The Politicization of American Courts


Flash-back alert: Article originally published Oct. 26, 2010 on the old

Political attack ads are commonplace this time of year. Though we’re accustomed to seeing them from mayoral and legislative candidates, there are a rising number of judges taking to the airwaves as well. These judicial campaigns seem to resemble the other partisan campaigns a little more each year — and that is troublesome.

More and more judges are being slammed in political ads, turning what is supposed to be an impartial position into one just as laced with political overtones and just as tainted with special interest funding as any other political office. And that raises concerns about the legitimacy of the criminal justice system and how this increased politicalization of the judiciary may affect the fairness of our courts.

No better example of the increased politicization exists right now than the case of Illinois Supreme Court Justice Thomas L. Kilbrade. Kilbrade is up for retention next week as his first decade in the judiciary is expiring. Attack ads grossly exaggerating the justice’s rulings are all over the radio and television there, characterizing Kilbrade as being soft on crime and more or less a felon-friendly judge, suggesting he has “sided” again and again with pedophiles and rapists. This despite experts maintaining that all of Kilbrade’s rulings were according to law and not according to the nature of the crime.

Who’s behind this campaign against the judge? An organization that doesn’t like the way Kilbrade has ruled in favor of patients and claimants in malpractice and negligent civil cases. The head of the Illinois Civil Justice League has outright stated that their goal is to remove Kilbrade from the bench and that they will do whatever it takes to accomplish this goal. While their ads may not be illegal, they certainly seem unethical. These actions have brought out judges, prosecutors, and legal experts (from varied political backgrounds) who all speak to the misleading nature of the ads and go so far as to call the campaign “appalling.”

Ninety percent of court business in the U.S. is done within the state court systems. Approximately nine out of 10 states use some sort of election system when choosing the judges for their courts. One of the basic tenets of the judiciary is to remain unbiased and impartial. But one has to wonder if the very democratic nature of their elections undermines this call for fairness.

In Illinois, the Supreme Court bench is held by four Democrats and three Republicans. Kilbride’s district is seen as a swing district and this is largely believed to be why his campaign is getting so much attention — that and the fact that he sides with negligence and malpractice claimants. The four Democratic justices ruled against a cap on punitive damages against corporations, and when you mess with big business, they fight back with big money — with millions of dollars already dumped into keeping Kilbride from getting his retention.

While most state courts are determined by the voting public and often by who has more money to put into a campaign, federal courts are far from perfect too. Indeed, an article in the Georgetown Law Journal points out that often courts, rather than acting as a check on majority power, actually “function as arenas for extending, legitimizing, harmonizing, or protecting the policy agenda of political elites or groups within the dominant governing coalition.”

People like the way being “tough on crime” sounds and Kilbride’s opponents in Illinois are playing off of this. But people are starting to wake up, realizing that being tough on all crime, all the time, costs billions and serves to take many people who aren’t violent out of their communities and away from their families.

As Radley Balko with Reason magazine said this week, maybe the answer is less democracy in the judiciary. If we’re to believe what we see on television and what we hear from lawmakers and special interest groups alike, we would be very frightened of the world outside our doors and would most likely put judges on the bench that would lock up the “bad guys” indefinitely. While putting the subjects of our irrational fears behind bars may feel better on some emotional level, sound logic and research alike show this isn’t always the best method.

The judiciary, whether at a local, state, or federal level, is there to interpret the laws and to see that they are applied in a manner that respects the U.S. Constitution and individual rights. They should not be political figures, but should instead act as unbiased mediators between individuals and the government, with the law as their guide point. Politicizing the judiciary even further can only lead to rulings that pervert the true spirit of the law.

The US Public Defense System: More Broken Than Ever

You might know that when charged with a crime, you have a “right to an attorney” and you may even know that if you can’t afford a private attorney “one will be appointed to you” at no cost. But did you know that the attorneys within this public defense system often don’t have the tools to effectively defend you? Or that, in some cases, they simply don’t care? The public defense system has been flawed for some time. But, it’s getting worse and though the DOJ may talk about it, they aren’t doing anything.

The 6th Amendment guarantees your right to representation. Specifically, it says the accused has the right to “have the Assistance of Counsel for his defence” in a criminal case. The Supreme Court case Gideon v. Wainwright extended this right to the states. Further cases have clarified what this means to include that you must have “effective” representation.

An in-depth piece from The Atlantic recently exposed the current state of the public defense system. Specifically, they reviewed a recent case out of New Jersey, where a defendant first met his attorney in a stairwell the morning before trial. The attorney didn’t know the accused’s case, didn’t know about or call any of the defendant’s witnesses, and basically didn’t give him any heads-up as to what he might face in trial. Though he did have the sense to ask for a continuance, to delay the trial and get things in order, the judge said no, citing his busy schedule.

Not only was Terrence Miller found guilty of the drug charges he faced, the appeals court and most recently, the New Jersey State Supreme Court denied his insistence that he didn’t have “effective” counsel.

Basically, the court said the indigent defendant may have a right to an attorney in name, but not necessarily a good attorney, and is at the mercy of a judge’s schedule or whims when it comes to preparing for trial. It doesn’t matter how well the lawyer knows the case, whether they call witnesses, or whether the defendant even has a chance to tell the attorney his side of the story before trial. None of it matters. If the accused is appointed an attorney, and that attorney is in fact an attorney, well, that seems to be enough.

From The Atlantic:

When it comes to indigent defense,the Obama Administration gets an “A” for candor and an “F” for results. The feds know there is a terrible problem. And they know how to solve the problem. But they won’t spend,  or push Congress to spend, what it would take to do it. This year, for example, the Justice Department proudly announced it would give $1.8 million in grants to “improve access to criminal legal services and strengthen indigent defense across the nation.” This is not remotely enough. Funding for legal aid and criminal defense “should be a priority,” Justice Sonia Sotomayor said Tuesday. She’s right.

As the Miller case tells us, however, money isn’t the only problem. Money for more public defenders, or for more judges to handle more indigent defense cases, won’t overturn the Supreme Court precedents upon which New Jersey relied in precluding Terrence Miller from a fair trial. The state justices held that a lawyer doesn’t have to know the facts of the case, or have any connection with any witnesses or evidence, for the client to be competently represented at trial. All the attorney has to do is show up, and declare himself prepared, and that’s that.  Money alone, I submit, simply can’t overcome this level of crazy.

These injustices will continue unless and until the Supreme Court reverses itself and moves away from its cramped interpretation of Gideon. Do yourself a favor and read through the majority opinion in Miller here. Read the litany of cases in which the New Jersey courts, sanctioned by the justices in Washington, have countenanced as a matter  of law what any reasonable observer would described as gross negligence on the part of defense attorneys. This is what the Attorney General should be railing about in court. This is where Justice Department attorneys should be focusing their briefs.

If you’ve ever priced a criminal defense lawyer, you know they don’t come cheap. As a matter of fact, most of us would likely have to go with a court-appointed attorney if we didn’t want to go into debt in the process of finding a private one. And most of us, as a result, would be subject to the kind of treatment Miller received.

I covered the failing public defense system over three years ago in this piece at Huffington Post, where I tied it to racial disparities within the criminal justice system. Nothing’s changed. If anything, it’s gotten worse. And something must be done.

Can justice still be found in these rooms?
Can justice still be found in these rooms?


Petition filed seeking missing transcript in IRP6 wrongful conviction case

irp6The IRP6 is a group of six businessmen believed to have been wrongfully convicted in the state of Colorado. I blogged several months ago about the effort to see them exonerated for their crimes. The case is complex but involves the men’s company, IRP Solutions, developing software for law enforcement, software that it seemed was destined for greatness. Ultimately the men were accused and convicted of wire and mail fraud. During their case, which is riddled with mystery, the judge held a sidebar with the prosecutor. It’s the details of that conversation that are missing from court transcripts, transcripts the IRP6 are hoping to find.

A detailed four-part series on the IRP6 was recently run by the Maryland Daily Examiner: Under the Radar: The Curious Case of the IRP6

At, Christopher Collins writes that attorneys for the six men have recently filed a petition seeking the missing transcript, which they say shows Judge Christine M. Arguello violated the defendant’s 5th Amendment protection against self-incrimination.

The Petition for Writ of Mandamus filed by Attorney Gwendolyn Solomon alleges breach of contract by court reporter Darlene Martinez for failing to attach her original shorthand notes or other original records, to the tune of 200 pages, to her official certificate and promptly file them with the clerk.

Solomon asserts in the petition, “The verbatim transcript is material to the issue concerning the violation of the Petitioners Fifth Amendment rights. The failure to inspect or be provided the complete verbatim transcript prejudices the Petitioners defense makes it impossible to perfect their appeal and deprives them of due process of law and warrants a reversal on their convictions.”

In the previous news report, black conservative radio show host, Wayne Dupree of NewsNinja2012 said of the case, “Coincidentally, the raid of IRP Solutions occurred a few days after the FBI had to explain at Congressional hearings why they wasted $400 million of the taxpayer’s money developing law enforcement software that did not work. The FBI was embarrassed in front of the world as being incompetent and wasteful.”

The advocacy group, A Just Cause asserts, “Ms. Martinez stated that those records (sidebar transcript from IRP6 case) no longer existed and had been destroyed. The negligent reporting practices of Ms. Martinez resulted in the omission of critical information, and made it impossible for her or her agency to produce a complete and accurate transcript of the proceedings.”

“With the technology that the Judicial Conference has made available to the courts, I can’t comprehend the idea that the court transcripts are not available somewhere”, Sam Thurman of A Just Cause said.

You can read more about the case here, here, and here.

This case’s time in the spotlight is far from over as they have a team of advocates pressing for justice. You can do your part by reblogging or sharing any of the information above on social media.

How you are being misled on the prescription drug problem

When all else fails, throw some pills at 'em...Prescription drug abuse is a problem. If you believe law makers and the media, it’s a major problem that will only be solved by harsh laws. But the portrayal of the prescription drug problem is skewed. Choosing just one article out of the news to dissect, you can see how the people are being misled into buying stricter laws and willingly accepting infringements on their privacy rights.

When it comes to “drug problems” in the U.S., media reports often sensationalize the facts in order to whip the people into a frenzy and gain readers, which ultimately leads to the people fearing crime and drug addiction. This fear then helps lawmakers pass stringent laws handily, as they seek to gain the support of the people by “keeping them safe”.

This article from NBC Bay Area could be any article on the topic from any news organization in the country. Its format–laying out personal stories of families affected by prescription drug deaths, talking about the number of people dying, and then singing the praises of some new, strict law– is repeated again and again across the country. But like any one of these articles, it is misleading.

When the CDC reports more people dying of prescription drug overdoses than heroin and cocaine combined, they do illustrate a serious problem. However, the context of that problem is left out. Prescription drugs are most often lawfully prescribed to people in need. Medication errors (including dosage errors) are one of the leading medical mistakes in the country. Also, because these drugs are very strong and dosing instructions not always easy to understand, mistakes on the consumer end are easy to make.  These errors, both on the prescribing end and the consumer end, frequently end in overdose.

What does this mean? It means that not all of the prescription overdose deaths can be attributed to addicts. Some of them are, sure, but there are other factors at play.

Quoting a DEA agent in the area, hardly an objective expert, the report says “There are a lot of pills flowing around this state, and it’s pretty scary.” No doubt most readers nod their heads at this point.

To further bring home just how “scary” things are, the report says the Kaiser Foundation names California as handing out “the most prescriptions in the country”, amassing 3.9 million prescriptions in 2011. This is shocking. Surely, it is a sign of a major drug problem in the state.

What NBC Bay Area fails to point out is the basic fact that California is the most populous state in the country. Of course they dole out more prescriptions. They also likely dole out more cheeseburgers and more ball point pens. But you don’t see legislation controlling them.

The solution? For California, in this case, it’s a computer program that will allow doctors and law enforcement alike to access the prescription drug records of all patients in order to identify those who might be doctor shopping. Yes, doctors, pharmacists and the police will be able to see your prescription regimen.

We aren’t told what will come next. Maybe they’ll identify addicts and offer them treatment. But that’s not likely. Used as a tool of health care, the system might be useful. Used as a tool of law enforcement and it won’t be. And no matter how it’s used, it’s a questionable infringement on privacy.

Despite all of this, Californians aren’t raising too much of a fuss about it. After all, the prescription drug problem there is rampant. It’s serious and frightening. The news told us so.


Mandatory minimum sentences turn prosecutors into power-wielders

My_Trusty_GavelMandatory minimum sentences were sold as the solution to crime. They were supposed to eliminate disparities while sticking it to the “bad guys”, delivering harsh sentences without compromise. But, they’ve failed. They’ve failed horribly.

Mandatory minimum sentences, paired with the War on Drugs have helped to propel the U.S. into uncharted incarceration territory. We imprison more people than any other nation in the world. And while mandatory minimums did take away the ability for judges to unfairly sentence some to higher sentences than others, they’ve handed that discretionary power to the worst possible candidates: the prosecutors.

In a recent L.A. Times piece, we can see the effects of these laws in action, or rather how these laws have handed prosecutors the powers to determine who is charged with what and ultimately how long they will go to prison.

One Iowa woman, accused of “smurfing” some cold pills for a meth maker in exchange for a single gram of methaphetamines, is now serving five to ten years in prison on federal drug charges. As the Times reports:

U.S. District Judge Mark W. Bennett, a fierce critic of mandatory sentencing laws, thought that made no sense. “Newhouse is not Iowa’s Pablo Escobar,” he wrote in an opinion, referring to the infamous Colombian drug lord.

In an interview from prison in Mitchellville, Iowa, Newhouse said, “I was absolutely a nobody in that case.”

Under mandatory sentencing laws, it has become a not-so-hidden fact of life in federal courthouses that prosecutors — not judges — effectively decide how long many drug criminals will spend behind bars. The result has been federal prisons packed with drug offenders.

There are several problems with this, one of the biggest being that prosecutors are not bound by judicial ethics, they are not an impartial party in the criminal courts. Instead, they are often elected into their position and not least of all, they are the “top cop” of the adversarial system.

Prosecutors have considerable discretion under the laws. If they cite the amount of drugs seized in the charging document, that can trigger the mandatory minimum; if they leave it out, it doesn’t. For offenders with prior drug convictions, prosecutors can file a so-called 851 motion, named after a section in the federal code that automatically doubles a sentence — or makes it mandatory life.

Prosecutors have too much power in today’s courtrooms. They are the shot-callers in our criminal injustice system. And sadly, when they are accused of misconduct that could result in an innocent person being locked away, they are rarely held responsible. 

Arming Everyone: Department of Education Passes Out Glocks to Agents

OLYMPUS DIGITAL CAMERAThese days the police resemble armed forces and it seems every federal agency is beginning to resemble the police. If the militarization of law enforcement is frightening, then the arming of agents in the Department of Education should similarly cause alarm. Special agents with the Department of Education are now supplied with Glock pistols to carry out their duties. What are their duties, you might ask. Good question. The Washington Post reports that these agents do have law enforcement duties as it’s their job to detect waste, fraud, abuse, and “other criminal activity” involving federal education funds. The DOE offers examples of their dangerous jobs like:

In 2008, OIG special agents discovered that a man who had stolen the identities of others to fraudulently obtain federal student aid funds was an escaped murderer who had been sentenced to 27 years in prison for murder and other crimes in Puerto Rico.

In 2004, OIG efforts led to the unraveling of a scheme involving members of a gang involved in drugs, extortion, arson, and racketeering who had stolen federal education funds from a charter school in Philadelphia they operated as well as from the Community College of Philadelphia.

You may think these sort of investigations warrant armed agents, and they may.But the Education Department says no agent of theirs has ever discharged a firearm in the line of duty (this is good news). So are they really needed? Federal law enforcement officers exist in numerous agencies, not just those we commonly think of like the FBI or the US Marshalls. As far as we know, they operate under Department of Justice protocol regardless of the agency they represent. In other words, in order to carry that Glock, the DOE agent has to go through weapons training at FLETC in Glynco, GA. This isn’t the same as arming teachers, but it is a sign of the growing federal police force. If we have law enforcement officers in such seemingly benign agencies as the Department of Education, National Institutes of Health, and the Food and Drug Administration, where is the line drawn? At what point will the arming of our government and the widening of their law enforcement powers become a concern of the average American? My cynical mood today tells me not until it affects them personally.

NBC to Pay Kidnapping Victim: The problems of paid news-media ventures

If I own a company that makes money off of customers, my interests lie in having more customers. If you have a story to tell and I pay you for that story, wouldn’t it benefit everyone if your story brought me more customers? Such goes part of the argument against paid news-media ventures. When news organizations pay for the news, the information they broadcast as a result is more likely to be skewed in the interest of those they paid and in the interest of selling advertising space and gaining viewers.

In some places it’s common to sell stories to the news, Britain for example. In the U.S. it’s generally considered a breach of journalistic ethics. But in this day and age, is anyone really paying attention?

NBC News recently beat out other networks in getting the “scoop” on Hannah Anderson, kidnapping victim– getting interviews with Hannah and her father and broadcasting them across their various platforms. Now, they hope to take it even further. (Apparently the initial coverage was profitable). Now they are offering the Anderson’s an undisclosed amount of money for a documentary style piece of the kidnapping.

The Washington Post outlines a few reasons that this practice is questionable at best: “The money could entice a source to exaggerate the story; it could also compel a news organization to tell only its “partner’s” side of the story, ignoring information that impeaches or undercuts the dramatic tale in which the news organization has an investment.”

This is the kind of journalism practiced by gossip magazines and websites, not credible networks. But depending on your views of the media, this comes as no shock. After all, these large networks are nothing more than the speakerbox for the people who fund them. If you’ve fooled yourself into thinking any of the news stories you hear are fair or impartial, you’re far less cynical than me.

It’s this skewed selling of the news that has led to our current state– where neighbors are afraid to talk to one another and children can’t go outside without their parents. Everyone is running scared from one another because we are convinced the world is a scary, crime-ridden place, despite hard evidence to the contrary. Crime, drama, violence, sex– all these things make for great entertainment. And these days, the “news” is nothing more than that.

The real suspect.
The real suspect.

Can you fly with marijuana? The TSA says maybe

Something clever about "getting high"
Something clever about “getting high”

Attitudes about marijuana are changing across this country. Not only did Colorado and Washington state become the first to legalize recreational marijuana, but another 20 states have medical pot legislation in place, and the Justice Department basically announced a hands-off approach on people adhering to their state laws. With this, people who partake of the healing herb– whether for medicine or for recreation– are feeling a little more free, a little more daring. For many, this means testing the waters of air travel with marijuana. And for them, the TSA is taking surprisingly laid-back approach.

“TSA security officers do not search for marijuana or other drugs. In the event a substance that appears to be marijuana is observed during security screening, TSA will refer the matter to a law enforcement officer,” the TSA announces on their website. “Whether or not marijuana is considered ‘medical marijuana’ under local law is not relevant to TSA screening because TSA is governed by federal law and federal law provides no basis to treat medical marijuana any differently than non-medical marijuana.”

But even when they do find pot, they aren’t always alerting the authorities.

Basically, it’s up to the agent in question and many are a bit lackadaisical about the entire thing. As the New York Daily News reports, TSA luggage screeners in Denver discovered a small bag of marijuana in the suitcase of a rapper named Freddie Gibbs. Rather than call the police in, they left Gibbs a note that read, “C’mon Son.”

This isn’t to say that it would be okay to fly with your entire harvest, just that the TSA, though tasked with enforcing federal law, aren’t taking a hard line against traveling with pot.

“I’m delighted to hear that because I think it shows that TSA primarily is acting as it was intended when it was established, to protect all of us when we travel on the airlines and to thwart terrorists. It is not supposed to be an anti-drug agency,” said Keith Stroup, attorney and founder of the National Organization for the Reform of Marijuana Laws. “What nobody feels 100 percent comfortable with is it’s a grey zone you’re going through. It’s technically still illegal even though they aren’t enforcing it very strongly.”

Disclaimer: I don’t recommend flying with marijuana. It’s still against the law and you can still be arrested and charged. If you do, and you are, don’t call me or mention my name. :)

Nugget for your luggage?
Nugget for your luggage?


PA prison guards encouraged inmate assaults in exchange for food, coffee

Three correctional officers in Pennsylvania are facing criminal charges for organizing what they called the “Retard Olympics”, forcing inmates to do vile and degrading things in exchange for food and coffee. While the guards argue that the inmates willingly participated, their position of power negates the inmates’ consent. The “willingness” argument is akin to a family member or statutory rape suspect saying they didn’t commit a crime because their child-victim consented to sex. It’s disgusting, to say the least.

CNN reports the investigation began when surveillance video within the prison caught the guards man-handling an inmate. Once officials began to dig deeper, they found that same inmate had participated in fights in order to gain favor from the guards.

Prisoners would participate in the following acts on the promise that they would receive extra food and lounge time:

– Fights with other inmates

– Allowing guards to hit, kick them

– Snorting a line of seasoning from a Ramen noodle package

– Drinking a gallon of milk in a set time

– Being sprayed in the face with pepper spray

In most cases, the inmates allege, the guards didn’t even follow through on their “payments”.

Cases like this are cause for shock and alarm when they hit the press. But how often are they happening behind closed doors and razor wire that we don’t hear about?

The three guards in this case are on administrative leave while the investigation continues. How many other guards knew about the incidents and didn’t say anything? In a prison, word travels pretty easily but mouths shut when guards’ livelihoods are on the line. The blue “code” that keeps cops from snitching on one another in the community is just as prominent (if not more so) within the prison industrial complex.

You can get the whole CNN article here:

In case you missed it: FBI Informants allowed to break law 37464287646932564765 times…or something like that

What does it take to get away with drug trafficking, theft or even murder? It’s all in who you know. And if you are cozy with the FBI, you could get away with all of these things and then some.

In my giant pile of things “to blog about”, this story is gathering some dust. So, in case you missed it, USA Today reports:

The FBI gave its informants permission to break the law at least 5,658 times in a single year, according to newly disclosed documents that show just how often the nation’s top law enforcement agency enlists criminals to help it battle crime.

The U.S. Justice Department ordered the FBI to begin tracking crimes by its informants more than a decade ago, after the agency admitted that its agents had allowed Boston mobster James “Whitey” Bulger to operate a brutal crime ring in exchange for information about the Mafia. The FBI submits that tally to top Justice Department officials each year, but has never before made it public.

Agents authorized 15 crimes a day, on average, including everything from buying and selling illegal drugs to bribing government officials and plotting robberies. FBI officials have said in the past that permitting their informants — who are often criminals themselves — to break the law is an indispensable, if sometimes distasteful, part of investigating criminal organizations.

“It sounds like a lot, but you have to keep it in context,” said Shawn Henry, who supervised criminal investigations for the FBI until he retired last year. “This is not done in a vacuum. It’s not done randomly. It’s not taken lightly.”

USA TODAY obtained a copy of the FBI’s 2011 report under the Freedom of Information Act. The report does not spell out what types of crimes its agents authorized, or how serious they were. It also did not include any information about crimes the bureau’s sources were known to have committed without the government’s permission.

Crimes authorized by the FBI almost certainly make up a tiny fraction of the total number of offenses committed by informants for local, state and federal agencies each year. The FBI was responsible for only about 10% of the criminal cases prosecuted in federal court in 2011, and federal prosecutions are, in turn, vastly outnumbered by criminal cases filed by state and local authorities, who often rely on their own networks of sources.

“The million-dollar question is: How much crime is the government tolerating from its informants?” said Alexandra Natapoff, a professor at Loyola Law School Los Angeles who has studied such issues. “I’m sure that if we really knew that number, we would all be shocked.”

Continue reading here.

Just my thoughts and analysis of the justice issues of the day…