The Caswell case which I wrote about yesterday points to the inability of US Attorney Carmen Ortiz to make reasonable judgments. It took about a week to try the case which had lingered in the courts for three years. Judge Judith Gail Dein took the time to visit the home of the motel owner Russ Caswell and to examine the motel and its surroundings. After hearing the evidence, she took a couple of months before she came down with her decision. She meticulously spelled out the facts and examined other cases involving forfeitures in the country to compare them to the Caswell case and to distinguish them if necessary. It took her many hours and she finally set out her reasoning in a 59 page document. She did this work because she knew that it was likely that unless she shut the door completely on the US attorney the case would drag on and be appealed.
To me it was always clear this is not the type of case you bring. You don’t take a law-abiding person’s livelihood from him without a good and substantial reason. One drug transaction a year in a motel over a 15 year period where the law pretty much requires a motel owner not to discriminate against any person who is able to pay for a room was not such a situation which should allow the government to seize his motel. Especially since there was no warning to the owner that he should be doing other than he was doing and no one had a reasonable suggestion as to how he could have done differently than he did in conducting his business other than shutting it down, which the government decided it would do.
I had no idea what type of drug transactions were involved, that is, whether the motel was being used as a base for large distribution operations or whether it was a situation where the drug incidents were open and notorious. I just believed the number of incidents did not rise to the level that one could say the motel was being used to facilitate the violation of the drug laws. We’d learn that the reason why the motel was targeted is that it was worth about 1.5 million, had no mortgage, and was owned as a family business. It was flashing a sign “take me, it’ll be easy money, I can’t defend myself.”
Even with that sign flashing, here’s the evidence the government produced to take the motel: over the 15 years there were 15 cases. The first five incidents between 1994 and 2001 involved small amounts of heroin or cocaine. Two of the incidents in 2003 and 2004 had no drugs of significance and one other a small amount of heroin. In 2005 a serious incident, a meth lab was discovered. It had been there no more than two days and was not detected until a police officer arrested a person for passing counterfeit money and went back to her room to find it only after she opened the door. In 2006 some marijuana was found and in 2007 a person overdosed. In 2008 in four incidents the police came up with a couple of bags of cocaine, some ecstasy pills and some suspected drugs. All agreed Russ Caswell knew nothing about these people or their intent to use drugs.
The Tewksbury police department was complicit in the taking because it would gain 80% of the money recovered. Russ Caswell grew up in Tewksbury, graduated from its high school, worked there all his life, raised his family in that town, paid his taxes, and was known as a good citizen. His police department turned on him. I can’t imagine how the Tewksbury police can condone its actions in trying to put a 69-year-old law-abiding guy who has worked hard all his life, his seriously ill 71-year-old wife, 92-year-old mother-in-law, his kid, his daughter-in-law and grand kid out on the street. If I lived in Tewksbury I’d want to know how the department justified its actions.
The DEA would get 20% of the motel. Its agents brought the case to the US Attorney. You have to wonder at the judgment of all these people. Don’t they have enough to do other than to pick on a motel owner and his family, none of whom have ever been involved in any criminal activity and were unaware any was occurring.
US Attorney Carmen Ortiz in response to Judge Dein’s decision said: “This case was strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades . . . “ That, of course, was a gross exaggeration, a term used by Judge Dein to describe some of the arguments made by the US attorney’s office before her. It wasn’t such a case, it was a case to unjustly enrich the Tewksbury police and DEA at the expense of a hard-working American based upon things he had no control over and to deprive that man and his family of their livelihood and retirement savings.
I urge you to read Judge Dein’s decision to get a full idea of this case. Pay particular attention to her rulings of law where she discusses other forfeitures made by our government. I found it sort of chilling that the courts have upheld other cases where a person’s property was seized and forfeited when that the person had no involvement in drug activity. I can only think that the rights of the people to be secure in their persons, houses, papers, and effects have been greatly diminished by unwarranted forfeiture actions as we see here and in those other cases Judge Dein talked about.