Million-Dollar Legal Advice

The more I continue to Google... uh, research... issues related to this blog, the more I find there are professionals out there who have already expressed my views eloquently. Usually they are federal defense lawyers (who, oftentimes, used to be federal prosecutors!).

I recently found a new site -- http://www.fightthefeds.com/ -- operated by Mark Bennett, a federal defense lawyer in Houston.

He offers his "million-dollar legal advice" :

DON'T TALK TO FEDERAL AGENTS!

Like most people in America, I used to believe that cops (federal or local) were "the good guys." I also used to believe "if you're innocent, you have nothing to hide."

The Rabbit Hole cured me of these naive misconceptions.

Unfortunately, if you are reading this, it's probably too late to help. The people who need to read this don't realize they need to read this.

This is the key excerpt:

When the police want to talk to you, it's not for your own good. They're not looking for evidence to clear you. They're looking for evidence against you. They're looking to twist whatever you say -- true or false -- against you.

This is SO true.The cops are not looking for truth, they are looking for evidence.

What's the difference you ask? Evidence is truth with an ulterior motive. In other words, evidence is half-truth (if that). Ironically, and counter-intuitively, this advice -- not talking to federal agents -- is most important if you are truly innocent. Unfortunately, while guilty people may understandably be reluctant, and shrewd enough not, to talk to cops, innocent people are easily ambushed and, unaware of any wrongdoing, see no harm in talking.

BIG mistake.

The best decision I ever made when 7 FBI agents raided my home at 6a and pulled me out of bed stark naked (!), was refuse to answer any more questions (after confirming my identity and ownership of my home-based business) until I talked to my attorney. They immediately stopped questioning me and executed the search warrant (authorizing them to seize all my computers). I had no idea initially why they were there but, after reading the search warrant and sensing quickly where the conversation was heading, I nipped that sucker in the bud.

My wife was not so fortunate. The agents had immediately separated us into different rooms and continued to question her. Had I really had my senses about me, I would have found her and told her she didn't need to talk. They thoroughly intimidated and attempted to humiliate her into giving up information -- the whole experience was very heavy-handed. Fortunately, I guess nothing she said must have been incriminating because the prosecutor never mentioned it.

Case example of failure to follow this advice:

In an earlier post, I referenced the case of a fellow inmate who was convicted in a jury trial of conspiracy to harbor illegal aliens. He was the outside accountant for a chain of gift shops in central Florida. He claims no knowledge of the illegal hiring (the issue of how mere hiring of illegal aliens -- a civil offense -- turned into harboring illegal aliens -- a criminal offense -- is a different story).

He testified in his own defense (a very difficult and tricky decision because, in addition to the risk of being cross-examined by the prosecutors, if you are convicted, your sentence can be enhanced for "perjury" even if you are never actually charged with perjury... I kid you not!), denying any knowledge.

The jury didn't believe him. Fifty year old man. Devout Mormon. Married 30+ years, Father of 7. Impeccable reputation. And the jury didn't believe him.

Why?

Because he talked to federal agents and their version of the conversation differed from his version.

And the jury will always believe an FBI agent's testimony over that of a defendant. A jury simply cannot conceive that a government agent (FBI, police, whatever) would lie. And those people who can conceive of such an act do not end up on juries.

In this defendant's case, he was returning from New York and was essentially ambushed at the airport by agents wanting to question him about his "client." Unfortunately for him, since he was innocent and therefore "had nothing to hide," he spoke freely. Too freely as it turns out. The more you talk, the greater the opportunity for your "testimony" to be twisted into something you never said or never meant.

He had been offered a probation deal to testify against his client (the same deal most of the internal accounting people took) which he refused. He is now serving 48 months in Pensacola federal prison camp. His wife and children visit every weekend. Great man. Wonderful family.

His big mistake?

He shouldn't have talked to federal agents.

Let Judges Use Judgment

I recently found an article that is a nice complement to my article on Prosecutorial Discretion:

Let Judges Use Judgment by Alan Reynolds

The whole article deserves reading but let me summarize with the following excerpt:

Strict bureaucratic sentencing rules, combined with vague federal laws and regulations, are a key reason federal prosecutors no longer have to bother proving their cases to a jury. Federal prosecutors have been able to coerce pleas by threatening that if the case goes to trial they will charge numerous vaguely defined offenses and, in many cases, "forfeit" the accused person's house, car and bank account while waiting for a trial. With the risk of facing multiple counts adding up to decades of mandatory prison time, defendants with any sense of the way this game is played have no practical choice but to plead guilty to a greatly reduced charge with a reduced sentence for "cooperation."

If a misleading letter went through the mail, for example, that could mean 30 years for "mail fraud." If hearsay evidence showed two people were involved in something (which need not be a crime), such a "conspiracy" could add five more years. Accusations of being a "racketeering influenced corrupt organization" (RICO) have been applied to everything from anti-abortion groups to a chicken company.

"Obstruction of justice" is a favorite catch-all, since any remarks short of a full confession might qualify. Section 1001 of the U.S. Code says any person otherwise innocent of any crime can be sent to federal prison for up to five years for concealing a "material fact" or making a "fraudulent" statement in a conversation with any federal official or congressional staffer investigating anything, even though the accused was not under oath and not read his or her rights. Section 1001 is one of dozens of accusations that can trigger asset forfeiture (homelessness and poverty) without trial or admission of guilt.

As Heritage fellow Paul Rosenzweig explained, "Broad and overlapping statutes with minimum obstacles to criminalization and harsh penalties... induce guilty pleas and produce high conviction rates, minimizing the costs of the cumbersome jury system.... And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public."

Bush Signs Second Chance Act of 2007

Today President Bush signed into law the Second Chance Act of 2007, federal legislation designed to ensure the safe and successful return of prisoners to the community.

According to the Council of State Governments, "There are currently 1.7 million people serving time in our federal and state prisons, and millions of people cycling through local jails every year. Ninety-five percent of all prisoners incarcerated today will eventually be released. The Second Chance Act will help ensure the transition people make from prison or jail to the community is safe and successful. "

While in prison, the Second Chance Act was often discussed (trust me, inmates are very aware of potential legislation that is relevant to their situation -- there are documents in the law library that keep us updated -- although they have learned not to get their hopes up too much). Unfortunately, this is not exactly the legislation that we -- at least the guys I hung out with -- were interested in, not that this legislation might not be helpful to some. The legislation they really cared about is called the Second Chance for Ex-Offenders Act of 2007, which is currently stalled in Congress.

But first, the key provisions of the legislation signed today. Then I will discuss the legislation we really want.

Key Provisions

Demonstration Grants. Provides grants to states and local governments that may be used to promote the safe and successful reintegration into the community of individuals who have been incarcerated. Allowable uses of funds include employment services, substance abuse treatment, housing, family programming, mentoring, victims services, and methods to improve release and revocation decisions using risk-assessment tools.

Mentoring Grants. Provides grants to nonprofit organizations that may be used for mentoring adult offenders or offering transitional services for reintegration into the community.

Offender Reentry Substance Abuse Treatment. Creates grants to improve the availability of drug treatment to offenders in prisons, jails, and juvenile facilities.

Family Drug Treatment Programs. Authorizes grants to states, local governments, and Indian tribes to develop and implement family-based treatment programs for incarcerated parents who have minor children.

Federal Reentry Initiative. Provides guidance to the Bureau of Prisons for enhanced reentry planning procedures. Specific information on health, employment, personal finance, release requirements and community resources shall be provided to each inmate released.

Reentry Research. Authorizes the U.S. Justice Department’s National Institute of Justice and the Bureau of Justice Statistics to conduct reentry-related research.

National Adult and Juvenile Offender Reentry Resource Center. Establishes a national resource center to collect and disseminate best practices and to provide training on and support for reentry efforts.

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Second Chance for Ex-Offenders Act of 2007

Now, about the other legislation whose name is similar to the signed bill. It is intended to allow former convicts to file a petition to expunge their conviction record for certain nonviolent criminal offenses.

Currently, federal offenders are offenders forever unless pardoned by the president.

Good luck with your application! :)

Under this proposed legislation, federal offenders can have their conviction expunged, something that normally only occurs at the state level. Upon expungement, all records pertaining to the criminal offense, except publicly available court opinions and appeal documents, would be sealed. Ex-offenders would no longer be required to divulge information related to the expunged conviction. Their status as ex-offenders would not be grounds to disqualify them from any profession. However, a nonpublic record of a disposition or conviction would still be retained by the Department of Justice for use in any subsequent legal action.

Qualifications

The bill specifies five criteria that individuals must meet in order to qualify for the Second Chance Act. They are:

1. No convictions for a violent offense and no conviction for a nonviolent offense other than the one they are trying to expunge.
2. Must have fulfilled all requirements of their sentence.
3. Must have remained free from drug or alcohol dependency for at least one year and have been rehabilitated to the court's satisfaction, if that is part of their sentence.
4. Must have obtained a high school diploma or GED.
5. Must have completed at least one year of community service, as determined by the court.

Nonviolent offenses are defined by the Act as "a misdemeanor or felony offense... [that does not involve] the use of a weapon or violence and which did not actually involve violence in its commission."

Obviously, for white collar guys like myself, who don't really need re-entry assistance, this legislation is much more relevant.