "possibility" of acquittal was all that was required.)
The author of the Court's decision, Judge Gerald
Heaney, on "West 57th Street" in 1989, commented that the decision on Peltier's
appeal was the most difficult one he'd ever been required to make. (In the
National Law Journal on June 26, 1990, Judge Heaney would observe that the FBI
was "equally responsible" for the deaths of its agents. "The United States
government must share in the responsibility for the June 26 firefight... It
appeared that the FBI was equally to blame... the government’s role can
properly be considered a mitigating circumstance." On April 18, 1991, in a
letter to Senator Inouye which also noted that Peltier had already endured
fourteen years in prison, Judge Heaney urged commutation of his sentence as a
way of beginning a "healing process" in the long bitter relationship between
the U.S. government and its native peoples.)
During the same "West 57th Street" broadcast, however,
Crooks loudly refused to repudiate U.S. government use of fabricated evidence:
"I don't agree that we did anything wrong but…it don't bother my conscience one
whit if we did!"
This amazing statement from a Justice Department officer
outraged Senator Daniel Inouye. "I was a U.S. Attorney once," he fumed one day
in his office in the Capitol, "and that man is a disgrace to the profession!"
Before the Court of Appeals on November 9, 1992,
Prosecutor Lynn Crooks again admitted, "We don't know who shot those agents."
As late as November 2003, the 10th Circuit Court
of Appeals acknowledged that "…Much of the government’s behavior... and its prosecution of Mr. Peltier is to be condemned. The
government withheld evidence. It intimidated witnesses. These facts are not
disputed."
But, like Yorie Von Kahl, Peltier
still languishes in a federal prison.
As did Kahl's case, the Peltier
case prompted the government to engage in media manipulation—not
only from the time of the 1975 firefight to the trial, but to the present—for
the purpose of disseminating false or misleading information to the public.
Crooks was and continues to be an active participant in the efforts to mislead
the public about Peltier and the facts of his case. Decades after his
conviction, the FBI even developed a media plan
(PDF Format) so as to actively block an award
of Executive Clemency to Peltier thereby interfering with his right to fair
consideration. Similar actions have been taken to prevent Peltier's release on
parole.
Note: Visit
US v Leonard
Peltier to view case-related documents.
Other Allegations
Crooks' alleged
misconduct doesn't only extend to political prosecutions, however.
In 1983, a young man was murdered on the Spirit Lake Reservation. His name
was Eddie Peltier (a cousin of Leonard Peltier). Author Cat West writes
that the men responsible for the young man's death terrorized and
intimidated witnesses to effect the frame-up of 11 Indian men. (See: Restless Spirit: The Murder of Eddie Peltier.)
These men had help in this
enterprise, it is claimed: from a corrupt FBI Agent, and an ambitious U.S. Attorney or
two—Lynn
Crooks and Dennis Fisher. Judge Paul Benson presided over the trial.
As was true in the Kahl and Peltier trials, Benson made no attempt to
conceal his bias in favor of the prosecution.
As had also occurred in both the Kahl and Peltier cases, it is alleged
that eyewitness testimony was suppressed and fabricated statements were
coerced through threats and acts of violence. After witnesses gave false
testimony, it is claimed, they were warned that if they ever recanted they would be tried
for perjury and sent to prison for 14 years or more.
Judge Paul Benson, who had
been notorious for his bias against Indians during the course of his time
on the bench, is alleged to have illegally assisted the prosecution in this case, as he had
done in the Leonard Peltier case, by holding ex parte meetings in his office.
Surprisingly, two years after the trial,
witnesses each received $500. Lynn Crooks allegedly insisted that the courier
get a signed receipt from each of the recipients of said funds. This
amount far exceeds consideration for expenses given to witnesses who are
under subpoena to testify (a practice common in some states). Is it
possible that this
after-the-fact disbursement was made to show that witnesses had been paid
informants and to give the government more leverage to prosecute if those
witnesses recant their testimony and refuse to keep silent about coercion?
Discussion
When does the prosecution itself become a crime?
Had an accusation arisen
in only one case prosecuted by Lynn Crooks, one might be able to ignore
the charges of misconduct. The appearance
of prosecutorial misconduct in two or more cases, however, points to a
pattern of misconduct that is very troubling indeed.
Despite multiple heart
attacks in recent years and subsequent retirement, Lynn Crooks maintains his availability and
"must-consult" status on many of his old cases, including those highlighted
here. Most Kahl or Peltier supporters do not think this is a noble effort,
but the means by which Crook seeks to maintain the cover up in each case, and prevent the
truth from ever seeing the light of day.
It is well understood that prosecutors enjoy broad immunity from civil
suit for their actions as prosecutors. That immunity, however, does not
protect them from criminal liability. Prosecutors also should face
disbarment for violating the rules of legal ethics; the DOJ should
investigate prosecutors' conduct for human rights violations; and local or
federal attorneys general should not rule out criminal charges.
Federal
prosecutors, in particular, are supposed to set a standard of conduct and always
have been bound by certain basic principles. They are obliged to respect and obey the laws
and Constitution of the United States; are prohibited from engaging in any
form of discrimination based upon race, religion or political opinion,
association or belief; are prohibited from condoning, assisting or
encouraging unlawful actions in any way; are to avoid even the appearance
of impropriety in carrying out their duties; must be, regardless of personal beliefs
and goals,
committed to the presentation of the truth, the whole truth and nothing
but the truth in any legal investigation or proceeding; are prohibited from making false or misleading
public declarations with the goal of depriving any person of the full
and fair consideration of any legal right; and must refrain from any conduct unbecoming to a
representative of the United States government.
In light of these universal
principles of ethics and professional responsibility, an in-depth
evaluation of the conduct of the DOJ with respect to troubling cases it
has prosecuted is warranted. Now is the time to uncover misconduct within
the DOJ and hold accountable those individuals responsible for the
misconduct.
As the DOJ has now provided
the precedent for prosecuting one of its attorneys for obstruction of
justice, there should now be no reason why the DOJ will not prosecute any
of its attorneys against whom there is evidence of courtroom misconduct,
mishandling of physical evidence, failure to disclose exculpatory
evidence, tampering with witnesses, and/or use of false or misleading
evidence.
To ensure a full accounting
of DOJ misconduct, the U.S. Congress must
enforce our system of checks and balances and act in the interests of
truth and justice. The laws congresspersons are elected to uphold mean
nothing if the DOJ is allowed to break them without consequence.
It is imperative that Congress
also take the actions necessary to prevent
a reoccurrence of such misconduct. Such actions should include
a substantial increase in congressional oversight of the DOJ and legislation
to protect Americans' fundamental rights.
Americans have long held to the
notion that it is better that guilty persons go free rather than innocent
persons be punished for crimes they did not commit. As many of the
unfortunates have learned, however, our system of justice is an inflexible
one due to the state of case law and lack of precedence or the rules of
evidence and/or procedure.
Our concepts of justice and
good government require that the tragic errors of the past be set right. In the case of wrongful
conviction, we can do this by making our system more flexible. Legislative actions
should be taken to give prisoners redress and thereby minimize the amount of time
the
wrongfully convicted are held in exile, away from their communities and
separated from friends and family.
As a number of states have
done, the federal government might create a special Citizens Commission, a
large panel to review cases and determine if proof of wrongful conviction
exists. Most such programs currently involve DNA exonerations. However,
most wrongful convictions do not involve DNA evidence. For this reason, a
federal program would need to expand the scope of such a panel to include
cases where no DNA evidence exists and to include investigative,
prosecutorial, and judicial misconduct as topics of inquiry. While a
Citizens Commission would presumably operate with strict principles and
procedures, as well as clearly defined release criteria, it would operate
according to civil law—deciding
the issue based on a preponderance of the evidence rather than "beyond a reasonable doubt"—and
also would not have the legal authority to overturn convictions (which
would remain under the purview of the appellate courts). A Citizens
Commission would have the power only to award amnesty. Released prisoners
could continue to seek exoneration in the courts, but not have to remain
in prison in the meantime.
Amnesty is a new concept suggested by prison activists and some political
organizations, but it is not a new concept in other countries where
amnesty is awarded from time to time,
in particular to political prisoners convicted decades ago.
For example, in Germany, convicted members of the Red Army Faction serving
life terms since the late-1960s or early-1970s have been released and
placed on probation because "no security risk exists." In response to one
such recent release, a former interior minister said the decision was the
correct one. "A state based on the rule of law is mature enough to give a
perspective of freedom to one who has been given a life sentence."
("German court orders parole for convicted terrorist, International Herald
Tribune, 12 Feb 2007.)
In Morocco, 9,000 prisoners were recently pardoned and 24,000 more
prisoners received reduced sentences. The justice ministry said the pardon
was motivated by humanitarian considerations, as well as the wish for
prisoners to be re-integrated into Moroccan society. Amongst those
released are hundreds of suspected Islamist militants arrested in the wake
of suicide bombings in Casablanca in 2003. Human rights groups have often
criticized the cramped conditions in which an estimated prison population
of 55,000 in Morocco are incarcerated. ("Morocco inmates get royal
pardon," BBC News, 2 Mar 2007.)
Turkmen president Kurbanguly Berdymukhamedov plans to
pardon 9,000 prisoners in October 2007, continuing an annual ritual
related to the "Night of All Forgiveness" towards the end of the Muslim
holy month of Ramadan.
Why might we need an amnesty
program if there's already a parole system in place?
First, federal parole was eliminated by the
Sentencing Reform Act (SRA) of 1984. Only prisoners convicted prior to its
passage are even eligible for parole if convicted by the federal district
courts.
But for the "old time," wrongfully convicted
prisoners technically eligible for parole, an amnesty program is needed simply
because the parole
system does not recognize innocence. The government expects prisoners to
take responsibility for their alleged crime(s) as proof of their having
been "rehabilitated"—which means, prior to
release, a person
wrongfully convicted must confess to a crime he/she did not commit. This means that the potential exists that the wrongfully
convicted (who most often are serving long-term sentences to begin with) will serve time in excess of the norm for their conviction(s)
and release will almost always be denied despite decades of imprisonment
and requirements for release having already been met.
Such programs will likely be a long time in coming, however, and the
wrongfully convicted need a remedy now, not later.
Other system reforms that minimize time served, such as eliminating
mandatory minimum sentences and restoring judicial discretion, would
ameliorate (at least somewhat) the damage done to the lives of the
wrongfully convicted.
Failing the institution of
an amnesty program and concomitant services to ease prisoner's reentry
into the community, federal parole (thereby
periodic full case review) should be reinstated.
However, legislation must include provisions increasing the frequency and
scope of full case reviews (which now only occur the first time an inmate
petitions for parole and as infrequently as every 15 years thereafter, and
generally do not consider official misconduct as a mitigating
circumstance), as well as the frequency and scope of interim proceedings
so that any newly discovered evidence of misconduct can be considered
without lengthy delay.
Also, legislative safeguards
must be employed against abuse of power by
parole examiners and officials, or political influence over parole
decisions.
If political
concerns can and
sometimes do affect the conduct of criminal investigations and
prosecutions, it stands to reason that politics also affects the
decisions of the U.S. Parole Commission. In recent decades, many public policies
have been affected by the "Get Tough on Crime" political platform, it can
be argued, and the issue of parole is clearly no exception.
Example:
The Sentencing
Reform Act of 1984 was passed to address what Congress
thought were inconsistent sentences imposed by
different judges on different individuals convicted of
the same crimes, as well as arbitrary parole
decisions. A new system—one of determinate
sentences—was born
and the Parole Commission was
abolished.
However, the government basically refused to enforce
Title II, Chapter II, Section 235(b)(3) of the SRA.
Effective on October 12, 1984, this part of the
law ordered
that parole dates "consistent with the applicable
parole guideline" be issued to all "old system"
prisoners within the following five-year period, at
the end of which time (on October 11, 1989) the
Commission would cease to exist.
On December 7,
1987, Congress enacted Public Law 100-182 which amended the
SRA;
repealed, in Section 2, the release criteria
established by the original section 235(b)(3);
and restored the
release criteria under 18 U.S.C. 4206. This
amendment did not, however, restore the Parole Commission
or remove its obligation to establish mandatory
release dates, with sufficient time for appeal, by
October 11, 1989. These
changes to the law also applied only to crimes
committed after the law was amended on December
7, 1987. The amendment simply did not apply to the
some 6,000 "old system"
prisoners still held by the U.S. Bureau of Prisons
today.
After it had
technically ceased to exist, the Parole Commission
claimed it needed more time to complete its work. Congress inexplicably granted a number of
after-the-fact extensions, the first in 1990 and
others periodically thereafter. These extensions were
legally invalid and therefore inapplicable because, at
the time they were made, the Parole Commission had
already been abolished.
"Old
system" prisoners
should have been given their release dates by October
11, 1989, minus sufficient time to exhaust appeals. Had the Parole Commission followed the congressional
mandate, such prisoners would have been released over
a decade ago. Lacking in any statutory authority, it
has been argued, the
U.S. Parole Commission illegally
extended the terms of imprisonment of these prisoners
in violation of the ex post facto,
Bill of Attainder, and Due Process clauses of the U.S.
Constitution.
Why
hasn't the U.S. Parole Commission's behavior been
seriously challenged?
The only explanation is political gain, i.e., that
the Commission was used as a political tool for the "Get
Touch on Crime" platform so popular
throughout the 1980s and 1990s. Also, those who may
have had the authority to reverse the trend likely did
not do so because they did not want to be perceived as
being soft on crime.
The
U.S. Parole Commission's actions or lack thereof indicate the
existence of an arbitrary and capricious no-parole
policy, however, one based on the thought that "old system"
prisoners are somehow unsuitable for parole. This policy is
likely directed towards those federal prisoners,
including political prisoners, who
have been given the higher classifications (or
security ratings) possible due to the severity of their
alleged offense(s)
and, consequently, also have been rated as having a
poor parole prognosis. For these prisoners, the time
they will serve in prison is
entirely up to the discretion of the parole authorities.
It also should be noted that many
political prisoners, as evidenced in the two above case studies, were
convicted decades ago and received lengthy prison terms albeit with the
possibility of parole. The U.S. government continues to resist their
release, however, pointing to the severity of their alleged offense(s) for
justification. The U.S. government
does not acknowledge the existence of political prisoners while in practice, and contrary
to the concept of American blind justice, it classifies dissidents as the
worst offenders compared to nonpolitical inmates. In the end, through
manipulation of parole guidelines, the government metes out harsher punishments to
political prisoners. The U.S. Parole Commission apparently assesses the
likelihood for success if released on parole based on a prisoner's status
rather than alleged offense(s), i.e., on prior or continuing political
affiliations and/or beliefs that the Commission perceives as a threat to
the American way of life. This is, without a doubt, a violation of the
rights afforded to all Americans by the U.S. Constitution.
A parole policy that does not take mitigating
circumstances into account (as regards a prisoner's alleged crime
and/or the presence of official misconduct in the
case, the inmate's current age and/or health status,
and other case-specific factors), as well as fails to
acknowledge an exemplary prison
record, is an inherently unfair one. No case-by-case
determination is actually made and the
disposition of a parole petition—denial
in favor of the inmate's continuing in the custody of the DOJ
for an undetermined period of time—is, in fact, decided before the parole hearing ever takes
place. Such matters raise serious constitutional
issues.
On May 19, 2005, the United
States District Court ruled that the California Board of Prison Terms (BPT),
at minimum between 1992 and 1998, disregarded regulations ensuring fair
hearings "and instead operated under a sub rosa policy that all murderers
be found unsuitable for parole."
This was a policy instituted by
gubernatorial politics in the state and the factual record of the
no-parole policy was unrefuted by the BPT. Instead, they relied upon a
finding of "some evidence" in each case to justify the no-parole action.
The court rejected this because there will always be "some evidence"
to explain a denial or rescission, adding, "Federal due process requires
more."
Noting prior case law establishing the existence of a state-created
liberty interest in parole, the court rejected any process that amounted
to arbitrary and capricious behavior. One foundational process is the
guarantee of a fair and impartial fact-finder. Citing Edwards v. Balisok,
520 U.S. 641, 648 (1997), the court held that "a decision made by a
fact-finder who has predetermined the outcome is per se invalid—even
where there is ample evidence to support it." (Coleman v. Board of Prison
Terms, No. 2:1996cv00783, E.D. Cal., May 20, 2005. Unpublished.)
Conclusion
One argument commonly used
in favor of punishment is that it deters crime. To be an effective
deterrent to crime, however, punishment must fit the crime. In
the case of a wrongful conviction, no matter the cause, no amount of punishment can be—or
ever will be—just.
Our system dictates that persons must be found guilty beyond a reasonable
doubt. Nefarious misconduct by investigators, prosecutors, and/or judges
must always raise serious doubt. Official misconduct is not only
repugnant, but "pollutes the waters of justice," and, for that reason
alone, warrants a reversal of a conviction.
This is not a debate about guilt or innocence, that is to say. This is
about our Constitution and system of justice.
To protect and defend our rights, it is in Americans' best interest to
continually address the issue of wrongful conviction. To do otherwise is
to reject the ideals on which this nation was founded, as well as the
precepts of American justice.
We must,
first, take into account that wrongful convictions frequently occur—even
and particularly at the federal level. Then we must seek to correct
wrongful convictions as expeditiously as possible and prevent their
reoccurrence. Only then will faith in our system of justice be restored.
Only then will Americans once again be able to hold up our system of
justice as a standard to the world.
Delaney Bruce
Reprinted With Permission of the Author
First published on 24 April 2006
Revised in April 2008
Contacts
Yorie Von Kahl
#04565-059, USP-Terre Haute, U.S. Penitentiary, P.O. Box 33, Terre Haute,
IN 47808; Web site:
www.yorievonkahl.com.
Leonard Peltier #89637-132, USP-Lewisburg,
U.S. Penitentiary, P.O. Box 1000, Lewisburg, PA 17837;
US v
Leonard Peltier; Web
site: www.FreePeltierNow.org.
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