Carl Horn: A Judge Now Sees Shades of Gray

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

http://www.charlotteobserver.com/local/story/633187.html

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:

http://60733066.blogspot.com/2008/11/is-ted-stevens-convicted-felon-or-not.html

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.

Wow.

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.

ADDENDUM:

See this post at the Sentencing Law and Policy Blog:

http://sentencing.typepad.com/sentencing_law_and_policy/2009/04/official-ag-holder-statement-on-dojs-new-position-in-stevens-case.html

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.

MORE COMMENTS:

http://roomfordebate.blogs.nytimes.com/2009/04/01/when-prosecutors-step-over-the-line/

Maurice Clarett Blogs from Prison

First, apologies for not blogging more. There is always so much more to say than I have time and then I end up saying nothing. I had so much more "freedom" to write in prison :)

Second, I just read that Maurice Clarett is blogging from prison.

For the uninitiated, Clarett was a former football great -- albeit for only one year -- at Ohio State University, leading them to the national championship over Miami in 2002 before making some really bad choices that landed him in prison. You can read his bio here:

http://en.wikipedia.org/wiki/Maurice_Clarett

The ESPN article is here: http://sports.espn.go.com/ncf/news/story?id=3948006

His blog is here: http://mauriceclarett.wordpress.com/

His purpose is somewhat different than my purpose. For example, he says:

I have no interest in discussing prison’s day to day operations. That serves no
purpose in my life. I created this site for other reasons. There are too many
young men and women that need hope and inspiration.

He is focussing on keeping people out of prison. I was, and am, focussed on helping people who were already caught up in the federal justice system, rightly or wrongly.

He states:

To a large degree, prison doesn’t exist to me anymore. I’m mentally
removed, on certain levels.

That is a common coping mechanism I observed in prison and I am certainly not going to judge it, especially when he and others had so much more time than I did. However, I took a different psychological approach. I "coped" by treating my experience as an "adventure" and I made a point of observing and recording every little detail I could.

It is something of a paradox that I could insulate myself from the potentially destructive aspects of prison life by essentially immersing myself in it. I created distance through proximity. By staying in "the moment" and focussing on the feelings and immediate experience, one can forget the larger "context" and create a different more positive meaning for your life.

The result I hope is that I have integrated my prison experience into my larger life rather than compartmentalizing it away. It has the added advantage that I have been able to help many others navigate the emotions of preparing for prison, a journey almost all inmates have had to make without a map.