Installment 5: The Wheels of Justice Grind Inexorably & Fine
From August until October 2010 I idled away in a for-profit prison, surviving on baloney on white bread and overpriced vitamin supplements bought at the prison gedunk, waiting for the Justice Department to actually do something with my case. My legal representation (mentioned before) I will call "Attorney A" (or AA for short from now on). He is charming and seems realistic. Over the course of the following few months his deficiencies, negligence and misconduct proved life altering for me. We dismissed him by the following spring after he wreaked irreparable damage to my case. Though we fired him we could not get him out of the case for many, many months. In fact, until 2015. He was privy to the case progress after we terminated him even as we sued him for malpractice. There is no need for me to go on describing his faults or derelictions in my case as they have already been chronicled by wonderful attorneys, who are much better writers than I am, at length, and can be found in U.S. Federal and N.C. State Court records if anyone ever wants to read it all.
In the jail in VA, we spent our days teasing threads from towels and mattresses to use as dental floss, as well as tying magazines together to make stab proof vests to sell. I saw my first prison riot and had a tear gas ball from a paint-ball gun smack me in the face. Who knew they weaponized paint ball guns for the prison industrial complex? Go USA!
Lawyer AA visits me in Virginia randomly and basically repeated that we are awaiting the government's decisions in all aspects of the case. This tactic of acquiescence is why Federal prisoners call attorneys like AA "plea merchants."
Here is a little riff on plea bargaining with the Department of Justice.
Dealing with the DOJ is never at “arms length;" they own the field. The Feds are all powerful and have a system that allows them to almost never be beaten. They 'plea bargain' almost every case so very few ever go to trial. Thus, there exist attorneys who will, for a fee, simply hold your hand while they lead you to slaughter and never do any work as you'll be guilty regardless of the facts of the case. The prosecution gets to say who's guilty and who isn't. There also exist incredible attorneys, stellar advocates, who will fight for you and go above and beyond, but more on them later, for at this time of my tale I'd yet to meet one.
So unbeknownst to me, AA was doing nothing that I was asking him to do to prove my innocence (such as, but not limited to, investigating the case, or speaking to my chain of command, or manage my affairs at all. Rather, he was simply being the best friend that the government could ever wish for - and in an adversarial legal system such as the US, this is suicidal for the defendant. Some say he did this as a deal with the prosecutors, 'I'll serve this high profile one up on a plate and you go easy on me in future cases.' But since the prosecution never has to release its communications regarding a case, unless a federal civil rights lawsuit is successfully prosecuted, you can never know why your attorney performed so dismally.
My attorney bargained a plea and turned a deaf ear to all requests to do otherwise. Admittedly, in our extortionate system, a plea, though it makes nugatory the Constitutional right to a trial, is an attractive option for anyone who is not financially independent. Once a determination is made that a crime may have occurred, the first step of federal criminal prosecutors is to develop a theory of the case aimed at maximizing the number of charges to be brought and severity of those charges. This allows them to estimate the maximum sentence a defendant may receive at trial. So, when faced with 30 or 40 years in stony lonesome, regardless of whether the government actually has evidence to use against a defendant, at least 98% of federal defendants, innocent or guilty, opt for a much more attractive offer of 5 or 10 years. The 'bargain' has long been taken out of 'plea bargaining' and now it's just called 'pleading' or 'the plea.'
Occasionally a wealthy person stands up to the Feds, such as Mark Cuban, who, when charged with insider trading and told to pay a one million dollar fine and plead guilty said, “No.” Instead he took them to court and spent seven million dollars on his own defense to win at trial, thus becoming part of the less than 1% than wins at trial against the Feds. He has since repeatedly written about the crookedness of the system in multiple op eds in major papers like the Wall Street Journal, and I highly recommend reading them.
[Editor's note -The same month that Steve was charged with exporting weapons without a permit Erik Prince (owner of the Blackwater mercenary army) was charged with the same thing for moving thousands of weapons, heavy and light, into South Sudan. The difference being that Prince was offered a plea he couldn't refuse; he was charged with a misdemeanor (not a felony) and he was fined about $42 million (yes million) which he paid before being allowed to emigrate to a Middle Eastern state with no extradition agreement with the US. Ours is a two-tiered legal system.]
While I mouldered away in a Virginia for profit prison, federal agents and other law enforcement in several countries, in pursuit of a suitably damning theory of the case, terrorized my family, friends, and associates. They braced anyone and everyone they could think of in an attempt to find anything or anyone who might support their narrative. Slander, threats and lies were employed to apply pressure to me during the plea negotiations and to subvert my support network. They told one and all, “He's not the man you think he is” and threatened to ruin peoples lives. For example they told my wife that they could can seize her house when, in fact, they couldn't. They would say virtually anything to break associates, to induce friends and family to speak against me. In some cases people cracked, distanced themselves from me, deleted themselves from my life electronically. But, since there was no crime, the government could find no individual who would or could give evidence of anything more important than the occasional smoke. For the brave ones who refused to bend to strong-arm tactics, I say Bravo. To those who folded and ran from the field I'll quote Shakespeare: "A coward dies 1000 deaths," and to the loved ones pressed beyond resistance I say, as I have all along, I am sorry for your suffering.
After a couple of months, the indictment came down. It had 7 counts, that is, 7 individual crimes charged against me. As with the rest of the filings for court, I shall be brief about them as you may read them if you like on the PACER system. These charges were then proffered to a Grand Jury to determine if I should be tried for any or all of them. A grand jury consists of citizens asked to sit in closed session for several days and review cases. The cases are presented by the prosecutor in secret, without any input from the defense. Needless to say, virtually all cases sent to a grand jury are approved for prosecution. Indictments are issued, a criminal is charged.
Famously, a United States Senator, Trent Lott, said "You can indict a cheeseburger in this country," because the government simply tells the jurists that they believe crimes have occurred. The evidence presented to them is simply the opinion, or testimony of opinion, made by the government's agents. If a grand jurists protest at the lack of evidence, then the prosecutor says "Well it will come out at trial" and pushes them to indict anyway (see the Harper's magazine piece "Confessions of a grand jurist"). This, though, is just a sop for, as noted above, at least 98% of indictments never reach trial. Last year less than 2,000 Federal cases went to trial.
Each indictment carries a maximum penalty, which is always disproportionally high. The press receives the indictment from the prosecutors as a press release. To poison the pool of potential jurors, the prosecutor then follows up interviews to further defame the defendant in the press. The press then generally adds up the maximum charge for each indictment and reports to the public something like 'Federal prosecutors today handed down a 7 count indictment for which [fill in defendant name] could face up to 215 years imprisonment.' Rewriting press releases now passes for journalism in America.
From the perspective of a defendant, confronted at last with the extent of government ambitions, it can be a terrifying moment. If found guilty of even one of the indictment counts, they will still be given a lengthy sentence. The government needs a conviction on only one count, and since there are over 600,000 Federal crimes that require incarceration, even the most technical point can get someone decades in prison if a jury returns a guilty verdict on any indicted charge. At this point in my journey things became very, very serious. I now could estimate the cost of defending all seven indictments.
My attorney and my more experienced fellow inmates educated me regarding what to expect. And perhaps the scariest thing was that, assuming the ability to spend a fortune on defense and assuming the lawyers fight the prosecution to a standstill, the jury may still not reach a conclusion whereupon the judge will declare a mistrial and you will be confronted with paying out another fortune. It is a system designed by and for lawyers, not defendants, and certainly not for the public good.
That cost of going to trial was prohibitively expensive. Bear in mind that this was all before we discovered that attorney AA had not done one substantive thing to investigate my case. So, we entered a new phase, a phase informed by sentencing after a guilty pleas.
Sentencing is not in any way fixed in stone. Instead a sentence is determined by calculating “enhancements." Enhancements add or subtract months from a sentence. So, if you were fully cooperative with investigators and gave them useful evidence against others, your enhancements will tend toward the low end of the allowed term of imprisonment. If, on the other hand, you were uncooperative with investigators, a difficult negotiator, or if, as sometimes happens, you were an innocent party inadvertently caught up in the chain of evidence in someone else's crime and have nothing to offer in return for leniency, you are screwed. Prosecutors can enhance the recommended sentence to the maximum allowed. All that stands between a defendant and this sort of prosecutorial abuse, if the defendant is lucky, will be a benevolent judge; there are very few of them.
I once heard a reporter say that "Martha Stewart should have taken the generous plea deal the government offered her." I suppose he was inferring that she should have saved the taxpayer the cost of trial. Well, if she had, it is certain that the prosecution would have enhanced her. She had the wherewithal to go to trial and it saved her years of time served for unsubstantiated capricious opinion that would have surely followed her pleading guilty.
So with my indictment, I was assigned a Federal judge in the Eastern District of North Carolina. The US divided into federal districts and each one has a certain number of judges appointed by the president who occupy their role for life or good behavior, whichever ends first. In my district sit 5 judges. One of them holds the record for the most years given out by any judge in the world (he is in Guinness Book Of Records: over 1.5 million years) who even into his 90's sits with aid of machines on the bench giving out the maximum he can for each sentence.
My judge though will turn out to be one with a better reputation. Let's call him "Judge H.” I will emerge in 2014, thanks to Edward Snowden's revelations, that he is also the head judge of the secret FISA court in Washington DC which signs - without giving any legal basis or justification - authorizations for the NSA to spy on all Americans all the time. So it was probably no coincidence that my case landed on his desk. He was accomplished at dissembling law to cover the backsides of US intelligence agencies.
With the assignment of the judge, at the end of October I was moved back to North Carolina, specifically to the regional jail known as PCDC in Greenville N.C., where the judge sits. Publicly funded county jails, such as PCDC reflect their localities and particularly the political proclivities of the sheriffs who run them. Some sheriffs get elected based on "tough on crime policies" that include denial of amenities to those in their jails, but since most jail occupants are "innocent until proven guilty" the needless punishment regimes add to the difficulty of defending oneself if denied bond. I'll write more later about my horrific stay at PCDC.
Meanwhile, though, as it happened, the day I arrived at PCDC I became a father, though I didn't learn this for some days. This gift probably saved my life, certainly saved my sanity, as the boys gave purpose to me as I headed into the darkest phase of my pretrial, a year in solitary confinement.
Steven N. Greenoe