Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Sunday, April 26, 2009

Where is the Punch Line to this Joke?

Last week I received the following email from a Rabbit Hole reader with his own Rabbit Hole experience (some details have been editted to protect his privacy):

Hi Bill,

This is M. I have been following your blog since the beginning. I cannot express how helpful it has been. I read it regularly and it has been a source of encouragement and enlightenment for me.

I have a very similar story to yours. Professionally, I am in Information Technology (Corporate Director, Consultant, etc) and have been for over 20 years. While working with [company name withheld] as Director of Information Technology, I got caught-up in a corporate mess that started with the hostile takeover of the company and ended with me taking a plea deal. I got 5 months prison, 5 months home confinement, and 2 years probation. I have about 8 months probation left.

I thought I would be sent to a camp. I wasn't. I was sent to a Federal Detention Center. Not good. Being a detention center, it is run as a medium/maximum. Most inmates have very long sentences and it is an extremely controlled facility.

Right after prison, it was very difficult to find a job. I took a job at a retail store while on home confinement. Needless to say it was a humbling experience. After much difficulty, I ended up finding a job as a Director of Information Technology for another company. I never mentioned anything about the conviction, and I was never asked. Though I did not like not disclosing, I had to do what I had to do. Apparently, most employers do not do Federal Background checks. Everything was going phenomenal, I was right back where I left off. After about 6 months, probation decides they need to directly contact my employer to advise them of my conviction because I "posed a possible risk". So let me summarize:
  • I got a great job (should be the point of "rehabilitation" or "correction")
  • As a result, I have been paying $800 a month in restitution (benefits claimant)
  • I am current on all other financial responsibilities, despite all the obstacles (incarceration, house arrest, probation, etc). (Benefits general economy and US government since they are in the bailout business now)
  • I have 8 months left on my probation and have complied by all guidelines
Until today. Probation insisted on contacting my employer. They let me go. So now:
  • No restitution for the claimant
  • I will have to foreclose my house, hurting the general economy
  • Will not feasibly find a job until I am off supervision
  • I understand US probation has the responsibility to "protect it's citizens". But I was eligible for early termination (solves all the issues) except for the outstanding restitution, so probation would object to it. And now I cannot pay any restitution.
I am still waiting for the punch-line to this joke...

I am not completely sure why I am contacting you. I guess part of me feels like I can be a part of the message you are trying to get across. I have no idea what your plans are for the future. Obviously, you have a great business mind and you are a man of faith. I consider myself the same (though some may disagree, lol). Either way, thank you for your transparency and willingness to put yourself in the line-of-fire with your blog. Let me know if you have any ideas to put a good mind to use.



I have had some of my own bizarre experiences with the "tone-deafness" of the whole criminal justice system (although I don't really have any complaints about my experience with the US Probation Office in Charlotte... my POs have been great), nothing beats this although I have heard other stories similarly frustrating. Certainly in my case it helps to be self-employed with an internet-based business so I have avoided most of the collateral consequences of my felony status.

So exactly where is the punch line to this joke?

Tuesday, April 21, 2009

The Rabbit Hole Video

Last fall, I spoke at a seminar in Chicago in which I described my story as well as observations on life, law, and running a business on "auto-pilot". The 3-part video is below. Each segment is 31.5 minutes for a total of over 1.5 hours (and I still had more material... I just ran way out of time!).

How this came about is rather interesting.

Several years ago, I was told about a guy named Perry Marshall, who was supposed to be the guru for Google Adwords strategies. Google Adwords is an online advertising medium that allows you to display your ads alongside Google's regular (i.e. "organic") search results when certain keywords that you have bid on are searched. In March, 2006, I subscribed to Perry's email newsletter and purchased his e-book. (The following month, the prosecutor called my lawyer and said he was moving forward with the indictment.)

After I got out of prison and completed my home confinement in October 2007, I signed up for his Bobsled Run, 12-weeks of internet marketing training, including an intensive weekend coaching session at his home in Chicago where I got to meet him personally and discuss my business. At this time, I did not bring up my prison history.

Later the following July 11 (2008), I received an email that he broadcast to all his members:

Subject: "Marketing On Autopilot" - from dream to reality


Have you ever said to yourself...

" If only I could, just once, get to a point where my business runs on autopilot and my monthly income does not rely on what I do from one day to the next...

...I would be free to take my entire life in a whole, completely new direction!

if only..."

I so keenly remember those days.

The days of wishing... "If only..."

I was yearning, nearly salivating at the possibility of being liberated from day-to-day, week-to-week paycheck work, project work, nose-to-the-grindstone work - because a wider world was calling.

The story continues here: (link no longer works so I removed)

I was on vacation at the time (in Greece -- see my Santorini and Mykonos pics!) when I received it but wasn't due back for a couple weeks so I had time to think about a possible reply which I sent on Aug 4:

> Perry,
> I'm willing to bet you have never received a letter like this from one
> of your clients.
> I just returned from 3 weeks in Greece and Spain and you sent this out
> 2 days after I left. I saw it when I checked my email in Mykonos but
> waited to reply till now.
> You know my business.
> I already knew that I could take 3-week trips to Europe and my
> business would do just fine. Of course, I would check my email every
> day (I don't bring my laptop anymore... I either use the internet room
> in the hotel or a local internet café) and respond to any
> "emergencies" but that was about all it took.
> However, the ultimate test was when I went 3 months without email...
> indeed 3 months without the internet or even a computer... courtesy of the
> American taxpayer in federal prison!
> I have never discussed this with you but March 30-June 28, 2007 I
> spent in the federal prison camp in Pensacola. Long story but
> basically I was a little too aggressive in some of my data collections
> methods and got the attention of the FBI (!) and next thing I know I'm
> being indicted and sent to prison (not to mention the $700K in legal fees

> and $150K in restitution.. ouch!).
> I prepared for my little vacation as best I could and, you know what,
> my business ran just fine without me. I made just as much money in
> prison as I did OUT of prison. Plus my personal expenses were a lot
> less! :) I had no access to the internet whatsoever for 3 months....
> I had my customer support girl in Florida answering phone calls and
> emails... that's it. I was able to talk to her occasionally to find
> out how my sales were doing but I really couldn't do much to run my business.
> My wife continued to live her life (minus me of course) just as she
> did before. I did not suffer from any of the collateral consequences
> that many ex-inmates suffer from (such as difficulty finding
> employment... I decided not to fire myself).
> And I also found a new calling... writing about life in prison and our
> bizarre federal legal system.
> I started a blog ( or a
> week before I entered prison (60733-066 was my inmate id #). I spent
> about $5K in Google ads during my 3 months in prison to drive traffic.
> I would write my observations on paper and send them to my wife who
> would then enter them to the blog. Once I got out, I was able to
> continue it myself. I think you might find it rather interesting
> reading. Of course you have to start at the end to start at the
> beginning since the posts are in reverse chronological order.
> I don't currently make any money off the site, but I do get lots of
> interesting emails from other people caught up in the federal legal
> system and facing prison.
> Bill

Now, I must admit in hindsight that my email possibly comes across a little more glib than I intended, almost implying that I somehow "beat" the system, which certainly was not the case, even though my business model did allow me to avoid many of the collateral consequences (and I did get some pleasure out of knowing that my business was making more in a month than the COs overseeing me probably made in a year). In any case, knowing Perry as I did, I thought he might find it interesting.

Little did I know HOW interesting!

This was his reply a week or so later:


Thanks for your patience, I was outta town. This is REALLY fascinating.

Well I can think of a few things to do with this.

First, there's a lot of soulish stuff in here. I dived into some of your older blogs, found stuff about Jesus and why was this man born blind and why do good things happen to bad people... really interesting.

Second, I've got a gladiator club meeting in Chicago Sept 27-28 and it's an Autoresponder bootcamp. People will come home having had professional copywriters help them write a bunch of AR's and they'll go home with everything uploaded. You wanna come tell your story? I'd love to say "Mr. X is going to tell his story of doing time in prison while his business ran on autopilot" or something like that.

Third, yes you could turn this into a product if you wanted to. I suspect it would be small change compared to what you're normally used to but it could be fun to do if you want. Could also be a really interesting late night pajama jam teleseminar.

Wow, amazing story here....


And that is how it all happened.

Perry is a Christian and generally likes to give a "spiritual" talk at the beginning of the Sunday session of his weekend seminars. Based on what he read in my blog, he thought I would be able to integrate business, law, and spirituality into a talk his members would like.

I thought about it for a while, swallowed hard, and said ok.

At the end of August, Perry sent out the following email to promote my talk at the seminar (his email list has about 100,000 names on it):

Subject: The most EXTREME proof, EVER, of 'Marketing on Autopilot'

Just a few weeks ago, on August 4, I got this MOST UNUSUAL email from one of my Gladiator Club members, Bill Bailey:

I'm willing to bet you have never received a letter like this from one of your clients.

I already knew that I could take 3-week trips to Europe and my business would do just fine. Of course, I would check my email every day (I don't bring my laptop anymore... I either use the internet room in the hotel or a local internet caf?) and respond to any "emergencies" but that was about all it took.

However, the ultimate test was when I went 3 months without email... indeed 3 months without the internet or even a computer... courtesy of the American taxpayer in federal prison!

Read the rest of Bill's story - and see his mug shot (literally)and get the link to Bill's Prison Blog - here.

Enjoy this story!

Perry Marshall

(NOTE: Perry's original link to the "rest of the story" no longer works but I found an archived copy of the page on another blog and that is what the link goes to. READ IT... it's pretty good and explains why he invited me to speak at his seminar. )

Well, after that promo, there was no way to back out!

It was a very tricky talk to prepare for but it seemed to be well-received. Although I was a college professor in my former life and have some experience talking in front of groups, this was a very different kind of talk.... much more personal. There were probably 80 or so people in attendance.

Perry videotaped the seminar including my talk. I was finally able to obtain a copy last week. Due to limitations with Blogger, I had to split the video into 3 parts and reduce the size about 1/3 to 320x240 (from 426x320). I also editted the video to overlay some of the quotes and pictures that were displayed on a screen in the room but do not appear in the original video.

If you would like a complete copy of the uneditted, original (i.e. higher quality) QuickTime (.mov) video, right click here and select Save Target As... to download to your computer. This file is 542MB so it may take a while depending on your connection speed.

In any case, let me know what you think. For those of you who have read my blog, much of this will be familiar (even though some material is new) but you may enjoy actually hearing me tell it rather than simply read it.

Again, the talk is just over 1.5 hours long (!) with each video just over 30 minutes.

Sunday, April 12, 2009

More fall-out from the Stevens Case

While I remain skeptical in the long-run, there appears to be some public re-thinking of the whole subject of prosecutorial abuse, especially in the federal system, basically echoing my remarks in the last couple of posts on the subjects.

Check out the following post on The Sentencing Blog:

Should we blame bad apples or a bad culture for federal prosecutors gone wild?

It references the following quote from a Wall Street Journal article:
Todd Foster, a former federal prosecutor in Tampa and Houston and a former Federal Bureau of Investigation agent, questions whether the case would have been re-examined as closely if it hadn't involved a U.S. senator. "My question is what happens to the rest of us?" he asked. "What happens when the person doesn't have the resources Sen. Stevens had? What happens to those cases that don't reach the attorney general?"

I'll tell you what happens. Go directly to jail. Do not collect $200. Have a nice day.

Politico further amplifies this theme in Federal Judges are Fed-Up. Please read it!

"Judges that have been on the bench that long rely on the prosecutors, they rely on the government attorneys, because they have to,” said the longtime litigator, who asked not be named. “When their confidence is shaken because of something they’ve seen, suddenly it dawns on them that they’ve been presiding over all these cases all these years and this might be the tip of the iceberg, maybe the wool has been pulled over their eyes. It’s disconcerting."

I hope so.

Part of the problem is that so many judges are themselves former prosecutors.

The reason I am skeptical about change in the long-run is that 1) politically speaking, it is difficult to run a campaign appearing "soft" on crime so there is never any political pressure for reform and 2) the general public is psychologically resistant to the idea that prosecutors might be the "bad" guys because if the people in charge of protecting the public are themselves corrupt, then who protects us from the protectors.

Short of nominating judges who view prosecutors skeptically, I am afraid this will be a fad that passes.

Tuesday, April 7, 2009

Loss of Faith

In an article in today's NY Times, "Judge Orders Investigation of Stevens Prosecutors," former Senator Ted Stevens is quoted:
“Until recently, my faith in the criminal justice system, particularly the judicial system, was unwavering,” he said. “But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed.”

Welcome to the club Mr. Stevens!

There is no doubt that the general public has "unwavering" support for the criminal justice system. Police officers, FBI agents, atorrneys general, and prosecutors are all assumed to be the "good guys" -- there is an overwhelming presumption in their favor.

This is further burnished by the fact that they usually have tremendous resource advantages over the typically hapless defendant, including a press release department that presents the government's point of view while the defendant typically is advised to keep his mouth shut. Thus the public for months or years only hears the charges against someone and the "truth" only comes out in a carefully scripted charade called a trial, in which

1. the jury already assumes that the person sitting in the defendant's chair must have done something wrong (otherwise they wouldn't be in trouble!).
2. the govt gets to present their case first (since, the theory goes, the burden is on them to prove their case)
3. the govt gets to present their case LAST in closing, although in theory this is only to rebut any defense arguments
4. the jury is not allowed to know what sentence a defendant is facing if convicted (this is important because "reasonable doubt" means different things depending on the consequences of being wrong if you are a juror). Most federal juries are shocked to find out the severity of the sentence given to defendants they have convicted and oftentimes simply give the govt the benefit of the doubt in complicated cases or convict on what they believe are lesser counts only to find out the defendant can still be sentenced as if guilty of the other counts (this is know as "acquitted conduct" enhancements).

The pollyannish view of our criminal justice system that so many share is to some degree necessary from a social point of view. I get that. A police state system that does not have the confidence of the majority of its citizens cannot function effectively. That is why what is happening in the Stevens case is so important.

I am convinced that most of what the criminal justice system (at least at the federal level) does is create the perception among the citizens that they are being protected from "bad guys." It doesn't actually matter whether the individuals prosecuted are actually "bad" or even guilty for that matter. What matters is that people believe that the government is doing something. The primary goal of most federal prosecutions is general deterrance; that is, successfully prosecute someone -- anyone -- for some alleged bad actions and then use the publicity from that prosecution to deter other bad acts.

A truly innocent individual, once convicted, has virtually no chance being believed because no one has the time or interest to give his case an independent review to determine if the jury was actually right.... we just assume the system works and leave it at that.

Unfortunately, the lesson that Mr. Stevens has learned -- this journey into the Rabbit Hole -- is a lesson that tens, if not hundreds, of thousands of citizens have already learned about the justice system. They, however, lacked the resources to fight and expose the improper conduct. Furthermore, if they do attempt to fight it, they will oftentimes find themselves punished even more.

There was significant prosecutorial misconduct in my case which I wanted to challenge. However, the consequences of failing in that challenge would have been disastrous so I made the only rational decision I could and fell on my sword so to speak in order to minimize the potential damage. I am still reluctant to talk about it because I am still on supervised release and fear possible retaliation. However, one day I will talk about it.

The larger story however is that THIS HAPPENS TO DEFENDANTS EVERY DAY and no one every knows about it. They take the plea deal, accept their sentence, the govt issues their self-serving press releases about how they are once again ever-vigilant in their prosecution of dangerous or fraudulent criminals and that this or that prosecution "serves as an example", yada, yada, yada..... And the press and public just eats it up.

Anyone who suggests that what happened in the Stevens case was the exception is a naive fool. I believe it is routine and widespread; it is just never caught because there is no one there to expose it.

Wednesday, April 1, 2009

Carl Horn: A Judge Now Sees Shades of Gray

Nice article in yesterday's Charlotte Observer about Carl Horn, outgoing federal magistrate judge:

It notes:

In a 2003 article for a legal journal, for example, he bemoaned the “heavy-handed exercise of prosecutorial power” and described some prosecutors as “arrogant bullies.”

(The full article can be found here and is well worth reading.)

I quoted him from this article in an earlier post (Telling Secrets) and will repeat it here:

While judges and an increasing number of lawyers realize we have a serious imbalance in our federal criminal system, most of the public still does not. In
fact, the most often recurring comment I hear from friends or those who learn what I do for a living is some version of "Lock 'em up and throw away the key." Without putting the speaker down, my usual response begins something like, "You know, after over 15 years as a prosecutor and judge, I don't feel that way at all." Many constructive conversations have followed.

Take every opportunity to "spread the word." In addition to one-on-one communications, consider writing an opinion piece for your local paper or for your state and/or local bar publications. Write succinct letters to the editor that tell, as Paul Harvey would say, "the rest of the story" when related news is reported or opinion expressed. Accept, or even seek, opportunities to speak to civic, church, and other local clubs and groups. Appear on local television programs when invited. Little by little we must spread the word to the thinking and voting public - who, incidentally, also serve on our juries - if meaningful reform is to be achieved.

I appreciate his personal growth because to some degree it mirrors mine. In the Charlotte Observer article I linked to above, it says:

he was a Reagan Republican backed by the late Sen. Jesse Helms' machine. Today he's a registered independent with a pragmatic philosophy he describes as “more eclectic.”
Horn stated:
I remember my father saying the older he got, the grayer things are,” says Horn,
57. “I've had a similar experience. … There's an awful lot of the public policy
world that's gray.

I wish there were more federal judges like him.

Charges Against Stevens Dropped

Last November in the following post:

I mentioned that there was significant prosecutorial misconduct in the case of Ted Stevens, the 85-year long time Sentator from Alaska who lost his bid for re-election last Nov in light of his conviction for lying on federal disclosure forms.

I expressed hope that he would win his appeal. As it turns out, it didn't even make it that far.

Today's NY Times article,

In a stunning development, Justice Department lawyers told a federal court that they had discovered a new instance of prosecutorial misconduct in the case and asked that the convictions be voided. There would be no new trial in the case.

Now some may say, "See the system works. Mr. Stevens has been exonerated."

But think about it. Mr Stevens, a distinguished Senator of 40 years (longest serving Republican in history), had his life's work and reputation ruined by a misguided prosecution. He has endured an invasive and embarrassing criminal prosecution, the threat of imprisonment, and millions of dollars in legal expenses (which he does not recover) for conduct that was not illegal.

(Some may say that his conduct WAS illegal but the prosecution just bungled the case and he got off on a technicality but as I read the article, the prosecution willfully distorted the testimony of the key witness who had in earlier interviews provided exculpatory testimony that indicated that Mr Stevens did not know what the prosecution alleged he did. I think he was completely innocent from the outset and the prosecution knew it.)

When you are the subject of a federal investigation and subsequent prosecution, you have already lost. It doesn't matter whether you are acquitted or not -- you have lost. There is no such thing as "winning" a federal case.... you either lose big (conviction and prison) or lose small (acquittal but bankruptcy and loss of reputation).

Fortunately, while small consolation to Mr. Stevens, "it appeared that the prosecutors who tried Mr. Stevens on ethics charges would themselves now face ethics charges."

Hmmm..... we'll see.


See this post at the Sentencing Law and Policy Blog:

My real-world translation [of the Attorney General's official statement]: "Though I have concluded we secured a constitutionally tainted conviction in the course of ruining Senator Stevens' career and legacy, I won't admit that any lawyers did anything wrong and I hope that by dropping this whole matter nobody will consider what this case reveals about our federal criminal justice system."

Though I am not a tort law or Bivens specialist, I cannot help but think about whether Senator Stevens might have a viable civil law claim for damages as a result of all the economic harm he has suffered as a result of his constitutionally tainted prosecution and conviction. At the very least, I would hope the feds might pick up some of his post-conviction legal bills.