No, that’s it.
No argument here. I imagine the vast majority of public defender clients are not diabolical criminal masterminds who meticulously plan their evil doings, skillfully leaving little to no inculpatory evidence and the types of crimes they are likely to commit are not those that are particularly difficult to crack nor prone to much whodunit ambiguity. Likewise, I doubt prosecutorial misconduct/railroading is much of a problem in public defender cases since it’s simply not needed for successful prosecution in the vast majority of these types of cases (not to imply a significant percentage of prosecuting attorneys would resort to willful misconduct even if it was needed to win a case…but, there are bad apples in all professions).
However, if a claim is made that trial cases in general are virtually devoid of factually and/or actually innocent defendants and that railroading is virtually non-existent (not a position necessarily maintained by Bricker, who is limiting to PD cases, but one that appears to be held by some others), then I find that claim to be remarkable, since it runs counter to my firsthand sampling of 2 (involving factual /actual innocence and most probably railroading). 1 or 2 out of 10 or even 100 I can believe; 1 or 2 over a career just doesn’t seem probable. But, I’m not in the field, so maybe I’m wrong.
Add to the list my girlfriend who came very close to being convicted and dragged out of court in handcuffs for contempt of a court order.
Did I mention that the “court order” was written by her ex-husband and signed by one of his friends to look like a judges signature. Did I also mention that this forged “court order” was never given to my girlfriend and she had no clue about it until served with the arrest warrant. Did I also mention that even though her attorney showed the court that there is no judge/commissioner/etc. with that name in California, the Judge refused to have the charges dropped and that only when the ex admitted he had a laywer friend sign it did she get off “on a technicality”. Did I also mention that he was never held accountable for his perjury or forgig a court order?
My theory is that the machinery of state has a paramount interest in its own self preservation. For the system (not just individuals in the system) to admit fallibility of any kind, would pose an existential threat of which the system is well aware.
That reminds me of one of my “that may be the stupidest thing I’ve ever heard” memories.
There was a discussion about the admissability of lie detector results (and ALSO their overall use). Now, keep in mind, in this discussion, the premise was that these were magical lie detectors that if not perfect, were very damn close.
Given that, most of the argument consisted of when and how often should these test be used, privacy issues, probably cause, and so on and so on.
One legal expert chimed in that he still thought they should NEVER be used. Why? Because they would “undermine the sanctity of the jury system” (or something like that).
Hey, we got this near perfect tool! Fuck that Billfish, we got to preserve the system you know! :rolleyes:
That sounds familiar – I’ve gotten the impression (just reading the news) that one of the arguments against using DNA to prove prisoners’ innocence is that our society needs the “finality” of the jury’s verdict, or some such.
Primarily because to know “Tom’s” specialty is to know my specialty and I’m admittedly a little too paranoid, still, to reveal that information in the same venue that I’m saying unflattering things about powerful people (my attorney during the building of my case: “assume the FBI is watching you, listening to your phone conversations and maybe even tracking you online.” Secondly, it seems a bit uncouth to reveal the identity of a friend who killed himself in an internet forum. Lastly, this all happened nearly a decade ago and his account is no longer popping up on my Google search.
I meant that I did nothing criminally wrong; I acknowledged that I was wrong to talk to the feds (“big mistake…”). And here’s why it was a mistake:
(and, I’d be interested in learning from some of you attorneys, if the following shenanigans are atypical in your experience)…
It was apparent from the moment the two agents sat down at my desk that their visit had nothing to do with listening to my side of the story with an open mind, in an attempt to arrive at the truth. Instead, the purpose of their visit was indubitably to:
- intimidate: tossing an album containing dozens of photographs on my desk, shaking their heads and saying, “we know exactly what you were doing, pictures don’t lie, don’t even try to weasel out of it”; “we’ve got reams of evidence against you and dozens of people who saw what you did and what you didn’t do and are ready to testify against you (a verifiable lie, only a handful of people see what I do during the procedure in question…and those few, I was certain, did not flip); leaning forward every few minutes, flapping their jackets open, making sure their shoulder holstered handguns were in my line of site (I had an urge to quickly grab and flick my pistol lighter in their direction asking if they’d care for a cigar, but they didn’t seem to be in a particularly humorous mood); when I finally saw the meeting for what it was and told them, “I was advised by my attorney to not discuss my case without council present, so I’m going to conclude this meeting now and contact him”, that garnered the reply, “only guilty people refuse to talk with us.” Really?
Sidebar: It’s one thing to intimidate me, the focus of their investigation, someone they may actually thought guilty of a heinous federal crime and deserving of some heat, but it’s quite another to intimidate obviously innocent people peripheral to their investigation, but they did. The incident that still sticks in my craw was when they interviewed, let’s call him Timbo, a mentally challenged (dropped on his head as an infant)employee of mine, hired to do odd jobs around the office—a sweet, dopey, too trusting, naïve all-around nice guy…now 44 years old and still a virgin, poor guy. The agents took Timbo to Olive Garden on the pretense of treating him to a plate of ravioli and having a little discussion about his naughty boss. After the appetizer and some idle chit-chat, they leaned on him, hard—imagine a come to Jesus meeting for a Christ-centric Southern Baptist with stifling anxiety and low self esteem. Among other things, they said, “how’s your mom going to feel when we get you put away in prison next to your boss?” Bastards. To his credit and worthy of my admiration, Timbo didn’t crack, and even mustered enough righteous indignation to tell them essentially to “leave my boss alone, he didn’t do anything wrong” and go bugger off. He didn’t flip; no one in my inner circle did.
2)Twist my words: e.g. …“so, you admit you did x,y,z, correct?” ; “uh, no, I didn’t say that at all, I said I did a,b,c…, not x,y,z”; “we know you didn’t do a,b,c, those photos don’t lie…you did x,y,z, we have proof of that…you even said you did x,y,z earlier”; “?!?”.
- With blinders firmly attached, ignore everything of an exculpatory nature I had to offer: After listening to the agents confidently discuss the nature and findings contained in their photographs and how they graphically demonstrated my guilt, I drew a cutaway schematic and proceeded to explain what was really going on in the photos and how they were in no way evidence of guilt. On deck I had a peer reviewed published article authored by me outlining in detail the procedure and its variations. But, before I even completed three sentences, one of the agents cut me off with a wave of his hand and said, “listen doc, stop right there. We’re not [a member of your profession], so your pretty picture and techno babble mean nothing to us…just answer our questions, ok?”
…and, therein lies the rub: they produced evidence that requires a qualified professional to analyze and interpret and they proceeded to analyze this evidence and interpreted it as proof of my guilt, even though they were not qualified to do so. Then, when I, a qualified professional, proceed to analyze and reinterpret the findings, they inform me that they are not qualified professionals and as such, don’t understand or care to hear my analysis. Seems like they found a way to have their cake and eat it too.
So, did they at least have a qualified expert witness in my field back at the bat cave analyzing the evidence against me? I would have thought that would be part and parcel in a case like mine. But, judging by everything I saw and heard concerning the prosecution’s case against me over a span of 2+ years, I sincerely doubt that they did. An expert witness, perhaps; a qualified expert witness, not a chance. If they did, he would have to be either decades out of touch with our profession, mentally impaired, or a liar. The mechanics and assessment of my actions in my case were not at all complicated for someone in my profession. When showed the video, photos and other pieces of evidence alleged by the prosecution to demonstrate guilt, to a number of my colleagues, none saw wrongdoing of any kind—quite the opposite in fact, they were impressed with my work. There were no shades of grey or degrees of semi-guilt involved. There were a number of charges threatened against me (mostly trumped up and absurd, to my way of thinking at least…something to do with interstate wire fraud…or was it kidnapping?…I don’t recall), but they all related directly to one action, one action multiplied many times. If I wasn’t guilty of the main charge, I wasn’t guilty of the lesser charges. Binary, all or nothing.
And it all came down to one stupid, but major flaw in the prosecution’s reasoning. Symbolically, it can be represented as their confusing findings of “A” for findings of “B”. If I did “A” appropriately, documented for “A” appropriately and billed for “A” appropriately, I’m guilty of nothing. And that’s exactly what I did, over and over again, and only when it was indicated and only when it was the best choice. The prosecution claims I never did “A” because they saw no findings that they believed should be present indicating that “A” was performed. In fact, they were looking for findings that would only be present if I did “B” (or botched “A”, making it look like “B”). I do (…make that “did”) both “A’s” and “B’s”, but many more “A’s” than “B’s”. I’d only do “B” when it was clearly a better option than ”A”. “A” pays ; B pays x 10. I wasn’t out to rip anyone off.
I’m not sure if technical ignorance and negligence, willful or not, of the prosecutorial team in toto with regard to the most salient aspects of my case may be regarded as railroading, but, if it does, then I was…
In fact, the smoking gun video that the FBI directed, co-starred in and shot (with—I kid you not—a crotch-cam, mounted in the belt buckle of a retired FBI agent, rolled to me in a wheelchair by a current agent, his son), and subsequently handed to our lead attorney by the “gotcha” grinning prosecutor, turned out to be unambiguous confirmation of my non-guilt and would most certainly have been used as evidence by us in our defense had we gone to trial (…“Mr. Prosecutor, if you don’t mind leaving your tape in the VCR…we’d like to bring your attention to our exhibit A…it’s a little shaky midway through, we believe agent Geezer was having an orgasm at that point…”).
Their whole case was a bumbling comedy festival of errors. If it were made into a movie, it would be titled, Mack Sennett and the Keystone Cops, played by a hotdog prosecutor and his zany FBI agents.
It was indeed tempting to go to trial, as my team wished, but I had too many good reasons not to.
I interned in a community corrections (basically, probation) office. I asked the officer in charge of most of the sex offenders if she’d ever had one that she felt was innocent. She said that there was one she really believed was. He was convicted of molesting a juvenile relative, but it wasn’t the relative who accused him or testified or anything; it was the child’s mother, who I think was mad at him for something else. This guy had no other past or present arrests or accusations and, like almost all of the sex offenders, had to take regular polygraphs. She said there was nothing to lead her to believe he had actually done it.
In my personal opinion, based on a lot of research incurred during my education as a Law and Justice major, among other things, I think there while are a whole lot of people who are factually innocent of the crime they were accused of, the vast, vast majority of them are guilty of something similar or related. Maybe someone didn’t actually sell drugs to THAT guy, but he did to some other guys.
That’s no good at all for our justice system. Any conviction should be based on the facts and circumstances of the specific situation at hand. It should not be based on a general feeling that, yeah, he sure seems like a bad guy, so whatever. But it’s not a tragedy on the same level of a completely innocent person that is convicted.
I’m was thinking that maybe I should spend my every waking hour of the next month posting a recounting every one of the hundreds of cases I prosecuted where the defendant was guilty and properly convicted. Or I could cite to the thousands of appellate court cases where convictions were upheld, or the hundreds of thousands of cases with unpublished opinions with the same outcome. But, in the end, I really don’t think it would make a lick of difference.
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How many innocent people is it ok, in your view, to falsely convict (what percentage overall is acceptable…I agree we’ll never get it 100% perfect barring, maybe, an infallible lie detector)?
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Do you think we shouldn’t care about false convictions as long as most of the people convicted deserve it?
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Do you think I should care if my attorney thinks I am guilty: A) Personally knowing I am truly innocent or B) Personally knowing I am truly guilty?
None are OK. It’s not OK to falsely convict anyone.
Of course not. We should care about false convictions and do everything in our power to eliminate them.
You should always care what your attorney thinks.
Granted.
That said we accept a lot of things that aren’t perfect because perfection is impossible to achieve.
So, if we had a system that got 51% actual bad guys and 49% innocent people I doubt anyone would claim that is fine since the majority of convictions, slim as it is, are actually guilty.
0% ain’t gonna happen either.
So, we should be able to say some percentage is acceptable else the system needs fixing. Of course we do not want anyone falsely convicted and, in theory, we strive for that. Nevertheless it is gonna happen.
So, when you say you can recite the thousands of cases where guilty people got legitimately tossed in jail to oppose anecdotes of people wrongly busted I presume you have some sense of where that balance is drawn.
So, I am asking, where is that line (for you…there is no “right” answer to this)?
Agreed.
So noting that actually guilty people get convicted (from the earlier post of yours I was responding to) has bearing on this how?
Agreed.
The attorneys here though, all of them so far I think, have suggested they have never believed any of their clients are innocent. So, while I may care what my attorney thinks it seems they all think I am guilty. Presumably because the police never grab the wrong person…if I am in need of a criminal defense attorney then those attorneys believe I am guilty to merely have need of them.
Sorry, can’t be thrilled about that if I ever need one.
That’s not what the attorneys here have said.
Err…read the title of the thread.
Maybe I am missing something but I presume someone who is actually innocent is also factually innocent (seems definitional). That the facts as best as can be ascertained suggest the innocent person is factually guilty that is not the case at all. Just an inability of the real facts to be brought to light to exonerate the person.
Yeah, I didn’t say that at all. 
I weaseled a bit and said “I think”.
I do not have a perfect grasp of who are attorneys on the board and which ones replied. Add to that the thread has been going on awhile and I do not have a perfect memory of exactly who said what (and was not up for re-reading the whole thread and compiling an exhaustive list).
We have had a number of attorneys expressing that they have not seen an innocent defendant.
If I unfairly scooped you or some others in my apologies.
No apology necessary, in retrospect I should have just figured you probably missed me. I answered early on, a couple of days ago.
It’s a huge lie, but they are allowed to lie.
You do know that the polygraph is about as reliable as palm reading, right? And not much more scientific.
Hamlet, I don’t know what type of cases you prosecute, and I have no reason to doubt the veracity of your claims or experience, but if the implication is that there is an insignificant amount of wrongful prosecution, malicious prosecution or abuse of power across the legal board, I have to take issue with that.
In the area of health law/fraud and abuse I’m convinced that there is (perhaps “was”, hopefully they’ve cleaned up their act over the last decade) significant wrongful prosecution, malicious prosecution and abuse of power at high levels. And, I’m not basing this on my case alone, not by a long shot.
As far as I know, it all started with Operation Restore Trust (aka Operation Bend Over Doc, This Won’t Hurt a Bit), and grew stronger and more inclusive from that point on. By all accounts, at least to the general public, ORT was quite a successful federal initiative recouping many millions of dollars for the American taxpayer and helping to plug a very leaky hole in the Medicare/Medicaid system. I was a big fan of the initiative myself—what good apple doesn’t want to smash the rotten ones off their professional tree?—until they dropped the hammer on me. Then, people whose judgment I trust, told me of cases similar to mine, then more and more cases like mine. It became apparent to me that the government, in case-building and prosecuting charges of healthcare fraud and abuse, was netting too many fish, essentially using a purse-seine net with mesh too small to allow the small innocent fish to escape. They were indeed recouping great restitution sums from, and harshly punishing, guilty physicians; but, they were doing the same to innocent physicians, too, and not an insignificant number of them—not an acceptable amount of collateral damage, in my opinion.
These articles (same author/some overlap) highlight the problem well and give a few examples involving colleagues: one and two .
Shortly after hiring my second defense team, their firm hired and put peripherally on my case an attorney who just left his judicial district as a federal prosecutor (guess he was ready to make some real money) and was intimately involved with Operation Restore Trust, HHS, HCFA, the OIG and DOJ. He told me, candidly, that overzealous prosecution and abuse of power (the feds obviously have an overwhelming volume of resources it can throw at you, if it wants) were not at all uncommon in the government’s pursuit of healthcare fraud and abuse cases, and he was disgusted by it and was happy to be fighting on the other side.
I really don’t wish to paint with too broad a brush my condemnation of the American Judicial system—I still believe it’s the best the world has to offer and I have no doubt that the vast majority of those involved with it are upstanding individuals with a great deal of integrity and an honest desire to seek real justice. I just believe that playing out too long a leash (as was done with regard to Operation Restore Trust), allows the bad dogs to bite too many people in the ass.
I lied a little. I actually have one more data point that I’m familiar with besides myself and my old classmate who killed himself. Remarkably, this was another classmate of mine (three cases, that I’m aware of, in one relatively small class—extrapolate that nationwide and you can begin to see the magnitude of Operation Restore Trust). I didn’t mention, let’s call him “Dick”, generally regarded as a kisser of professors’ asses in school, because, even though he used to practice in the same city I did and was a former classmate, I never knew him very well and can’t really judge his integrity to the same extent I can with “Tom” (other than the fact that he used to cheat at poker…but, then again, I caught a couple of law students who shared our dorms cheat at poker, too…so what does that tell you?). Dick was allegedly a drug abuser—I saw him at a seminar about 6-months before the shit hit the fan for him, he was fidgety, someone incoherent, diaphoretic and had a rather ugly, painted up tart on his arm (he’s handsome, rich, and typically dating beauties—so I believe that allegation). It was also alleged that he was heavily into selling narcotic prescriptions to patients. Not sure about that one, but it wouldn’t surprise me. He was charged with Medicare/Medicaid fraud by the same federal prosecutor that threatened to indict me, but in the case of “Dick”, I’m pretty sure he got it right and the prosecution was justified.
Apparently, “Dick” didn’t talk to dead people, but he was billing for medical procedures on them and even upcoding (and, no, he isn’t a coroner). One of my attorneys spoke with the AUSA one day in court (apparently, it’s not uncommon for defense and prosecuting attorneys to be on friendly terms when not battling the same case, even gossiping about their clients…who knew) and he related that “Dick” came to court with white powder on his nose more than once, and he wasn’t eating a doughnut. Dick was ultimately convicted and faced over 20 years in prison, but I believe that was reduced. As I recall, he accepted his guilt and blamed his dead person billing errors on being high all the time. AUSA wrapped it up with a pompous statement to the press and that was that. Tragic, but a little funny.
So there you go, three cases, one small sampling pool: rightful prosecution probably 33.3%; that’s better than 0%.
But, I was one of the “lucky” ones—I lawyered up and that seems to have made the difference…
I have little doubt that I was immediately offered a much better plea bargain when I changed council because the new law firm was one of the state’s most elite and I have even less doubt that the only reason the assistant US prosecutor accepted my video and 32-page paper was because my lead attorney is arguably one of the most formidable and respected health law/government relations/ white collar criminal and civil fraud defense attorneys in the country, and as such has considerable clout. And, I’m almost certain that when the AUSA watched my video and read my paper, the thought that popped into his mind was not along the lines,* “gosh, indicting this guy would be a miscarriage of justice”*, but instead, “this doesn’t look like a winnable case any more.” If I’m correct in this assessment, then there is at least one crack in the system that needs mending. Had I a chance to present my defense information two and a half years earlier, it would have saved me and the American taxpayers a great deal of money and my community would not have lost a first rate provider of health care who also, verifiably, consistently undercharged Medicare for the services he provided.