The Corruption of Justice

by Alexander Cockburn

One of the best defense attorneys on the West Coast is Tony Serra, famous for defending Native Americans. I shared a platform with him one time, raising money for his defense of Bear Lincoln, who was charged with killing a sheriff's deputy in Mendocino County, Calif. Serra got Bear off the capital charges, a tremendous achievement in a county not noted -- but then, which county in the United States is? -- for its compassion toward the first Americans.

At that time, Serra gave a striking account of what he called the KGB-ing of America. From time to time, in speech or print, he reprises the theme, and it is worth repeating.

Problem No. 1: snitches. Ever since torture ("the third degree") was phased out in the early 1930s as the prime investigative tool of law enforcement, the culture of snitching has metastasized. As Serra says, "We probably have more nomenclature for informants than does any other culture. We have citizen informants, confidential informants, informants who are percipient, informants who are participatory, informants who are merely eyewitnesses, informants who are co-defendants, informants who precipitate charges by reverse stings. Our system is permeated by the witness or the provocateur who is paid by government for a role in either revealing or instigating a crime."

As Serra points out, if defense attorneys went out and bought witnesses, they'd be hit with charges of obstructing justice. But prosecutors routinely slide witnesses wads of cash and hold out that infinitely potent bribe freedom or the prospect of freedom on an accelerated schedule. Ask yourself, how great is the power of a bribe to knock 10 years of a prison term? What's that worth in cash? What cash is the equivalent of 10 years' liberty?

And so the texture of criminal justice is that of snitching, of confecting false testimony, of bearing false witness. The beating heart of the criminal justice system today is the snitch.

Serra's next complaint is about grand juries, whose use has grown at a staggering rate over the past generation.

"Today," Serra points out, "99.9 percent of all federal cases involve indictment by grand jury. That means no preliminary hearing, no discovery prior to indictment, no confrontation, no lawyer present on behalf of the accused. (Unless you happen to be Bill Clinton, president of the United States.) The accused isn't there and doesn't see, hear, confront or cross-examine his or her accusers."

It can be a felony to disclose anything that happened or what your testimony actually was. We were given a lurid illustration of the abuses this secrecy can engender when Monica Lewinsky's actual grand jury testimony was made public. We were able to compare her words with independent counsel Ken Starr's misrepresentation of them in his report to Congress.

Serra rightly indicts the grand jury system -- originally developed in English common law as a means to go after the rich and powerful, and now used as "an instrument of oppression ... another secret tool of an expanding executive branch."

Next: mandatory sentences, which are an obvious abuse of the constitutional principle of separation of powers, since the law enforcement agencies now stipulate the sentences and the judiciary has to go along. Serra defines this abuse well: "When mandatory sentencing occurs, the legislative, actualized by the executive, has swallowed up the judiciary, which becomes a rubber stamp."

Serra finally points his finger at the eroding of bail. These days, there's a presumption against bail and consequently an onslaught on the fundamental presumption of innocence. The jails are filled with unconvicted people.

And finally, there is the constitutional right to a "speedy trial" -- a right fast becoming a joke, as people languish behind bars for a year or more, with no more legal representative speed than a drowsy snail.

There you have it. The cops abuse your Fourth Amendment protections against search and seizure and arrest you; you are either denied bail or have it set at a prohibitive level; so you sit in jail for a year, after which a jail-house snitch tells the prosecutors you confessed to him; you go up before a jury and are convicted on the basis of false testimony; and mandatory sentencing puts you away for 15 years.

Will the pendulum swing the other way and the savage assault on basic liberties be repelled? Clinton has been a nightmare on all these issues, as on rights of immigrants and people on Death Row. As did Attorney General Janet Reno and the U.S. Congress, he endorsed the 100-to-1 disproportion in sentencing for crack and powder cocaine. All the while, the crime rates have been dropping.

Perhaps sometime in the next decade, the U.S. Supreme Court will agree -- as did a three-judge panel on the U.S. 10th Circuit last year -- that promises of reduced sentences to snitches constitutes a prosecutorial bribe. Perhaps the Supreme Court will also agree that mandatory sentences are unconstitutional. Perhaps grand juries will be curbed, at least in the sealed nature of the proceedings. But nothing will happen unless people start campaigning on the issue and unless a stint in a prosecutor's office stops being one of the prime avenues to a political career.