An article in today’s New York Times “Sentencing shift gives new clout to prosecutors,” brings to the fore one of the biggest problems in our country, and one of the many things crushing Sacramento’s homeless people: the failure to maintain fairness in the justice system.
It’s an indictment1 of not only the the Supreme Court, DAs’ offices, judges generally, how police are utilized and politicians, but, also, major newspapers, like Sacramento’s Bee, which have a nation-saving responsibility to keep the public alerted to the breakdown of vital institutions.
The top-of-the-front-page story tells of District Attorneys’ offices that have gained/grabbed (1) the lions’ share of what little power defense attorneys once had and (2) the discretionary power that judges once had, as a result of legislation passed, across the country, to salve unrealistic fears of the populace. Many of these fears have been induced by functionaries of justice and prison institutions and rightwing politicians and their media.2 It also says something about how justice is lost [when needed most!] during tight economic times.
Today, punishing people for crimes that have been committed is the littlest part of what happens when the gears of justice grind and some soul is yanked into jail. The gameplaying of plea-bargaining outweighs doing what is just – and even outweighs interest in whether a defendant is really guilty, either legally or morally, of anything at all. Indeed, today it is common for fully innocent people to agree to jail terms in plea bargain, to avoid being tagged with a far greater punishment by an Orwellian justice system where the District Attorney is the central power and catches all the breaks.
Says the Times story,
“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
And, later in the article,
In the courtroom and during plea negotiations, the impact of … stricter laws is exerted through what academics call the “trial penalty.” The phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.
In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.
…
“[In today’s tight fiscal climate] there are some judges who will punish you for going to trial,” [said Bill Cervone, the state attorney in Gainesville, FL]. “Legally, you cannot impose a longer sentence on someone because they exercised their right to trial,” he said, speaking of judges. “Factually, there are ways to do it.”
A judge in a District Court [one stop short of the Supreme Court] tells of the great loss in actual trials that now occur:
“How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” said Senior Judge John L. Kane Jr. of United States District Court in Denver, who believes that prosecutors have grown more powerful than judges. But it is very common, he added. “That’s what the public doesn’t see, and where the statistics become meaningless.”
But one result is obvious, he said: “We hardly have trials anymore.”
Being innocent doesn’t help:
No matter how strongly defendants believe they are innocent, [said Denis deVlaming, a prominent Florida criminal defense lawyer], they could be taking dangerous risks by, for example, turning down a one-year plea bargain when the prosecutor threatens additional charges that carry a mandatory sentence 10 times as long.
…
Experts like Ronald Wright, a former federal prosecutor and now a professor of law at Wake Forest University, say they fear that the steep decline in acquittals [which are much reduced in Federal cases now, as compared to the past] stems partly from more defendants, who might have winnable cases, deciding not to risk trials and reluctantly accepting plea bargains instead.
The article ends describing a case where a man fired a gun in his own house, just “to scare his daughter’s boyfriend out of the house after he repeatedly threatened his family.” The man felt fully innocent of any real wrong-doing. But due to the man’s determination to have his day in court, he turned down a plea bargain, and lost in trial. He was sentenced to 20 years, the mandatory minimum in his state for a fired gun. Even the reluctant, “duty bound” judge saw things as unfair. And the sentenced man has come to believe America is now a “banana republic.”
From what I've read, and learned in three-plus years of being homeless, I cannot help but think, add Perry as President, and how very close to a banana republic the USA would be.
From what I've read, and learned in three-plus years of being homeless, I cannot help but think, add Perry as President, and how very close to a banana republic the USA would be.
And in Sacramento County
I have heard cases of Sacramento homeless people that are freaking nightmares of injustice, which because I don’t know all sides to the stories, and because I don’t want to get anyone “out here” in any more stupid kind of trouble, I feel I mustn’t write about what I've heard.
But here is my story of my one crime [other than the thrown-out-of-court tale of Libby Fernandez’s Flying Monkeys getting me handcuffed on the street and charged with trespassing after daring to write two blogposts. Freedom of the Press isn’t recognized in the truth-averse North Korea of LibbyLand. These are the two blogposts I wrote: “Loaves & Fishes’ program of “Collective Punishment”“ and “Babies are gonna die! Babies are gonna die!“ Proof of that being my supposed crime is in a police report, from what was reported by a Flying Monkey. By the way, I fully stand behind the stories, now as then. They are the absolute truth. And, may I add now, somebody should throw a bucket of water on Libby so we can watch her melt.]
My story. In the days after my mother died on Apr 15, 2008, my sister revealed to me that she had gotten Power of Attorney from our Alzheimer’s-suffering mother, everything was hers, and “f*ck you.” This, after I had effectively prepaid for the funereal and wake, covering my sister’s charges for all that on her credit card [amounting to ~$25,000, all I had].
Within ten days, I was at Union Gospel Mission, homeless and penny-less, and, in an unrelated moment, robbed of my wallet. But before arriving at UGM, two windows, on either side of a front door at the site where the wake for mother would be held [my sister’s house] got broken by a tire iron. Before that, my sister had barred me from the funeral. [I don’t want to draw readers into the whole of the long, long backstory with all its soap-opera moments, but it has to be said that I was taking care of our mother, while my sister, working for Bank of America, was negotiating mortgage loans in Florida and other far-flung places. Our mother always favored me, for many understandable reasons, while I defended my sister to our mother and my sister always tore me down. Next in events, my sister slyly divides from her legally-committed partner and ultimately gets, I don't know exactly what -- but millions -- solely for herself from our mother's death.]
Fast forward nearly one year: I’m charged with a crime, vandalism. I am assigned a Public Pretender; let’s call her “J.” J and I talk; I tell her everything; I’m told that J is this great, great friend and champion of Loaves & Fishes. J even gives a grandly received memorial speech for a prominent, beloved homeless guy of the time.
J then shows me a letter from the DA assigned to the case where the DA says it is up to J to decide when the plea-bargain factors he has told to her should be withdrawn, due to any perceived lack of the defendent's interest. The DA wrote (something to the effect) “there are these foreboding factors; if we have to investigate further, then a very serious felony is likely to need to be added.” I say “not interested” to the plea offer.
The next time J has me in her office, she sits behind her desk and plays with her breasts, while remaining clothed. It leaves an indelible impression on me. It is fully bizarre. I'm stunned.
The time after this that I’m alone with J, in a quiet spot in the courthouse, J talks babytalk.
The subsequent time I’m alone with J, she says nothing, just moving her kind-of-odd mouth around in these strange angles.
[I read J's "message," easily. She will do nothing but have me accept the plea bargain, or further the plea-bargaining process, which I won’t do.]
I go to J’s boss’s boss and tell him what has occurred and that I want a lie-detector test to show that my story, which seems fully amazing to me, is the truth. He won’t do anything and says I can complain to the county.
I ask J to pass me to some other Public Defender. She won’t or can’t do that. I file an admittedly-unschooled form with the court writing that J is “an abomination” and that justice is being undermined. The judge gives a fervent speech to the effect that J is a girl scout and a credit to her profession. I learn a tad of law and file a Faretta Motion, asking the court to accept me as my own lawyer. J gets the court to have psychiatrists interview me, which ends up delaying things for three months and I remain stuck with the horror J as my "defender."
The psychiatrists [and maybe one high-faluting psychologist] decide that I am sane by majority vote. I get my Faretta Motion approved by the “J is a girl scout” judge and then file a successful motion to bar that judge from having any more say in my case.
A year and a half passes (something like that), during which I got two- or three-months’ General Assistance, a hundred bucks from Google for blog ads, and something between a thousand and 15 hundred dollars from small insurance awards having to do with our mother’s death, that my sister couldn’t steal. I live lean, most of the time with no locker, carrying all my stuff, staying at the mission --and when I can’t, outside, or, on a few weekends, at a friend’s house.
Neither the DA’s office nor I initiate communication between us.
At the trial, I don’t have any money, and I can’t really ‘do’ lawyering. Though I have some arenas of smarts, legal, I discover, ain’t one. My defense strategy has to do with “jury nullification” – or whatever it’s called – where the jury does what’s right, despite all else.
One juror, with a background in legal matters, in the middle of the ‘event,’ grandly objects to the judge regarding the injustice of the trial [to which, I am thinking, ‘Gee, am I really THAT bad!!?’]
I do get to question my sister in the trial, which I don’t do well. But my sister can’t help but seem like Leona Helmsley, whom she literally had come to move, gesture and sound like. As well as “be inside” like.
The jury stays in conference all of the first day after the trial, and during the next morning. Coming into the court, having reached their decision, none of the jurors will look at me. I am pronounced guilty of felony vandalism for breaking two windows.
I will later be jailed and required to pay restitution, including for many hours, at $40/hr, that my sister says she paid her friends to pick up bits of glass.
I will later be jailed and required to pay restitution, including for many hours, at $40/hr, that my sister says she paid her friends to pick up bits of glass.
A juror stays around to see me afterward and tells me the jury was with me, but by factors of law, they felt they had to decide “guilty.”
The Bee
I'm not aware of our local paper covering "justice" as it's practiced, with this loss to society of a moral and just justice system. I'm sure the Bee has, with respect to single issues, look at a lot of injustice, but when has there been an over-arching story? I think it is a certainty that justice-lost in our metropolis is particularly egregious.
On a matter where I am very aware, the Bee fails utterly at notifying the public of the grotesquery of the Communist-infiltrated homeless-services "charities" north of downtown. I refer specifically to Loaves & Fishes, SHOC and SafeGround as organizations that promote politics that the spectacular majority of people in the county and country would find to be offensive in the extreme. By purposefully failing in its duty to the public, the Bee allows for citizens to be fooled and conned into giving to organizations they would rightly deplore.
The Bee is an unnecessary organization unless it does those things that are most important, effectively defending civil liberties. The silly sometimes, but surprisingly capable, Sacramento Press can tell citizens about events and local political doings. The SN&R is better than the Bee, often, with in-depth coverage of important matters. Bloggers do an amazing job in our area; I could make a key-lime pie! And, of course, the Sacramento Homeless blog is a beloved and irreplaceable institution, alerting its up to 25 readers of matters of great importance.
But if the ground opened up and swallowed the area around 21st and Q, who would notice to report on it?
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1 I intend the word figuratively, not legalistically, of course. What know I of legal?
2 This sentence is not from the article, but from other media and from what I've come to believe.
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1 I intend the word figuratively, not legalistically, of course. What know I of legal?
2 This sentence is not from the article, but from other media and from what I've come to believe.
