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American justice doesn’t look so great any more


By —— Bio and Archives--October 2, 2007

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I believe one of the greatest documents ever written is the Constitution of the United States along with its first ten amendments, which are known as The Bill of Rights.  That document spells out in no uncertain terms what the citizens’ rights are and they include such biggies as the right to free speech, freedom of religion, freedom of assembly, the right to own property, protection against unlawful search and seizure, etc.  However, with a proactive judiciary and even more proactive prosecutors, these rights are slowly disappearing from view, as judges that are overly sympathetic to government and its prosecutorial powers are reinterpreting the Bill of Rights.

It would be safe to argue that a number of recent court decisions appear to be politically driven, rather than constitutionally.  There is even a trend among some prosecutors to further their political careers, using the justice system as a springboard.
Michael Nifong was the Durham County, North Carolina prosecutor who charged the Duke University Lacrosse Team with raping Crystal Gail Mangum, a stripper who performed at a team party.  The charges were laid just prior to the 2006 election and since North Carolina has a large population of blacks and the stripper in question was also black, Nifong thought it a good career move to crucify the hapless lacrosse players on charges of rape.  Only problem is, the evidence was so flimsy and the “victim” had such a dodgy background that there was little chance the charges would stick in court.
Regardless of these facts, Nifong pursued the members of the team relentlessly and cause grievous damage to their lives.  He dropped the charges in December, 2006 after he handily won reelection and he was later disbarred, following a series of ethics charges filed by the North Carolina Bar Association, after it was revealed that Nifong was aware of and refused to acknowledge all the exculpatory evidence in the case.
Eventually the students were exonerated, but not before suffering financial and academic losses.
While on the subject of prosecutors furthering their career on the back of hapless defendants, one name stands out with particular significance: Patrick Fitzgerald.  He’s the U.S. Attorney for Northern Illinois who came to fame following the scalping of Lewis “Scooter” Libby, Vice President Dick Chaney’s Chief of Staff.  Fitzgerald charged and convicted Libby of obstruction of justice and perjury during the Valerie Plame affair.  Valerie Plame is the former CIA employee and wife of Joseph Wilson, who is one of the Bush administration’s harshest critics.  Plame claimed that someone in the administration leaked her name as being a covert CIA agent and subsequently put her life at risk.  Fitzgerald was responsible for the investigation into who leaked her name.
Only problem is that Fitzgerald knew that Richard Armitage, former Assistant Secretary of State, was the leak prior to his starting the investigation, yet he still pursued the Libby angle, hoping to do some damage to the White House and thus furthering his own career.
Another scalp on Fitzgerald’s belt is that of Conrad Black, the former head of Hollinger International, a media conglomerate, who Fitzgerald accused of mail fraud, obstruction of justice, racketeering and 11 other charges that stemmed from non-compete payments arising from the sale of some of Hollinger’s properties.
The case was extremely complicated and took months to try, resulting in Black being convicted of three counts of fraud, despite the fact that the payments made to Black were vetted by the company’s audit committee and reported in its annual reports.
Black has yet to be sentenced, but an interesting and chilling development in the sentencing process is a concept called “acquitted conduct sentencing enhancement”.  This principle is a way for courts to punish defendants for crimes that a jury of their peers found there was insufficient evidence to prove guilt. 
Let’s assume someone is charged with theft and possession of stolen property after being arrested by police with a load of stolen computers.  The case goes to trial and the jury finds that the defendant is guilty of the possession of stolen property charge, but doesn’t think the prosecution proved its case in the actual theft and acquits on that count.  During the sentencing phase the prosecution can then ask the court to sentence the defendant on the acquitted charge, thus lengthening time in jail despite the jury’s finding of innocence.
Fitzgerald’s team has indicated that when Conrad Black’s sentencing hearing takes place on November 30th of this year it will ask the court to sentence Black not only on the one count of mail fraud and two counts of fraud.  It will ask for a stiffer sentence because of the charges of which Mr. Black was acquitted.
How can this be, you may well ask, When a defendant is acquitted of a charge it means he isn’t guilty.  Not according to the Supreme Court of the United States who ten years ago ruled “an acquittal on the criminal charges does not prove a defendant is innocent.  It merely proves the existence of a reasonable doubt”.  Legal analysts predict that this could spell real trouble for Conrad Black and his co-convicted.
As for miscarriages of justice, the case of Scooter Libby and Conrad Black et al pales in comparison to that of the case against Ignacio Ramos and Jose Compean, two U.S. Border Patrol agents serving 11 and 12-year sentences, respectively for shooting a Mexican drug smuggler in the gluteus maximus.  This isn’t the usual case of border patrol agents roughing up some Mexicans, as the two agents obviously aren’t of WASP heritage, judging by their names.  According to their defense, the agents stopped one Osvaldo Aldrete-Davila, a drug smuggler who was attempting smuggle 743 pounds of marijuana into Texas from Mexico.  Aldrete-Davila started shooting at them and the agents returned fire, wounding him in the buttocks.
He still managed to escape, but showed up later in a Texas hospital with the story that the agents gratuitously shot him while he was unarmed.  The two agents had made the mistake of not filing a report of the incident and of gathering their spent bullet casings at the scene.  U.S. Attorney Johnny Sutton, another ambitious lawyer, prosecuted the agents for violating border patrol policy and 10 other counts, including the crime of “discharging a firearm in relation to a crime of violence”, despite the fact that the agents were legally entitled to carry and use said firearms.
The case is now under appeal and there is some doubt that the charge of “discharging a firearm in relation to a crime of violence” is even a crime.  In a “friend of the court” (amicus curiae) submission, three Congressmen accuse the prosecution of actually “creating a purported criminal offense never enacted by Congress”.  The Congressmen pointed out that the so-called charge could only be used as a sentencing factor, not as an element of conviction.  Additionally, the intent of the statute is to punish drug dealers who use firearms in the course of their business dealing.  It’s pretty ironic that Johnny Sutton is intent on putting these two agents away, using a legal provision that was initially designed to enhance the sentences of drug dealers.
Finally and perhaps the most troubling development in American law is the recent Supreme Court ruling involving the Fifth Amendment’s Eminent Domain provision.  The Fifth Amendment guarantees the right to own property and further guarantees that one’s property can’t be seized by the government without just compensation. On June 23, 2005 the Supreme Court of the United States changed all that in a landmark ruling that decided the Fifth Amendment of the U. S. Constitution didn’t really guarantee the citizens the right not to be deprived of their private property without just compensation.  Justices Stevens, Kennedy, Souter, Ginsburg and Breyer all found that what the founders of the nation really meant by the Fifth Amendment was that you were guaranteed the right not to have your private property seized under Eminent Domain without just compensation, unless the government saw that it could generate more tax money by kicking you off your land and selling it to a developer.
At least that was the issue confronting the court in its ruling on Kelo Vs. New London, Connecticut.  The court ruled in favor of the government of New London because the city was not taking the land from its owners to confer a benefit on a particular person, but to follow a “carefully considered development plan”.  In the past Eminent Domain has meant that land could be taken for public use and public use alone.  The court has now stretched that interpretation to include “the broader and more natural interpretation of public use as


Klaus Rohrich -- Bio and Archives | Comments

Klaus Rohrich is senior columnist for Canada Free Press. Klaus also writes topical articles for numerous magazines. He has a regular column on RetirementHomes and is currently working on his first book dealing with the toxicity of liberalism.  His work has been featured on the Drudge Report, Rush Limbaugh, Fox News, among others.  He lives and works in a small town outside of Toronto.

Older articles by Klaus Rohrich

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