Pubdate: Sun, 05 Jan 2014
Source: News & Observer (Raleigh, NC)
Copyright: 2014 The News and Observer Publishing Company
Author: Deborrah L. Newton


Regarding George Will's recent column "Blunt force justice for drug 
offenses" regarding federal "draconian sentences": I applaud 
publicity of the problem but remain frustrated that the media fail to 
see the elephant in the room. That elephant is: Why do (sometimes 
innocent) defendants bend to the federal prosecutors' pressure to 
plead guilty in the face of Section 851 notice of enhancements or 
mandatory minimum sentences or threat of superseding indictments 
elevating risk of increased prison exposure? The answer: Because of a 
prosecutorial conviction tactic neither prosecutors nor defense 
lawyers have any incentive to reveal.

Prosecutors employ the tactic for that "97 percent conviction rate," 
enhancing careers and enriching departments and, for some, simply for 
the pleasure of ensuring people are imprisoned for as long as humanly 
possible under their zealot watch, truth be damned. Defense lawyers, 
who in federal court command $25,000, $40,000 or sometimes over 
$100,000 because of the threat of this tactic, are greatly enriched 
when defendants plead guilty and they "turn" these defendants into 
agents for the government. As such, prosecutors and favored defense 
counsel are in collusion against a constitutionally threatened subset 
of society.

The "tactic" is the government's knowing use of false "snitch" 
testimony. The only way to defeat it is to try the case before a jury 
and attempt to reveal the lie. It is a rare defendant who has such 
courage in the face of the unique federal sentencing scheme of 
"relevant conduct" exploited and unrecognizable in Pre-sentence 
Investigation Reports.

The other "tactic" discouraging a jury trial? Defense lawyers who 
challenge the evidence are blackballed by federal prosecutors to 
encourage their cooperation. The Hobson's choice for defense 
attorneys is: Do I go along, enter the plea/cooperate scheme and take 
home my dirty money? Or do I challenge the false evidence and find 
myself shut out of the scheme -- and maybe livelihood -- altogether 
by blackballing?

The only safeguards to such an insidious partnership are the rare 
(some would even say foolish) defense attorneys who try these cases 
and the integrity of our gatekeepers, federal judges.

This scheme is why the constitutional protection of a defense and 
trial are all but gone in federal court. However, those of us who 
fight against such an institutional attack on the constitutional 
right to trial by jury occasionally experience a glimmer of 
hard-fought justice. After eight long years of trying drug cases 
before Eastern District juries, we received a new trial for one of my 
clients, who was convicted on the weight of wholly false snitch testimony.

Is the federal jury system corrupted? Yes, in the way it has been 
used to secure the "97 percent conviction rate" without a jury trial. 
Can it be saved? I would say -- today -- yes.


The writer is a federal criminal defense lawyer. The length limit was waived.
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