Category Archives: Criminal Justice

War On Drugs? Give Me A Break!

Will the administration’s obvious war crimes finally motivate Congressional pushback? We can only hope.

As I write this, the media is filled with stories about the attacks on fishing boats ordered by Trump and Hegseth, and evidence of their illegality. Trump has been ordering these vessels blown out of the water, and Hegseth has reportedly ordered survivors murdered, in clear violation of the Geneva Conventions and the laws of war.

These actions are being investigated by Congress, and we can only hope that partisanship will not distort that investigation, because the purported reason for these attacks is patently phony. 

Trump insists that the attacks are efforts to stop drug trafficking–that the boats that have been blown out of the water aren’t really fishing vessels. Of course, as is typical for this administration, the boats have been attacked and their occupants killed with absolutely no evidence offered or due process occuring. We’re supposed to take Trump’s word for it (despite ample evidence that when Trump’s lips are moving, he’s lying.)

What makes these allegations even more suspect than other Trump lies is the enormous hypocrisy of Trump’s claim to be against the importation of drugs. As Charlie Sykes–among others–has pointed out, his attacks on these fishing boats and his threats to invade Venezuela come at the same time as his pardon of Juan Orlando Hernández, a Honduran ex-president convicted of cocaine trafficking who has boasted about stuffing drugs “up the gringos’ noses.”

The American public is evidently supposed to believe that Trump blew up fishing boats and is threatening  a military campaign in an effort to deter drug trafficking–at the same time he is ordering the release of a man convicted of taking “cocaine-fueled bribes” from cartels–a man convicted of using the full power and strength of his state — military, police and justice system–to protect drug traffickers, a man who–as prosecutors convincingly demonstrated– allowed “bricks of cocaine from Venezuela to flow through Honduras en route to the United States.”

As Sykes summed it up:

  • Trump declares war on drug kingpins.
  • Trump’s uses the war on drugs as the justification for extrajudicial murders on the high seas; and calls for the execution of six Democratic members of Congress who tell members of the military they do not need to follow illegal orders.
  • As part of Trump’s war against drug kingpins, SecDef Pete Hegseth orders Seal Team 6 to “kill everybody,” including unarmed survivors.
  • We are inching toward the invasion of Venezuela, because its president is allegedly a drug kingpin.
  • Trump pardons notorious drug kingpin.

Paul Krugman also addressed the obvious hypocrisy,

At first glance, the juxtaposition seems bizarre – Trump is either murdering or committing war crimes against people who are at worst small-time drug smugglers, and may be innocent fishermen, while pardoning a drug lord who was responsible for thousands of American deaths while savaging his own country, Honduras. But there is a pattern to this murderous madness, once one connects the dots between Trump’s mob-boss persona and the billionaire crypto/tech broligarchy.

According to Krugman, Trump’s vendetta against purported penny-ante drug smugglers is intended to set the stage for an invasion of Venezuela. And he reminds us that Trump “positively revels in his association with big-time criminals, whether it’s Putin or Saudi Crown Prince Mohammed bin Salman” or Ross Ulbricht, whose underground e-marketplace is known for drug trafficking, and whom Trump pardoned immediately after assuming office.

Still, why would Trump, whose poll numbers are cratering, generate even more negative headlines by pardoning Hernández, who was duly convicted of conspiring to send more than 400 tons (!) of cocaine to America?

The answer is the influence of the crypto/tech broligarchy. In fact, many of Trump’s pardons of the most egregious criminals are closely linked to their influence.

Krugman points out that Peter Thiel was a supporter of Ulbrict and that the ex-president of Honduras is also connected to  the titans of crypto-currency. Those ‘crypto-bros” were also behind Trump’s pardon of Changpeng Zhao, formerly the CEO of  cryptocurrency exchange Binance. Zhao pled guilty to charges of violating U.S. laws against money-laundering and was personally fined $50 million, in addition to Binance’s fine of $4.3 billion.

The revelations of wrongdoing go on. And on.

In one of the recently disclosed emails from Jeffrey Epstein, the predator wrote “I have met some very bad people … none as bad as Trump.” In several others, he referred to Trump as insane–and a danger to America.

Believe the predator. 

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Losing The Rule Of Law

It isn’t just the loss of due process (yesterday’s lament).

The Bulwark recently published an essay comparing the rule of law to the rule of Trump which is displacing it. You will not be shocked by the article’s conclusion that the two are incompatible. Under the rule of law, for example, certain specified persons are empowered to use force on behalf of the state in specified circumstances against persons engaged in specified activities. The rule of law does authorize state violence, but only under the enumerated circumstances–and other laws restrain government officials from engaging in such activities.

Under the rule of Trump, inevitable conflicts between public safety officials and people with whom they engage become conflicts “between angels and demons.” In Trump’s mind (I use the word “mind” hesitantly), “military police are heroic patriots by virtue of being in his military police.” Criminals are people who anger or cross him, or object to Trump’s will. By definition, they are dangerous insurgents who must be rooted out.

In other words, criminals are whoever Trump says are criminals, including the invented rioters and murderers in his fanciful descriptions of the horrors of life in Blue cities–descriptions so at odds with reality that they confirm his mental derangement.

The New York Times recently interviewed  50 members of the Washington, D.C. legal establishment, men and women who had worked as high-level officials for every president since Ronald Reagan. The group was evenly split between Republicans and Democrats. All of them were appalled.

One former official who served in both Democratic and Republican administrations–including Trump’s first term–was quoted as saying “What’s happening is anathema to everything we’ve ever stood for in the Department of Justice.” There was a near consensus among the officials surveyed “that most of the guardrails inside and outside the Justice Department, which in the past counterbalanced executive power, have all but fallen away.”

The indictment of James Comey, the former F.B.I. director who was charged only after Trump fired the prosecutor who refused to do so and installed a pliant operative in his place, represents a misuse of power that several respondents said they had never expected to see in the United States.

The survey found a “collectively grim state of mind.”

All but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.

And every single one of the 50 respondents believe that Trump and his attorney general, Pam Bondi, have used the Justice Department to go after the president’s political and personal enemies and provide favors to his allies.

At the end of his first term. Trump pressured the Justice department to investigate obviously “fact-free” claims. Bill Barr, who was attorney general at the time, had been a close ally of Trump, arguably subverting DOJ independence on Trump’s behalf in several matters. But when Trump pressured him to pursue allegations that Joe Biden had won the 2020 presidential election because of voter fraud, Barr wrote in his memoir that it was an ask too far, and he resigned rather than give in. Other top officials also threatened to resign rather than use the department in a dishonest effort to overturn the election.

Because of the lawyers in the room, the safeguards held. But if such a scenario were to play out in Trump’s second term, the same result is “unthinkable,” said Peter Keisler, who was an acting attorney general under President George W. Bush.“No one in the room now will say no,” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of “bad ideas” were the wrong kind of lawyers. “The president has set it up so that the people who are there are predisposed to be loyalists who will help him do what he wants.”

The dismantling of the rule of law began immediately after Trump assumed office the second time, with his shocking grant of pardons and commutations to the Jan. 6 rioters. It has continued with innumerable other examples, many of which were enumerated in the Times article.

It was significant that all 50 respondents faulted Congress for doing little or nothing to fulfill its role of restraining the president–and a majority also faulted the rogue Supreme Court. When checks and balances no longer check and balance, autocracy flourishes. 

RIP rule of law…..

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RIP Due Process

During my tenure as a college professor, I taught graduate and undergraduate classes in Law and Public Policy through what I called a “Constitutional lens.” I was convinced–and remain convinced–that policy decisions unconnected or antagonistic to the country’s underlying legal framework are illegitimate, and that the public affairs students who would become police officers, public managers or legislators needed an education grounded in the Constitution and Bill of Rights.

When we came to the 4th and 5th (and 14th) Amendments, the lessons revolved around the purpose and definition of “due process.” I used to introduce that discussion by drawing two circles on the blackboard (or later, the whiteboard..)–one large circle, which I labeled “the 500 pound gorilla” and a much smaller one labeled “the individual.” As I would proceed to explain, due process guarantees were intended to level, to the extent possible, the mismatch between the power of the 500 pound gorilla (the government), and the resources of far less powerful individual citizens–to require the government to prove its right to deprive a citizen of either  liberty or property.

The Fourth Amendment is considered one of the due process Amendments. It requires that the government have probable cause to arrest a citizen. The courts have (until now) defined probable cause as sufficient, reasonable, articulable grounds to believe that a crime has been committed, is being committed, or will be committed, in order to justify an arrest, search, or issuance of a warrant. Hunches or suspicions aren’t sufficient–and until this year, arresting someone solely on the basis of their identity would constitute a clear violation of the Fourth Amendment.

There are three kinds of due process recognized in American jurisprudence: criminal due process, civil due process, and substantive due process. I have written extensively about the current attack on substantive due process, which limits the areas of our lives in which government can properly intervene. When it comes to criminal due process, legal scholars frequently use the phrase “fundamental fairness” to summarize the elements intended to provide an accused person with a fair hearing, including a trial overseen by an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials relied upon by the prosecution, the right to confront and cross-examine adverse witnesses, and the right to appeal an adverse result.

In my undergraduate classes, I sometimes used a tape from an episode of “Star Trek: Deep Space Nine” (yes, I’m a nerd) to introduce due process. In that episode,  Miles O’Brien, the station’s Chief Engineer, is arrested by Cardassians (the series’ aliens) while on a vacation. The Cardassian system is the mirror opposite of ours–O’Brien isn’t told what he was accused of, his lawyer is appointed by the state to “make the case” for his eventual execution (which was scheduled before the trial began), the Judge was also the prosecutor, and so forth. My students would be reliably outraged at the obvious unfairness of that system, and that outrage led to thoughtful and productive discussions about what a truly fair trial would look like and the reasons for the multiple requirements of “due process of law.”

The current, corrupt Supreme Court is allowing the Trump administration to eviscerate those constitutional guarantees. In Noem v. Vasquez, the Court lifted a lower court injunction against patently unconstitutional arrests of people believed to be non-citizens, essentially holding that ‘looking like an immigrant’ can now be considered probable cause for stop, arrest, and detention.

It isn’t just Supreme Court rulings diametrically opposed to years of precedent.

The Prospect, among other sources,  has reported that ICE deliberately uses bureaucratic excuses and location transfers to isolate detainees both from their families and from their lawyers. Only 23 percent of defendants in immigration court even have an attorney in court to represent them. (Unlike in criminal courts, defendants in immigration court aren’t entitled to representation.) But those who do have attorneys are struggling to connect with them. The Prospect report documents the impediments ICE has intentionally constructed to keep these detainees in situations the report describes as “punitive and desperate” and to deprive them of due process.

So here we are. We have a Supreme Court untethered to long-standing constitutional guarantees, and a federal agency committed to denying their indiscriminate targets anything resembling fundamental fairness.

We’ve unleashed the 500-pound gorilla. I’m glad I’m no longer teaching….

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Context Matters

How many times have you told someone you would attend gathering A, or accomodate request B, then been unable to follow through? Perhaps it was due to an illness or family emergency or simply because you’d forgotten about a pre-existing obligation. It’s not uncommon–compliance with previous promises is, unfortunately, contingent upon the continued reasonableness/ability to perform.

When the news broke about President Biden’s pardon of his son, despite earlier statements that no such pardon would be forthcoming, I didn’t realize that the context had changed–dramatically. And even then, to be honest, it didn’t bother me; anyone familiar with the laws governing Hunter Biden’s prosecution can attest to the fact that he faced penalties far more severe than those sought against others in the same circumstances– only because his name was Biden. (As former U.S. Attorney Joyce White Vance made clear in her Civil Discourse, Hunter Biden wouldn’t even have been criminally charged if he had been anyone other than the president’s son). The relentless effort to use him politically to hurt his father was obvious and unfair. So–while a pardon did violate the President’s prior promise not to issue one– I really thought it was appropriate.

And that was before I realized how dramatically the context had changed. As Heather Cox Richardson has explained, 

The pardon’s sweeping scope offers an explanation for why Biden issued it after saying he would not.

Ron Filipkowski of MeidasTouch notes that Biden’s pardon came after Trump’s announcement that he wants to place conspiracy theorist Kash Patel at the head of the Federal Bureau of Investigation (FBI). Filipkowski studies right-wing media and points out that Patel’s many appearances there suggest he is obsessed with Hunter Biden, especially the story of his laptop, which Patel insists shows that Hunter and Joe Biden engaged in crimes with Ukraine and China.

House Oversight Committee chair James Comer (R-KY) spent two years investigating these allegations and turned up nothing—although Republican representative Marjorie Taylor Greene of Georgia used the opportunity to display pictures of Hunter Biden naked on national media—yet Patel insists that the Department of Justice should focus on Hunter Biden as soon as a Trump loyalist is back in charge.

Notably, Trump’s people, including former lawyer Rudy Giuliani and his ally Lev Parnas, spent more than a year trying to promote false testimony against Hunter Biden by their Ukrainian allies. Earlier this year, in the documentary From Russia with Lev, produced by Rachel Maddow, Parnas publicly apologized to Hunter Biden for his role in the scheme.

The victory of Donald Trump and his subsequent unqualified and inappropriate choices for important government positions raised the very real prospect that the FBI and Justice Department might literally fabricate evidence, or collaborate with a foreign government to ‘find’ evidence of a ‘crime,’ with zero accountability–that going forward, those agencies would be used as political weapons rather than legitimate law enforcement mechanisms, and would focus on Hunter Biden, among others.

Richardson pointed out that most media outlets had failed to tell the full story–to provide the context within which a prior promise could not–should not–be kept. Several pundits have asserted that Biden has given Trump license to pardon anyone he wants, evidently forgetting that in his first term, “Trump pardoned his daughter Ivanka’s father-in-law, Charles Kushner, who pleaded guilty to federal charges of tax evasion, campaign finance offenses, and witness tampering and whom Trump has now tapped to become the U.S. ambassador to France.”

Trump also pardoned for various crimes men who were associated with the ties between the 2016 Trump campaign and the Russian operatives working to elect Trump. Those included his former national security advisor Michael Flynn, former campaign manager Paul Manafort, and former allies Roger Stone and Steve Bannon. Those pardons, which suggested Trump was rewarding henchmen, received a fraction of the attention lavished on Biden’s pardon of his son.

In today’s news coverage, the exercise of the presidential pardon—which traditionally gets very little attention—has entirely outweighed the dangerous nominations of an incoming president, which will have profound influence on the American people. This imbalance reflects a longstanding and classic power dynamic in which Republicans set the terms of public debate, excusing their own objectionable behavior while constantly attacking Democrats in a fiery display that attracts media attention but distorts reality.

As Richardson notes, this lack of balance and context do not bode well for journalism during the upcoming administration. The likelihood is that the media will continue to leave the public badly informed–or completely uninformed– about matters that are important for truly understanding modern politics.

Matters like context.

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The Right Kind Of Prosecutor

During my years as a practicing lawyer, I came in contact with several impressive Black lawyers with degrees from prestigious schools. Almost all of them were–like me–practitioners of civil or corporate law, usually with one of the larger law firms. The Blacks I knew who did practice criminal law were all defense lawyers. And it goes without saying (so I’ll say it), during those years, they all encountered considerable discrimination. 

So what made Kamala Harris decide to be a prosecutor? I think that early decision sheds considerable light on her judgement, her capacity to analyze the legal landscape and determine how best to seek justice.

The politics of criminal justice have inured most of us to a lopsided view of a prosecutor’s role. In communities large and small, lawyers have for years run for the office on promises to bring “law and order,” to be “tough on crime” and to “put the bad guys away.” We do want to put bad guys away, but we also want to be sure that the guys we’re putting away are really the bad guys. And even a cursory attention to the news confirms that–in too many places–innocent people have been imprisoned or worse. (Also in too many places, those errors have been the result of prosecutorial misconduct.)

It’s important that a prosecutor be concerned with justice–not simply with a win/loss ratio.

What triggered this observation was a recent article in the Indianapolis Star about the exoneration of a man who’d spent 15 years behind bars for a crime he didn’t commit. The case against Anthony Bedolla had unraveled amid allegations of potential police misconduct and constitutional violations.

A re-examination of Bedolla’s murder conviction raised serious concerns about whether detectives arrested the wrong man, then failed to disclose evidence that someone else may have been the killer. Instead, they relied largely on the testimony of a compromised and unreliable eyewitness, according to Bedolla’s petition for post-conviction relief.

Last week, a Marion County judge granted the petition and dismissed the charges against Bedolla, who had been sentenced to 45 years in prison for the killing.

The lawyers who obtained Bedolla’s release worked for the Notre Dame Exoneration Justice Clinic and the Conviction Integrity Unit of the Marion County Prosecutor’s Office. I have been aware of the existence of that Unit, which was created by Marion County Prosecutor Ryan Mears. to “identify, remedy and prevent wrongful convictions” because my youngest granddaughter has interned with the Unit since her senior year in high school. (She’s now entering her junior year in college.) She will also be participating in the opening and operation of the Indiana affiliate of the national Innocence Project.

As Mirror Indy has reported, the establishment of that affiliate is something of a homecoming for its director, Fran Watson, and “will build on her decades-long career as the director of IU McKinney law school’s Wrongful Conviction Clinic, which was a founding member of the Innocence Network.” As she explained to the Mirror, while innocence work exposes the reality of  wrongful convictions, and the various reasons for them, it was really the science of DNA that made exonerations possible.

Without DNA, no one would ever believe public defender people like me who said they’re innocent. Then DNA comes along, and the math is the math, and the numbers are the numbers, and they don’t lie, you have the wrong man in prison, and you lied to put them there.

My granddaughter was present when Anthony Bedolla was released. She’s passionate about justice, and–at least at this point–intending to go to law school. (And yes, I am one proud grandma.) But the reason I mention her participation is that without it, I would not have had the opportunity to interact with Ryan Mears, who–like Kamala Harris–became a prosecutor for the right reasons.

It was Mears who established the “Integrity Unit” in the Marion County Prosecutors office. Mears is one of an emerging generation of prosecutors who understand that the justice system has two equally important tasks: to put away the people who pose a danger to public safety, and to ensure that the people being incarcerated are, indeed, the people who deserve that punishment– that the real “bad guy” isn’t still free to harm others.

Public respect for the criminal justice system requires attention to both tasks.

Marion County is fortunate to have someone in that office who understands the importance of both of those obligations. And if Kamala Harris becomes President, we will be incredibly fortunate to have a Chief Executive who understood the importance of systemic justice at a time when far fewer of us did.

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