Installment 7: My Winter of Discontent and Disappointment
Over the winter of 2010-2011, after I was indicted, I waited (and waited, and waited) for the 'motion for discovery' to be filed with the court by the prosecution. 'Discovery' is the comprehensive term for the prosecution's responsibility to present its evidence against the defendant to the court & the defense in order for the defense counsel to prepare its countering presentation at trial. In theory at least, all evidence of the prosecution must be made known to the defense through this process ahead of time, though 'last minute awareness' (in which they unethically, if not illegally, withhold anything that might benefit the defense is an all too common prosecution trick).
Withholding evidence from the defense is called a 'Brady' violation after the case 'Brady vs. Maryland', where it was decided that hiding exculpatory (i.e. evidence that helps the defense, or is in any way beneficial to the defense/defendant) from the defense is never allowed.
There is an argument that has gone on for some time in the USA about whether there needs to be an open file, not controlled by the prosecution, for all evidence, so that Brady violations do not occur. This argument would be weaker if Brady violations weren't as rampant as they are. These days there are national conferences dedicated to examining and exposing prosecutorial misconduct held by prosecutors (Example: 3 June 2016 42nd ABA National Conference on Professional Responsibility in Philadelphia). It is difficult to determine if these conferences are intended to diminish misconduct or to promulgate “best practices.”
Another technique is called 'snowing in' the defense. In this case, during discovery, prosecutors bury defense attorneys with as many documents as they can possibly link to the case most of which don't actually have any relation at all to the case while calling it 'Discovery' (Economist 2011) knowing that the defense then does not have time or budget to read them all, as only the government has unlimited resources. This intimidates lazy or inept defense counsel into believing that the evidence is overwhelming and pushes them to have their client plead guilty.
In my case, there was no evidence against me that was not circumstantial. No witnesses, no statements, no audio, no video, no 'co-defendants' turning evidence against me or people willing to testify against me for the government to display in court. Principally my discovery was a 'snowing in' with some circumstantial threads that AA (my attorney) was to read in order to see the narrative prosecution was going to create. As my indictments had read "with unnamed individuals for undisclosed amounts of money," vagueness was in the extreme.
In spite of the best efforts of an organization with virtually unlimited resources, including threatening people across the world for the preceding six months, absolutely no one came forward willing to support the criminal narrative the government was trying to construct.
Prosecutors, when they lack actual evidence, use whatever circumstantial evidence they can acquire, making up scraps & coincidences into a hypothesis that is then said by authority figures, which naturally, therefore carries weight with the public, and this is what my prosecutor decided to do in my case, first to grand juries and then to the media, and now was preparing to do so again in a trial, or more realistically, to use in the pressuring my attorney to get me to plead guilty. (note 1)
As the holidays approached, I remained defiant, wanting to expose the truth and clear my name, even in the face of the conditions I was being kept in, no matter how long it took. Of course, I was hyper-conscious of the toll this process was taking on my family and I wanted to be able to provide for them, not to mention desperately wanting to meet my sons, which of course the government was cognizant of and would use the threat of delays in proceedings as another pressure point.
Immediately before Christmas 2010, the police in the UK admitted that they had no grounds to seize my house, that I had bought in the wonderful town of Shrewsbury, years before. This was significant not only because it exposed their earlier threats as simply a tactic to drive a wedge between my spouse and I. It validated my lifetime of legitimate earning, but as I had put 50% down in cash and then done subsequent renovations and improvements on the house, it constituted a serious investment that had been under threat.
Securing my wife and kids in their home was the end of the good news. The US government, recognizing my determination to defend myself, and with the intent to break me to plead guilty (as was later admitted by Agent 1 to my counsel before he, Agent 1, was indicted himself and dismissed from the ATF) committed the following coordinated effort against me and mine in the first two weeks of January 2011: First, they paid an informant (i.e. jailhouse snitch) in the jail I was in (PCDC), a professional prisoner with over 16 criminal convictions, to give a statement against me. Since I did not discuss my case with anyone, let alone this man, all he could say were lies. According to his statement, he said that I had a machine gun and armor piercing bullets at my home and that I planned to take a nurse hostage from the medical department to gain escape from PCDC.
How did he even know my name? All prisoners in all the jails I was ever at had wristbands with their names and numbers clearly printed on them. Some jails even put digital photos of the prisoners as well as their names & descriptions on the wristbands. It is a common practice for the inmates to learn the names of other prisoners specifically so that they can then contact their people on the outside to Google the individuals and find out their accused crimes so that they can then concoct statements against them or try and "jump on their case" as it is called, in hopes of getting a reduced sentence for themselves in their own proceedings.
The Feds especially like this as they need only one statement from a witness of any caliber to get a conviction, they do not need actual evidence. That is why in almost every single Fed case there are one or two people who get a small sentence and everyone else gets larger ones. Also, the Feds try and make as many people co-defendants as possible on the same case, as this gives them people to turn against each other.
It is an irony of the US system that those accused of a crime are only trustworthy when testifying against other accused, never in their own defense, and it is a vagary of the US Federal system that hearsay is admitted in Federal cases. So basically, even if you can't be shown to have ever met someone, a statement from them to a Federal agent and you will be held accountable for whatever they claim against you. By these means, prosecutors heap charges and run up the defense costs.
The snitch’s effect was to have me moved into solitary confinement without any explanation at the time as to why. It would be six months later when the above statement from said informant was provided as part of the responsibility of 'Discovery" by the prosecution that we understood how they had justified this maneuver. It was a maneuver that was designed specifically to break me, to hurt me, and to get me to confess to any crime in order to make the pain stop - which is the point of any torture - and make no mistake, solitary is torture. Torture is a weapon against the truth. You're tortured not to reveal a fact but to force you to collude in any fiction proposed.
The UN Special Rapporteur for Torture in January 2012 released a report stating that more than 9 days in solitary confinement was to be considered torture. Unknown to me at the time, was the fact that I was to spend over a year in solitary. I will describe further these conditions in a later installment; for now, I wish to continue to just cover the aspects of the government's coordinated attack as it was implemented against me in January 2011.
The second act by the government was to raid my family homes. The same agent, Agent 1, went in front of the same judge who had presided over my bond hearing and committed perjury by claiming something contrary to what he claimed at my bond hearing, namely that he did not know I owned legal firearms in my family's homes. At the bond hearing he had declared that any legally owned firearms I owned were "immaterial to the case," but of course that was six months previous. when the case was not so political as it had become with press coverage in the US and the UK. (note 2)
The judge either did not catch this contradiction, or was not bothered by it, and issued a warrant for the government to force entry and take whatever they wanted from my mother and grandmothers' homes, which they did (tens of thousands of dollars in personal property never to be returned). 3
They were looking not for anything illegal as they claimed in court which, by the way, they did not find, as there was nothing illegal to find, nor had there even been, but they also wanted to make sure that there was no exculpatory evidence that I may have been hiding.
Further, they do anything possible to subvert a defendant's support network, and they do so with no subtlety whatsoever. They will use of physical assault if possible, they will violate homes simply to intimidate anybody who might provide aid or comfort to a defendant. They will threaten to return and do so again and again.
In this instance, they failed with all but my spouse. She yielded to government threats and deceitful assertions and almost immediately divorced me, mainly, I suppose, out of fear of losing our house and other assets. But my US support network, that is my family and some friends, stuck by me and even made public statements in my support. For example, when a TV news crew showed up at a family home to film what they hoped would be a great drama, they ended up taping a great testimonial to me made by my Uncle. Naturally, that statement from my uncle was shown once at 5:30pm that day on the local affiliate and then disappeared under the barrage of slander spewed out by the government which the press eagerly run with. By these means, the government obfuscate and cover up their intimidation tactics.
The third prong from the government at this time was to press my attorney AA to get me to plead guilty. When I complained loudly to him and to my family of his not doing any of things any decent attorney would do or any of things he was required by law to do, he said that I was mentally unwell.
As AA was my main conduit of communication, this prompted my family to hire the former director of the Federal Mental Health facility at Butner, NC to come to PCDC and test me. He did examine me for several hours, and in the end, he declared me quite sane. At this point I was, in essence, claiming AA was 'ineffective counsel' and therefore my defense was irreparably flawed. (note 4)
We did not know at the time that this was normal for his class of lawyer, who are called 'plea merchants."
A 'Plea Merchant' is a class of lawyer who for a flat fee, will handle your case with just a little more attention than a public defender, but they won't do any work. Instead, their method is to get you to plead out so they don't have to do any work. Plea merchants are endemic in the US Federal system as is witnessed by the following statistic: the last year 97.6% of federal criminal cases ended in plea bargaining (note 5).
Unlike attorneys that will actually search for the bargain in a plea bargain, 'plea merchants' only look to roll their clients into whatever the prosecutor wants. Unfortunately for my case, and for the fees spent on him that we would never recover, he had been charming while we had been naive, so he represented my sole line of defense. And he was; I was in solitary, in maximum security, with no way to make a statement to the press and no legal preparation having been done in my case. This was by any definition a sucky moment.
The fourth and final angle played by the government was to get a second superseding indictment against me, putting me above 45 counts (see earlier description of the practice of 'indictment loading', e.g. giving 50 to get you to plead to just 1 or 2 as there is little likelihood you will beat every one of them at trial).
I learned of this development only when a guard put a copy of the local paper under my door and asked for my autograph on it as there was an article describing the newest indictment and a statement from the US Attorney for the state of NC saying that they were going to bury me. What made the guard notice the story was that there was also a statement from the Secretary of Homeland Security Janet Napolitano who in a press conference in London said that they would punish me to the limit of any available punishments. Clearly "innocent until proven guilty" was no longer even being given lip service in the US legal system.
There will be more on this in the next installment.
Note 1. A serious warning to anyone who reads this. If anything, ever, that has appeared in your communication history can be taken out of context, it will be by a prosecutor. Also, the police/agents will always make adjustments in the prosecution's favor, e.g. 'damp' becomes 'wet'. Emails and text messages are like Styrofoam, they never go away. Try and have any conversation that you do not want to have come up in court to be only between two individuals in an unofficial setting by voice with no chance of recording, otherwise expect it to be brought up later and treat it as such. The thread of any conversation of multiple messages is immaterial to a prosecutors 'cherry picking'. Live as if anything and everything will be subpoenaed. To do otherwise is not to prepare for an all too common eventuality in today's litigious world.
Note 2. Another lesson to be learned is that the government can always get a warrant, always.
Note 3. Washington Post reportage 2013-present - "Agents and agencies sell and trade these seized items to each other, especially collectible firearms and jewelry etc, only sometimes ever acknowledging that they even took possession of said items".
Note 4. Rather than itemize AA's malpractice, I refer anyone curious about this to the filings on PACER (on-line court records for the federal system) as in my later proceedings against him my attorneys did a thorough job of identifying his shortcomings. Those later attorneys had to make up all the work he had not done.
Note 5. In 2015 there were 2002 Federal criminal trials, 40% fewer than in 2009. Federal sentencing guidelines virtually guarantee lower sentences for defendants who plead guilty rather than go to trial, though those that do go to trial are traditionally facing sentences so long that they want to become part of the appellate chain so that any new laws enacted or reformed affect them in future. "The Showman by Jeffrey Toobin pg. 42 New Yorker 9 May 16.
Steven N. Greenoe