Monday, January 30, 2017

On how and why I plead guilty to a crime I did not commit.

#9 - On how and why I plead guilty to a crime I did not commit.


Having gone to some length explaining solitary confinement earlier in this memoir, perhaps you may begin to understand why the United Nations 'Special Rapporteur on Torture' declared in January 2012, that more than eight days in solitary confinement is "torture".  I persist in referencing this declaration regarding solitary confinement because I believe solitary confinement is torture and it is also illegal under United States law.


In 1988 the United States signed, and in 1994 ratified, the "UN Convention Against Torture", which thereby became a binding part of US law.  Article I of the convention defines torture to encompass, among other things; “...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.”


In my case, as in many others, the government imposed solitary confinement during the 'pretrial' stage, prior to trial or determination of guilt.  Held in solitary indefinitely, with counsel not informing me of an affirmative defense, I found myself weighing whether to plead guilty or not (for example, comparing the value of the truth of my cause against the monetary cost of mounting a defense against a prosecutor with unlimited resources), my resulting guilty plea was thus influenced by torture."...because the purpose of torture is to force its victim to say what the torturer wants to hear.  Indeed, historically, one of torture’s most prominent uses has been to coerce false confessions, as in the 'show trials' of the Stalinist period."  


This is all prelude to explaining my physical and mental state in February 2011, when I took my plea.  While I was experiencing the psychological, emotional and physical pains of indefinite solitary confinement without conviction or even explanation as to why I had been placed in solitary, attorney A (AA) made one of his sporadic visits to PCDC and delivered simultaneously and without warning, an offer to plead guilty from the prosecution and divorce papers from my then wife's attorneys in England.


Twice in my life I had taken an oath, first to my country and then to my wife, and now I was betrayed by both.  The decision to give my wife a no contest divorce in which I signed over all my remaining assets and possessions, including our house, which I had paid for and which had been declared legitimate by the UK government months before was easy.  Though I was surprised and heartbroken by the divorce papers my decision to grant an uncontested divorce was not a hard one simply because providing for her and our sons had always been and continued to be, my top priority.


It seems my then spouse had filed for divorce days after my arrest and that fact had been kept from me. That she had been in close contact with AA and I had not been included in their conversations would not come out until I sued him. AA was literally working for everyone but me while my attorney. I had been under the impression that she was standing by me while I prepared my defense and thus I had without hesitation allowed her to liquidate assets of mine, including my vehicle and pension fund, all the while her attorneys were filing the divorce papers. Having only ever wished happiness for her, if she could not find it with me, then I hoped she found it elsewhere.  Still, it hurt mightily and I expect it factored into the fatalism that produced my guilty plea.


Most unfortunately for innocent people who were tried nine and twelve months later in the UK as my 'associates' in an unsubstantiated 'conspiracy', my ex-spouse (who had ceased having contact with me, never having explained the divorce to me) then doubled down on her criticism of me and futilely testified against me in their trials.

[Her testimony, as reported, was that she 'knew nothing of me being anything other than a criminal,' was added to a UK prosecution based on inference rather than evidence, thus she allowed herself to be used as a cat’s paw by the UK prosecutors.  Agent 1 also went to the trial, before being indicted himself in a separate case as a serial liar and perjurer, and told the jurors that I had 'already plead guilty' thus inferring I had pled guilty to the conspiracy, which I had not. Neither did I ever give evidence against either defendant in the UK, nor did I appear, nor was I ever scheduled to appear, in any court proceeding in the UK. Later I would receive erroneous reports from UK tabloids making false claims too numerous to list here.]


As to pleading guilty, the decision was difficult, even knowing what I had learned about the Federal system (and have shared with you in previous chapters), and I refused to sign the plea immediately, much to the ire of AA as his pressure tactics were in full effect.  AA's faults in handling my case were too numerous to list here, but are available through court records as I later sued him for malpractice. Suffice it to say that I was not an informed client, and made the decision to plead guilty weeks later under a misrepresentation of the situation and, most importantly, unaware that I had a defense.  This I learned too late from a new attorney, Attorney B (AB).


The relationship with a criminal defense attorney is not like the doctor/patient relationship in that if you get a diagnosis from a doctor that you may question, you may then go to another doctor for a second opinion, not so with an attorney. Once a criminal defense process has begun, attorneys are loathe to intrude on a case that is in progress. In part, this is because of legal canons of ethics that preclude criticizing a fellow attorney without risk, and also there is a reasonable reticence to take on the mistakes made before their participation. Often side-deals are done between the prosecutor and the defense attorney,  For example, the prosecutor may say  If you let us destroy this defendant we' will give you sweet deals on your next three clients as we really want this guy  The temptation to trade a less than ethical agreement now for a more than ethical opportunity in the future is more than most plea merchants can refuse.


When I realized that AA was not acting in my best interests, I sought new counsel through the only means available to me, namely, by asking my family.  Communicating confidentially with anyone was nearly impossible.  The only unrecorded (but observed) communications I was allowed with family was screaming through a plexiglass partition for 20 minutes once every couple of weeks after they had driven many hours to see me.  All letters were required to be sent by me unsealed and all received by me had been opened and scanned by jail administrators onto a memory disk for the prosecution, all my telephone calls were recorded - not to mention ridiculously expensive. When someone is denied bond and therefore in the jail system, the majority of their communications, and all of their unmonitored communications, go through their attorney. Thus a huge level of trust in the attorney acting in the defendant’s best interest is required. At this point, for me, not only would it be difficult to get new counsel to take the case on, I couldn't ask AA to arrange it.


Since AA had shown himself a 'plea merchant', i.e. an attorney who never intends to defend a client instead, capitalizing on the fact that over 98% Federal cases end by plea bargains, “shines” the defendant on while selling him out, I needed to change attorneys.


Close friends of my family referred them to Attorney B (AB), a real trial attorney and a legendary one. My family met with him in January 2011 but before we could engage him I first had to prove beyond any doubt that AA was what I said he was; totally incapable and unwilling to provide a decent defense. I only managed to do this several weeks later after getting evidence in the form of a disrespectful letter where he bragged about not having to do any work and further taunted me. Managing to get the letter to my family attorney and friend, begging him to intercede on my behalf, is a story in and of itself, better left for later.


Sadly these events would not occur until after I had pled guilty and after I had given up hope of AA directly or inadvertently giving me any evidence of his ineffectiveness that I could then pass on. Had I known to retain AB from the first time I had been approached by Federal agents, I would have probably never spent a night in jail and certainly not gone to prison for as long as I have.


As it happened, though, my attorney (AA) bargained not at all.  He brought me the plea “bargain” the government wanted.  Rather than negotiate limits on prosecutorial liberty to charge or punish me as it would, there was in the plea no limits on the government whatsoever.  They could, within the plea, give me the harshest punishment the law allowed.  AA did though reduce the number of charges against me.  Through multiple superseding indictments, the government had arrived at over forty charges against me, everything but the sinking of the Titanic as a means of discouraging trial by jury because all the government need do is prove one charge to win and the defense had to defend all forty or more at very great expense.  Of the over forty indictment counts, all were dropped except for just two; exporting firearms without a valid export license and engaging in international travel for the sale of firearms. In contravention of standard practices in almost all Federal districts, no statement of what actually transpired was entered by AA on my behalf thus allowing the government to place into the record whatever narrative they wanted, and it be there for all future proceedings (We discovered later, AA never made a single motion in my case, that is, he entered nothing in the record on behalf of the defense, seemingly content to allow the government to monopolize the proceedings and have the case totally their way).


Throughout the process, the prosecutor controls the accumulation of all evidence and controlled access to all evidence. The law provides that anything so harvested should be provided to the defense in a timely manner.  Often, though, if the prosecution wants to surprise the defense they will hold key evidence close and present it in trial without warning.  To any defense complaint about this, they will assert that it 'just came into their possession.'  This may be just a means of frustrating defense attorneys but in some cases, prosecutors “sit on” exculpatory evidence and that may be fatal to the defense.  In my case that was certainly true.


Withholding exculpatory evidence, that is evidence that benefits the defendant, is against the law and is called a "Brady violation" (after a case Brady vs. Maryland). I had no idea how much evidence my prosecutors did not share with my defense counsel for nearly five years after my arrest and imprisonment.  But, finally, when I found myself back in court 2015 I learned the breadth of what the prosecution had hidden and my plea merchant attorney had not demanded to see.


Granting a competency hearing after conviction in federal cases is extremely rare but in 2015 I was granted a hearing on the competency of my counsel.  In that hearing, during the testimony of AA I learned that the lead investigating agent in my case, Agent 1, who had been indicted and tried in a separate case for perjury before being dismissed from the ATF,  had withheld record of my CIA employment and chain of command from the "Record of Interview" ('ROI'), and that was only one of several Brady violations. For example, the prosecutors knew about my Non-Disclosure Agreements and only shared that information with my counsel after the plea was signed.
As it happened, the government did not have any testimony against me, nor confession from me, nor surveillance of me, so they had decided on a tactic of 'snowing in' the defense.  This consisted of providing my attorney (the plea bargainer) tens of thousands of documents unrelated to the case, knowing that AA would not bother to read them all.  That would have intimidated him even if he had not been a 'plea merchant'  who only want to get paid to ensure the paperwork was all in order, rather like a real estate closing.


In short, when AA presented me with the plea he explained my case as unwinnable. He said that I could not present my defense without violating my several Non-Disclosure Agreements (NDAs) which would then result in additional charges being placed against me.  When I repeatedly asked to meet with the prosecutors to confirm AA’s description and ask about exculpatory evidence., AA said I could not speak with the prosecution until
I had pled guilty, and that I had no defense to the charges without having had a license to export granted by ICE, and so forth.  


Lastly, he did not inform me of the process yet to come in which the government would create a 'Pre-Sentence Report' (PSR) which would lay the case against me and ask the judge to assign a certain amount of punishment to me. This is a critical stage in any plea arrangement and my attorney left me in the dark about it. Further, he did not formally ask for any estimation of what the PSR was going to ask for in terms of a sentence for me, which was standard practice, assuring me instead that my plea to sentencing guidelines that I would quickly fulfill by applying the time I had already spent in jail.  So stuck in solitary indefinitely, with an absentee shyster of an attorney, desperate to see a judge and plead my case, knowing full well the power of the Feds and ,most importantly, believing that I did not have a legal defense, after days of anguished fishing for signs of hope to avoid pleading guilty, I signed the plea and mailed it to AA.

sg

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