Crossland I: Back to the Default

Radley Balko posts about a terribly depressing case, made even worse by the opinion of an appellate court that acknowledges how wrong it was and yet demurs.  Terrance Crossland was mowing his lawn, smoking a cigarette and minding his own business, a rather unremarkable beginning to a day that will haunt him forever. 


Last April, Crossland and his cousin were approached by two D.C. Metro officers on patrol “to gather information about a rash of recent shootings and drug sales in the area.” Crossland was mowing his grass while smoking a cigarette. The police acknowledge that neither Crossland nor is cousin were doing anything unlawful.  The two men were told to turn around, put their hands against a fence, and submit to a search. By both accounts, Crossland initially complied, then said, “Fuck this shit. I’m tired of this.”

Police say Crossland then elbowed one officer in the head, at which point he was punched, taken to the ground, kicked several times, and pepper sprayed.

Crossland says otherwise.  Witnesses say otherwise.  But there was no video, so the trial judge, Florence Pan, threw the default switch and found the cops credible and the rest of the world liars.  It’s not just that all ties go to the cops (they do), but that cowardly judges will not take the heat of finding that a cop lied on the stand.  

Even if they find against the cop in the tiniest manner, they will jump hurdles to explain how they are the most wonderful heroes in the world. They won’t risk a nasty word from the police union or the prosecutor’s office, always organized, focused and ready with a threat, in order to side with some powerless nobody. That could be bad for their career, or at least make their life momentarily uncomfortable. Why risk it?

Judge Pan’s effort to spin this one was particularly pathetic. From  Crossland v. U.S. :



The court specifically credited Officer Baldwin’s testimony, noting that it was corroborated by the testimony of Officer Castan. The court explained that it did not credit appellant’s testimony or that of the witnesses he called because “[a]lmost all of them had a bias” and because it was “not credible . . . that the police were out that day, randomly beating people up for no reason” and that even if they were doing that, it made no sense “that they would beat up [appellant], as opposed to Mr. Wo[]mack, whom they had a history with” and had arrested the week before.

The rationale is utterly empty, as if it wasn’t worth her time to think of a half decent way to endorse the lying.  It’s unlikely as Pan mailed in this pathetic excuse for a strawman that she foresaw Alan Gura finding the decision and handing it off to Radley, who would make sure that her vacuous effort did not go unnoticed.

As the appellate court made clear, there was no question whatsoever, none, that the officers engaged in an outrageous violation of Crossland’s constitutional rights when, for no conceivable reason, did what cops are wont to do, and tossed him because they were cops and they could. 

Pan’s lame strawman, that the cops “were out that day, randomly beating people up for no reason,” might reflect that Judge Pan is the most naive, out of touch, clueless judge in the District of Columbia, but for the fact that it’s impossible to take this seriously.  The reason why they beat Crossland was clear and obvious, he refused to bow to their authority. When cops toss a guy for no reason, and the guy responds with “Fuck this shit. I’m tired of this,” what else are cops to do?  They must teach him a lesson, give him a good tuning up to remind him that they own the streets.  You can’t allow people who have had enough of their constitutional rights being violated get away with it. The next thing you know, they’ll start hanging up on those police union charity solicitations.

Judge Pan knows this. Children know this.  Everyone knows this. She’s not stupid. She’s just not going out on a limb for a defendant when she doesn’t have to. 

And what of Crossland’s “biased” witnesses, because one cop lying and another swearing to it could never happen? This is the best it gets for defendants, to have any witnesses at all.  The funny thing about police confrontations is that they rarely happen in front of the Pope.  Most of the time, there’s no one watching, no one to say that the defendant didn’t do what they cops conveniently say he did.  Even then there is a witness or two, they are scared off by the threat of the cops paying them a visit to explain to them how they won’t take kindly to their calling them liars.

The defense is required to disclose the identities of its witnesses in advance of calling them to testify.  Even if only the day before, they are pretty well assured of getting a visit from police, often the very cops about whom they will testify as those are the law enforcement officers at the prosecutor’s disposal at that moment, who are charged with investigating the witness and “interviewing” them.  Mind you, the witness is under no duty to speak with the cops, but the cops don’t necessarily ask nicely, and witnesses are usually intimidated by the shield. So they have a nice chat.

The witness is informed that things will go poorly for them in the future if they take the witness stand and testify contrary to the police.  And poorly for their children. And their spouse. They will learn that the police are not kind to witnesses who make them look bad.  And the witness, who may love his children more than the defendant, often decides that he can’t remember anything.  Sometimes they take a vacation the night before their testimony.  Sometimes they just don’t show.

But Crossland’s witnesses did show. His witnesses testified. His witnesses did what they had to do, threats notwithstanding.  Likely, their desire to tell the truth was stronger than the fear of retribution, and they took the chance of invoking the cops’ ire and came to court anyway. Only to have Judge Pan dismiss them as biased. After all, they must be biased or they would have been scared off, like all good, honest witnesses.

For decades, credibility determinations like Judge Pan’s were routine.  This was before there were thousands of videos proving conclusively that cops sometimes lie, sometimes beat people for fun, sometimes do exactly what Crossland and his witnesses testified happened here.  On the flip side, they show that cops inclined to be so contemptuous of constitutional rights as to toss a person for nothing are similarly inclined to beat the crap out them when they fail to obey.

And Judge Pan, honoring the historic role of judge when confronted with a dispute between police and a citizen, disgraced herself by resort to the default with the least effort and the greatest degree banality possible.  But this is only the first part of the system’s failure.  More to come.

A Prison Guard Gets What He Deserves

Certain jobs tend to offer greater opportunity to slide into the toilet than others.  Criminal defense lawyer, for one.  Cops as well.  But few offer such a rife opportunity as prison guard, with so few people watching over his shoulder, and so few in a position to complain without a very real likelihood of retribution.  Really bad and painful retribution.  Matthew Amos is one of the few who got caught. 

From the Denver Post :




This is where $17,200 in easy money landed him.


Amos’ conviction for smuggling tobacco into a federal prison in Florence provides a revealing glimpse into the jailhouse black market — where a single bag of tobacco can go for $1,000 and the key players in funneling contraband to inmates are often the very people hired to watch over them.


Granted, smuggling tobacco, perfectly lawful in prison until it was banned in 2004, when nannies said it might damage the health of prisoners (because being in prison wasn’t damaging enough), doesn’t smack of heinousness.  It’s not crack or heroin, guns or shivs.  It’s just tobacco.  But in prison, that’s contraband.

Amos did what too many of us do. He befriended someone on the wrong side of the law, and slid into the morass of easy money because he could. 



Amos would sneak in bags of tobacco to give to the inmate, who would handle distribution to customers around the prison, according to a recounting of the case in Amos’ plea agreement. The inmate’s girlfriend would collect money from the customers’ families and then put a chunk of it into a bank account for Amos. Amos was sent a debit card tied to that account, according to the plea agreement. His take was $400 per bag.

It’s unclear exactly what’s meant by a “bag,” but even if it’s a really big bag, that’s decent money.  And it’s still just tobacco.  And it’s still contraband.  And it’s unclear how the deal went south, but apparently no one told Amos that there was one huge gap in the scheme.  His inmate buddy would rat him out without the slightest thought if it was in his best interest to do so.  Prisoners are funny that way. They never seem to love anyone as much as one thinks. And down came Amos at the hands of his partner.

Amos stood before Denver Senior Judge John Kane for sentencing, and no doubt realized the $400 per bag really wasn’t as good a deal as he originally thought.




On Friday he stood before a federal judge in Denver pleading for his life.


If he went to prison, Amos told the judge, he would have to pay fellow inmates for protection. Or he would be “whored out.” Or worse.


It’s what happens to former prison guards who end up behind bars.


“There’s no way I would be able to stay out on that yard without providing some kind of service,” Amos said, voice unsteady. “To be asked to go into that system will be asking me to be something I don’t want to be.”


It’s certainly true that a prison guard, like a cop, or a child molester for that matter, isn’t treated well by the other inmates.  Neither are young inmates, especially those who might be deemed attractive to others who are lonely.  Or weak and easily taken advantage of.  In fact, there are a lot of different types of people who don’t do well in prison.  We all know this, but it doesn’t seem to have been important enough to those in charge to fix. 

The story fails to speak to what sort of fellow Amos was as a prison guard.  Was his reputation among prisoners good?  Was he considered fair or abusive?  That he was engaged in a scheme motivated by personal greed doesn’t speak well of him, on the one hand, but doesn’t make him violent or venal on the other.  Either way, prison guards aren’t likely to be well treated by their former charges, no matter what.  And Matthew Amos said so at sentence.


Had the sentencing judge been any other federal district court Senior Judge John Kane, it’s likely that cynicism would explode at this point.  But since Senior Judge Kane has demonstrated  over and  over that he’s above the need to use his authority to play Angel of Vengeance, and rather does as much as the law allows to sincerely apply the purposes of sentencing to each individual, Amos was very lucky.




Senior U.S. District Court Judge John Kane took sympathy on Amos, saying he wanted Amos — a military veteran who served in Bosnia — to receive treatment and education instead of prison. He gave Amos five years of probation.


And Amos said he was sorry.


Sure, Amos wore a uniform when he committed his crimes, which tends to make judges cut one of two ways.  Either they slam the defendant, to “send a message” to others that misconduct by those to whom we give authority, and the responsibility to carry it out honestly.  Or cut them a break, because they were the good guys, aside from this aberrant behavior.



“I fully take responsibility for everything I’ve done,” he said. “I’m ashamed of not only what I’ve done but the image I’ve cast on everyone else.”


As if there was a choice.  They’re always ashamed afterward, though $400 per bag of tobacco was enough to soothe the same before.  Had it not been Judge Kane, chances are pretty good that he would have had a very unpleasant time in the yard.  Matthew Amos has much to be thankful for this year, and he wasn’t a very good boy.

Even a prison guard deserves real consideration at sentence, as does every defendant.  It’s not wrong that Matthew Amos got 5 years probation.  It’s only wrong that every federal judge doesn’t give the same meaningful consideration to every defendant before him for sentencing.

7 Inches

There’s no shortage of incredible stories about wrongs done, whether unusual or sadly commonplace.  What there is, however, is a serious shortage of reliable stories, stories that make sense.  The reporting, too often, is just awful, leaving us with either a gross misimpression of what happened or, most of the time, just confused.

Radley Balko, who does a great job ferreting out stories of abuse and misconduct,  twitted about a  bizarre forfeiture Holly Springs, North Carolina.




When Gaybbrell Shereise Cofield pleaded guilty last year to selling crack cocaine, he agreed to let the government take his grandmother’s home as well as property that has been in the family for generations.


But Ernestine Ward Cofield says her grandson was in no position to forfeit her property to the government and is fighting the move in court. Cofield says that until three federal marshals turned up on her front porch in August, she had no idea that she was the target of a federal law that allows the government to seize the property and assets of drug dealers.


That makes no sense at all.  A defendant can’t agree to forfeit something he doesn’t own. To the extent he did, it would be meaningless.  Where’s the fight?

Later in the story, it takes a twist:




In March, Holly Springs police Det. Dan Gledhill delivered a letter to Ernestine Cofield’s home on Sand Dune Way saying that a police informant had made two undercover drug purchases on Jan. 7 and Feb. 3 “from the property that you own on the dirt path that runs between Blalock Street and Third Street,” the location of the address listed on Gaybbrell Cofield’s earlier arrest warrants.


In the letter, Gledhill told Ernestine Cofield that repeated drug activity on her property could result in forfeiture under federal law. She said she did not respond to the letter because the dirt path is two doors down from her homes on Blalock Street.


“I didn’t respond because I don’t own that property,” she said.


So now it’s not the defendant who has done the dirty deed, but a second, weird attempt that facially bears no connection to the grandmother who, the story claims, is the victim of this government overreaching.  But then another twist.




In his federal court petition, her attorney, Spurgeon Fields III, claimed federal marshals told Cofield she could not challenge the government’s claim. Nor would they allow one of her daughters in her home at the time to listen to what they were telling her, Fields said in the petition.


Fields also claimed that the marshals told Ernestine Cofield that if she did not sign the forfeiture papers, she could be “taken downtown” and that it could cost her grandson 65 years in prison instead of 22. Cofield signed.


So what’s this story about?  Is it about a defendant who, in exchange for a good deal, agreed to forfeit property he didn’t own?  Is it about a government that claimed one property and then took another?  Is it about a government that coerced and manipulated an old women into signing away her property because she was told she had no choice, or that it would cost her grandson a life in prison?

And where was the grandson’s lawyer in all this?  Even assuming the oddly named young man had CJA counsel, was his name a secret so that grandma couldn’t call him and find out what the heck was going on?

It made no sense to me, so I let Radley know.   His understanding of the story was that the feds took grandma’s house because of her failure to prevent Gaybbrell’s drug dealing on her property. That’s likely the underlying legal rationale for the seizure, but it’s hardly the story reported.

The point of this rather long-winded explanation is that commentary depends upon the accuracy and thoughtfulness of reporting.  Forfeiture abuse, for example, is an issue that’s been of grave concern, as one of the most abused mechanisms by government to impoverish defendants, strip them of their ability to fight, destroy lives in a way that’s at best tangentially related to the claimed wrong and do so with essentially no opportunity to dispute it, given the absurdly low burden of proof, lack of meaningful due process (because it’s pigeonholed as civil rather than criminal, and in rem rather than in personam) and, usually, timing (in that it’s pursued contemporaneously with a criminal prosecution, and admissions in the civil forfeiture case could be devastating to the defense of the criminal case).

And maybe this story is about a monumentally horrific case of forfeiture abuse. I just can’t tell.

People are kind enough to send me links to stories all the time, usually from the hinterlands (see a New Yorker’s view of the world) and some rinky-dink newspaper.  They stories, more often than not, are atrocious.  They are long on rhetorical conclusion, and devoid of meaningful detail.  I can’t tell if there’s a terrible wrong, a meaningful point, or just the impression of some kid who took a journalism class in night school who hasn’t got the slightest clue about the law, the cops or the courts.  Sorry, but without the background information, I can’t just take a reporter’s conclusion for granted.

Having spent a decent amount of time talking with reporters of varying skill, and knowing a few of them pretty well, the complaint I hear back is that they only had so much room.  They get 500 words, or maybe 6 ‘graphs, or sometimes 7 inches.  They can only squeeze in so much.

Tough nuggies. Granted real estate in a newspaper is valuable, and if they fill it with substance, there won’t be any room for the money-makers, the advertisements, that pay their salaries.  I get the economics.  What I don’t get, and can’t accept, so easily is that reporters whose grasp of legal issues is usually tenuous at best, and facile at worst, can’t be bothered to report the facts and instead think their lay opinions are sufficient to constitute reportage of news. 

Serious stuff happens, and needs to be told.  No doubt every reporter thinks they know everything there is to no know about every subject about which they report.  No doubt your opinions on matters far afield are fascinating.  Stop complaining that 7 inches is too short.  It’s not the length, but how you use it. If you can’t manage to get the facts into your 7 inches, then it’s just waste space.  And 7 inches is terrible thing to waste.

Book Review: Targets of Opportunity

When I read Jeffrey Stephens’ first book, Targets of Deception, the birth of the Jordan Sanders series, I enjoyed it immensely.  It was a great book, but there was another reason.  Jeff did what many of us can only dream of doing, writing a novel that others want to read.  We dream of being the next Turow, the next Grisham.  Stephens was doing it.

That’s no longer the case. Jeff Stephens is no longer trying, but he has accomplished it with his latest book, Targets of Opportunity.  The plot is thicker, the characters more real, the story more captivating. 

Stephens’ hero, Jordan Sandor, is back in the CIA fold, pushed into the morass of terrorist intrigue where Jeff connects dots between the sovereigns we forget because of myopic focus on the enemy in front of us and their use and abuse by the enemies lurking in the background.  The story goes from North Korea to the mideast to Venezuela, but most of the time is spent in the Caribbean, especially one of its most magnificent islands, St. Barths.

Jeff’s descriptions of St. Barthélemy, from the gut wrenching drop when flying in to the restaurants in the harbor of Gustavia, bring back a rush of memories.  There’s no doubt that he had to do some heavy research to nail it down so perfectly, and any excuse to hang out in St. Barths works for me.  Most amazingly, Jeff was able to convincingly create a French hero, Lt. Vauchon, who not only demonstrated intelligence and boldness, but didn’t surrender at the first opportunity.  It’s not easy.

While the story can be read as a thrill a minute spy novel, as Jeff develops story lines in short chapters that shift from one side of the planet to another to provide the sense of a real time tale of intrigue happening by different players, only one of whom has the full vision of the scheme, there is still a lawyer’s view embedded in the book.  Sandor, for all the attributes that makes a spy worthy of admiration, still shows his humanity by doing everything possible to avoid killing whenever possible. 

When others on his team want to put the bad guys down, Sandor’s sense of humanity comes out, that no one need be harmed except to the extent necessary to protect someone or save the nation.  There’s no joy in senseless killing, even of the enemy, those who would never have given the same “courtesy” to us. 

At the same time, Jeff takes on the simplistic bureaucracy of government, the pencil pushers who try to dictate the rules by which others should play.  Jeff is no fan of grocery clerks with lists and platitudes, who have never put their butts on the line to accomplish a necessary task. 

One of the most remarkable aspects of this Sandor novel is that there was no need to resort to a gratuitous sex scene, as the story itself was more than enough to keep the reader turning page after page.  While Sandor has his moments with women in the book, it’s a quick cut to the end and he’s back to work.  If you want romance, go elsewhere.  This book is all about the intrigue, and the absence of any sticky sheets is deeply appreciated.

Jeffrey Stephens went from Manhattan solo practitioner to Greenwich spy novelist, and from lawyer who aspired to being a writer to a great writer.  I couldn’t be happier for him, and enjoyed this second Sandor novel immensely.  For those of us who spend most of our time reading opinions that would ruin a snooze for a narcoleptic, not to mention barely make any sense at all, Jeff’s stories are a pleasure and just plain fun to read.  I can’t wait for the next book in the series.

Newt’s Wrong, But Not As Wrong As He Seems

One branch of government has the guns.  Another has the purse.  And another has nothing but trust, which is why it’s the Least Dangerous Branch.  That also makes it the easiest to bully, and Newt Gingrich’s career, since he held the job of minority whip in Congress, was built on being a bully.  He’s good at it.

And that doesn’t make him wrong.  From the WSJ Law Blog :

–Fox News anchor Megyn Kelly began with Newt Gingrich.


Kelly: You have proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases, you advocate impeaching judges or abolishing courts altogether. Two conservative former attorneys general have criticized your plan, saying it alters the checks and balances of the three branches of government. And they used words like “dangerous,” “outrageous,” and “totally irresponsible.” Are they wrong?


Gingrich: Well, the first half is right. It alters the balance, because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.


(APPLAUSE)


There’s an entire paper at newt.org — I’ve been working on this project since 2002, when the Ninth Circuit Court said that “one nation under God” is unconstitutional in the Pledge of Allegiance. And I decided, if you had judges who were so radically anti-American that they thought “one nation under God” was wrong, they shouldn’t be on the court. Now, we have…


(APPLAUSE)


I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.


We have a balance of three branches. We do not have a judicial dictatorship in this country. And that’s what the Federalist papers promised us. And I would — just like Jefferson, Jackson, Lincoln and FDR — I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.


(APPLAUSE)


Kelly: These are conservative former attorneys generals who have criticized the plan, as I say, dangerous, ridiculous, outrageous, totally irresponsible.


Gingrich: Sure. I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? Eighteen out of 35 were abolished.


Kelly: Something that was highly criticized.


Gingrich: Not by anybody in power in 1802.


(LAUGHTER)


(APPLAUSE)


Gingrich: Jefferson himself was asked, is the Supreme Court supreme? And he said, that is absurd. That would be an oligarchy. Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country. That would be the end of our freedom. So I would suggest to you, actually as a historian, I may understand this better than lawyers. And as lawyers those two attorneys general are behaving exactly like law schools, which have overly empowered lawyers to think that they can dictate to the rest of us.


It sounds insane at first blush, but it’s not.  It’s not quite right, but it’s not insane either.  The “checks and balances” of the other branches of government over the judiciary include the nomination of judges by the President, the consent of the Senate to judicial appointment, and the funding of the court system by Congress.  The first two suggest that the other branches pick wisely, but life tenure tends to change a person’s way of thinking. 

Certainly impeachment for bad behavior is a limit on what judges might do, but bad behavior doesn’t usually cover decisions that others think are absolutely awful.  On the other hand, the entire point of life tenure is to make sure that judges are free to make decisions based on law, without fear of ramifications for political or transitory concerns.  They can’t be removed because they anger someone in another branch with their decision, freeing them to be honest rather than appeasing.  Similarly, there’s no revote, after a while, to decide whether they’re still as excellent a choice as they appeared at first.

But is that it?  Put aside the fact that Activist Judge is an epithet tossed about with wild political abandon, and consider that it’s certainly conceivable that the least dangerous branch could, in some way that pretty much everyone agrees, be activist. Let’s say a circuit decided that they just didn’t like the Seventh Amendment any more and decided to cross it off the Bill of Rights.  What to do?

The phrase “activist judges” has become a conservative mantra, used to confuse the ignorant into believing that the judiciary’s job is to make popular decisions.  Others realize that courts “make law” all the time, filling in the blanks that legislative bodies leave behind, often intentionally so that they won’t bear the weight of their ill-conceived laws, or to provide meaning to words that are sufficiently or inherently vague that they provide inadequate guidance.   

Aside: For those who argue the “Constitution means what it says, no more, no less,” you’re neither going to grasp nor be persuaded here, so there’s no real point in my explaining this to your satisfaction.  However, I leave you with the words written by Charles Lutwidge Dodgson:

  “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

You aren’t likely to appreciate this quote either, but I like it, have the ability to include it, and so I do.

Had the founders intended the judicial branch to be wholly independent, they would have provided for the courts to fund themselves.  They were well aware that control of the purse strings was a death grip, that could strangle a co-equal branch of government. 

What preserves the integrity of the judicial branch is trust.  The courts have no money of their own. No standing army, the few peashooters of the gendarmes is hardly a match for a decent tactical missile, which could destroy a politically-named courthouse in a flash.  The words of judges matter only because we trust those words.  We believe that somebody has to be honest, to rise above politics and disagreement and give us a final answer that we can trust.

If that trust is lost, or squandered, then the duty of the other branches is to use it’s power to rein in, perhaps even eliminate, the out of control branch.  In this respect, Newt is absolutely correct, the judiciary is not above the other branches, immune from violations of its mandate.

Newt is wrong, however, to suggest that Americans are in favor of pulling the plug on the third branch of government every time a ruling rolls around that doesn’t get three cheers from Georgia.  If a president tried to seriously manhandle the judiciary every time there was a decision he didn’t like, it would be the executive at risk rather than the courts.  Americans may be dumb, but they’re not stupid. 

They know they need a legal system, even if they think the current one sucks and fails to reflect their sensibilities.  They may not have great trust in the judiciary’s judgment, but nobody is comfortable with the idea of the other two branches of government without a judiciary to smack  them.

Yet the Judicial Branch of government should never be so comfortable in its existence and power to believe that it lies wholly outside the control of the People or is above the power of the other branches.  Each branch should live in fear of the others.  Each should be constantly vigilant that if it fails to retain the trust of the American people, it’s mandate ceases to exist.  The Least Dangerous Branch is just as subject to checks and balances as its more dangerous brothers.  And that’s how it should always be.

Forget the details of Newt’s plans. They’re nuts. But at its core, his point is hardly as ridiculous as one might think.  And judges need to remember that the judiciary is just as strong, and fragile, as any other branch of government.



Read it all. Nathan(s) completed the first five sections thus far, with plenty more to go.  This may well prove to be the most exceptional thing ever created in the blawgosphere, and the one thing that will outlast all of us. 

It is truly an amazing piece of work. It’s well written, incredibly well-drawn, accurate, funny, and brutally accurate.  If you read nothing else, read this.