"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, May 25, 2016

What is deemed a grave injustice in Russia is business as usual - for decades - in the U.S. criminal "injustice" system

In 2014, a Russian blogger Andrey Luchnikov wrote an article about the then-pending Legislative Bill to promote the use of plea bargains in criminal proceedings.

Since the article, very critical of that legislation, warns as grave injustice of what is already happening in the United States, for decades, I decided to translate the article for my readers, in full.

For those of my readers who know Russian, here is a link to the original:

Here is the translation.

Andrey Luchnikov


January 5, 2014

The government has prepared a legislative bill which experts call "a nail in the coffin" of criminal justice and the entire justice system of this country.

Not many observers, including domestic and foreign political or social science researchers would call the Russian Federation a state that is friendly to its citizens.

There is recurrent criticism in the press toward the Russian courts, the repressive legislation and the "dirty" way cases are decided: the percentage of acquittals by Russian courts is one of the lowest in the world, while the number of convicted inmates in Russia is comparable with the Stalin-time USSR while the current Russian population is nowhere near the USSR's population levels.

Anyway, as an unnamed optimist justly stated, the situation cannot be so bad that it cannot be made even worse.  While the Russian media was informing our citizens about the details of successful preparation for the Olympic Games in Sochi, and about the fight with the propaganda of pedophilia, as well as with the Vietnamese, the Algerians and the Syrians, who suddenly became the main illegals in our country - a legislative bill importance and seriousness of which is difficult to underestimate has been born in the peace and quiet of governmental offices. 

Proof is no longer needed

As it goes with all serious documents, the new law has a deliberately vague name:  "On introduction of changes into the Criminal Procedure Code of the Russian Federation" - a characterization that says nothing not only to an average lay individual, but also to professional attorneys.  At least, until a person starts to read the text of the new bill.

In the bill, the government proposes to expand through statutory law the use of the "special court procedure", covering with that expansion the majority of the Criminal Code articles of the Russian Federation.  It is being done, as the legislative sponsors of the bill explain, to "cut the costs from the federal budget spent on review of cases on the merits and on court appearances of participants in criminal cases", as well as to "significantly reduce the time spent by courts on review of criminal cases".

In other words, as observers believe, Russian authorities want to save on investigation, the same way as before that they saved on education, science, medical care and some other areas of life.

The special procedure for review of cases is a simplified procedure where a criminal defendant is convicted in one court appearance.  The court does not review the proof collected by the investigation and does not invite witnesses.  The accused, in his turn, agrees with the investigation, acknowledges the accusation in the way it is presented by the investigator and approved of by the prosecutor.  The accused is offered, in lieu of "candy", a more lenient sentence than during a regular court proceedings - not more than 2/3 of the maximum term allowed by the charged criminal statute.

To encourage this practice, the government suggests to cover an expanded list of criminal statutes with the special procedures and to extend such special procedures to cases with maximum terms of incarceration up to 15 years in prison.

At this time, the "ceiling" of such simplified procedure is 10 years. 

Farewell, the Sherlock Holmes-es!

Attorney Sergey Afanasiev believes that "if this law is enacted, 80% of all criminal cases will be reviewed through the "special procedure".  Such a law is a gift to investigation and prosecution: they do no have to bother themselves with tactics, methodologies and problems.  Just get an agreement with the accused - and that's all.  Criminology has ended, cases do not have to be investigated any more."

Attorney Yuri Novolodsky agrees with his colleague.  "If the scope of cases where courts do not have to review the proof is expanded, then, as the authors of the explanatory note for the bill correctly write, there will be a lot of savings of federal monies.  The special procedure allows a court not to review the proof at all", explained the lawyer.

Attorney Novolodsky also notes that the court must take a strict critical position toward every proof produced by the investigation and prosecution.  In this respect, passing the new law, as the criminal defender believes, will become a funeral service to justice.

The special procedure for review of cases was first introduced in the Russian Federation in 2009.  Since then, investigative authorities worked out a special tactic for investigation of "unprovable" cases.  As Attorney Sergey Afanasiev explains, "they caught four people, the investigation does nothing and is waiting who will confess first.  The person who gave testimony because of agreement with the investigators, gets review of his case by special procedure, where the case is severed out into a separate criminal case".  Under such procedure, co-defendants or accomplices are not present at the special proceedings and do not have an opportunity to oppose or rebutt the person's testimony.

After the first court proceedings are over, the investigation returns to the "silent" co-defendants, and the conviction of their co-defendant is used as evidence against them.  Naturally, such defendants have no chance of acquittal under the circumstances.

The observers note that one of the most sensational recent cases - "the case of Kirovles" - was built according to this scheme.  The conviction to the candidate for the Moscow Mayor's position Alexey Navalniy and to businessman Piotr Ofitserov was made on the basis of testimony of ex-director of "Kirovles" Vyacheslav Opalev who was previously convicted through a "special procedure".

Justice through torture is not at all the thing of the past

Some observers give an even grimmer prognosis.  According to them, incentives to get a self-surrender, confession and a plea bargain with the prosecution will lead the Russian court system to a horrible metamorphosis.

As Russian journalist Michael Belyaev writes, "It turns out that the best investigator will be a deranged sadist in whose capable hands anybody will take upon himself all sins of this world.  And the best judge will be the one who will develop a skill of typing up within two minutes' time on his computer the text of a conviction and to sputter it out, not concerning himself in the process about the issues of guilt or innocence.  This is not the end of criminology, as experts say, it is the end of justice.  From the staged Theater of the Absurd, Russian courts will turn into a factory conveyor that rubber-stamps convictions and broken lives every hour". 

Attorneys note that while the new law about special procedures was introduced only in 2009, or relatively recently, already now in provincial areas the majority of criminal cases are reviewed following the "special procedure".  It is not difficult to surmise what will be the result of a law that would allow to resolve practically all cases like that, including murders, criminal enterprises and terrorism.


One of the commentators to the article said, in part, this (I will skip the insults in this comment and will translate only what is relevant for the American criminal justice system):


"BECAUSE these changes are taken one-to-one from procedures of American courts and are introduced in Russia as part of American colonial procedures, same as practically all the "reforms".

In the U.S. such a procedure is called "plea bargaining".  The accused is pressured with threats of maximum prison terms for 3 to 4 criminal charges (in the U.S. criminal justice practice such maximum terms are arithmetically added up, and the practice of overcharging is absolutely brazen).  When the accused "admits" his guilt of what the prosecution wants him to admit, he is given a "discount" (as compared with the blackmail), and the judge approves "the bargain" through his decision."

Apart from the quite paranoid accusation that anything wrong introduced in Russia which is similar to what we have here in the U.S. must be the "colonial conspiracy" of Americans to enslave Russia, and with the correction that not all maximum terms are "arithmetically added up" - there are consecutive and concurrent prison terms, consecutive when crimes charged were committed on a separate occasion or involve a separate set of elements of the crime, concurrent when several charges are based on the same factual occurrence with overlapping elements - both the article and the comment describes what we already have in the U.S.

No proof is needed for a coerced plea bargain.  The same tactic is used to break up one of the co-defendants, creating a "plea bargain race" - who will rat on the co-defendant first, gets the best break - and courts accepting convictions through plea bargains do not review proof and do not know whether the person who is pleading guilty actually did what he says he did.

Threats to coerce plea bargain are common - most common are threats to ask a maximum incarceration.  For example, a 2-year sentence is offered where the maximum is 15 years in prison, and for some people such a risk is simply too high to take, so the innocent plead guilty without ever having committed any crimes.

According to official statistics in the U.S., 95% of criminal cases in this country are resolved by plea bargaining, so courts never reviewed proof, and we the taxpayers who fund this system, do not know whether the overwhelming majority of those who populate state and federal prisons are actually guilty of the charges.

Add the hugely profitable for-profit prisons, see here and here, to those 95% of people who are in those prisons, but whose guilt was never established through proof in court, and you have the answer why such a system exists - for decades.

Slave labor source.

No comments:

Post a Comment