January 13, 1999
From the Anderson Valley Advertiser
ava@pacific.net

By Tony Serra,

The author is a well-known North California defense attorney.

The late 60s, when I started practice, were marked by a great number of salient political causes, embodied in demonstrations in Berkeley and San Francisco. I came to represent the White Panthers, the Black Panthers. the Symbionese Liberation Army, and a number of other groups like the New Liberation Front. I confronted a phenomenon then, which we hoped would diminish, but which has instead increased steadfastly. I’ll call that phenomenon "The Secret Police Motif: Orwellian Prophesy Fulfilled" or "The KGB-ing of America."

Informants –

In every criminal case in our alleged system of justice, some form of spy mentality is now present. There are degrees of informants. We probably have more nomenclature for informants than does any other culture. We have citizen informants, confidential informants, confidential reliable informants, unnamed anonymous informants, informants who are precipient informants who are participatory, informants who are merely eye-witnesses, informants who are co-defendants, informants who precipitate charges by reverse stings. We are con-fronting informants and cooperating witnesses at every level: preliminary hearings, grand juries, and state and federal jury trials. Our system of justice is permeated by the witness or the provocateur who is paid by government for a role in either revealing or instigating crime. It’s probably the greatest tragedy of my career, in terms of whether or not justice is really pursued and whether truth is a foundation for actualizing justice.

Reason: if the defense went out and bought wit-nesses-paid $10,000 for one witness, $20,000 for another, and $50,000 for another for their testimony - it would be laughable from the jury’s point of view they would soundly reject that type of witness; they would be called obstruction of justice defendants and the lawyers would he prosecuted. Obviously, you can’t do that. On the other hand, in every major case the informant or cooperating witness gets something far more precious than money; they get liberty. They get 20 years or 10 years knocked off their sentences. They get to settle in a new lifestyle with a new identity and obtain a job or relocating in the federal or state witness protection program.

The government is paying their witnesses with freedom. The witnesses have to deliver what the government wants or they don’t get that bargain. As a consequence the courts are rife with false testimony; every cause is polluted by informants. The adversary system is tainted because everyone rolls or becomes a government witness and therefore there is no opposition. Constitutional rights aren’t litigated because cases are determined by how much evidence an informant or corroborating witness can give you. At every level, the independent judiciary is eroding.

It’s something we confront every day. People in the American sub-culture experience paranoia because they never know who is a spy or an informant. There’s paranoia in he court system because you never know whether your co-defendant is recording you. There’s paranoia among the lawyers because you never know if your own defendant is rolling behind your back and recording you. In my opinion, the singularly unexpected and singular aspect of our system of criminal jurisprudence is the use of the informant.

Grand Juries –

Back in the 60’s the government used grand juries to some small degree. Today, every Federal case - 99.9% of all Federal cases - involves indictment by grand jury. That means no preliminary hearing, no confrontation, and no lawyer present on the behalf of the accused. The accused isn’t there and doesn’t see, hear or confront, or cross-examine his or her accusers. The grand jury system by its nature is secretive; it is considered a felony to reveal anything that occurred or what your testimony was.

We have a kind of misplaced historical procedure. We inherited the grand jury from English Common Law, where they used it to go after the lords and persons who were otherwise above the law. In a sense it was needed and justified then. But in our country, it is used now as an instrument of terror. Everyone fears it. You have relatives testifying against one another. With no confidentiality privilege with respect to family members other than husbands and wives, you have parents called to testify against their children. Children are called to testify against their parents, and brother against sister, and so on. It lacks all due process. It is immoral. It is an instrument of oppression. It’s another secret tool of an expanding executive branch.

Mandatory Sentences --

See www.famm.org

"Three Strikes" types of penal laws are prevalent both in federal and state jurisdictions. Beyond that, in most federal cases, at least in drug cases, but spilling over into other arenas, the sentence is really set by the legislative process and by the executive -that is, the law enforcement agencies. They mandate what sentence is going to occur by how they file charges. The judiciary lacks power or discretion to vary much, if at all, from the mandatory sentencing and its attendant guidelines. You have a fatal shrinking of the balance of powers. We’re all taught that our constitutional form of government works because of its tripartite system: executive, legislative, judicial. When mandatory sentencing occurs, the legislative, actualized by the executive, has swallowed up the judiciary. We do not have an independent judiciary. We have a rubber-stamp judiciary.

We all know the platitude that our country presently has more people in jails or prisons than any other country in the history of the world. That was unpredictable in the 60s. We thought things were getting better. We thought that more freedom was going to occur, more understanding, more compassion, more brotherhood and sisterhood, more actualization of constitutional rights, and more equal division of resources. Those motifs of the 60s have been sadly aborted. What we have instead is approaching a police state that is investigated by undercover officers and informants, with judges’ hands tied and prosecutors obtaining prison sentences that we could never have conceived.
See
Drug War Prison Bonanza - By Kevin Nelson -- Outstanding Report!

No Bail

(Marijuananews note: The 8th Amendment to the Constitution in the Bill Rights actually prohibits "excessive bail," but this has not prevented people from being held even without any bail being allowed.)
See
Judge Releases Kubbys On Own Recognizance.
Libertarian Party Organizations Now Committed To The Marijuana Issue.
Large Number Of Plants Will Force Dealing With Difficult Questions -- Analysis By Richard Cowan
and
September 7^th Trial Date Set For McCormick and McWilliams;
McCormick Bail Revocation Hearing Set For March 17.
and
Peter McWilliams Released On $250,000 Bail After Month In Federal Jail
The notion of bail is vastly eroding. We have a concept now built into the law called "preventive detention," a euphemism that probably only totalitarian states could create. But what that means is that in most major cases, there’s a presumption against bail. They don’t have to give you bail. We’re taught as children that in anything other than a capital offense, reasonable bail must be afforded. A presumption of innocence underlies our system of criminal jurisprudence; we have a strong history of not holding people in custody until their guilt or innocence has been determined. That’s not true anymore. Right now, the custodial status in preconvicted sentences- people who have not yet been sentenced -- is astronomical and the jails are filled not only with convicted people, but with unconvicted people. We think that there are laws that establish rights to a speedy trial in both federal and state cases, people languish in custody one or two years awaiting trial.

Some of us are crying out. The legal profession cries out like the miner’s canary. We’re saying, "The government is too strong. Beware!" ‘"The jury system is being poisoned by propaganda. They’re not fair and impartial any more. Beware!" "Racism is creeping back into our system of justice. Beware!" We hope that if we at least keep an eye on the situation and report it in a dramatic fashion, then another generation may do what we thought we were doing in the 60s, and swing the pendulum back. Because if the pendulum doesn’t swing-judicially and courtwise ~ we are approaching a totalitarian state never before experienced in this country.