A Warning for Those Indicted in Boston’s Federal Court

Earlier today I wrote about how the judge in the federal court, Judge F. Dennis Saylor,IV, seem to be dismayed because defense counsel John Amibile and others are putting up a real fight on behalf of their clients. He noted he was unhappy. Apparently defense counsel must perform in such a way so that they do not do anything that would upset the judge. The client is supposed to be satisfied with everyone playing nicey-nicey and end up going off to prison happy that the judge did not have to referee what Judge Saylor found to be offensive and what he called a prize fight.

It must be that in the great majority of the criminal cases in the federal court in Boston the defendants are represented by those like the federal defenders who buy into the idea that a criminal trial is some type of preliminary exhibition match. Blows are thrown but most are pulled because the parties know they will be soon be matched up again in the same pit before the same referees. If that is the case, then one has to wonder about the effectiveness of their representation.

If one gets stuck with not being able to have one’s lawyer of his choice it seems clear that person is in great difficulty. I mentioned the huge costs of Whitey’s defense. That seems to be the enormous problem facing any defendant. Some defendants believe they have deep enough pockets to hire their own counsel but often they find out it was not deep enough.

One such defendant was Aaron Swartz. Poor Aaron was an idealist who was indicted by the Boston federal prosecutors and when he didn’t plead guilty and make it easy for them they increased the charges against him. He was facing charges for stealing scholarly papers off of the internet. The penalties piled on him called for 35 to 50 years in prison. We later learned that the prosecution said it would have recommended six months if he entered a plea of guilty to a felony. If that was the case, why was penalty upped with a superseding indictment.

It seems to me the prosecutors are oblivious to the effect that their indictments have on the lives of people. Some people can do six months in jail standing on their heads; others feel that such a time is a lifetime. Aaron was one of the latter. As you know this brilliant young man committed suicide. His girlfriend gave us an insight into this. Here is what she said:

“I don’t know exactly why Aaron killed himself. I don’t know exactly what was going through his mind. If I had known those things on January 11, if I had even known the right questions to ask, maybe I could have stopped him. Since January 11, I think about it every hour of every day. . .

I believe Aaron’s death was caused by exhaustion, by fear, and by uncertainty. I believe that Aaron’s death was caused by a persecution and a prosecution that had already wound on for 2 years (what happened to our right to a speedy trial?) and had already drained all of his financial resources.

I believe that Aaron’s death was caused by a criminal justice system that prioritizes power over mercy, vengeance over justice; a system that punishes innocent people for trying to prove their innocence instead of accepting plea deals that mark them as criminals in perpetuity; a system where incentives and power structures align for prosecutors to destroy the life of an innovator like Aaron in the pursuit of their own ambitions.”

She also put it another way:

“If on January 10, Steve Heymann and Carmen Ortiz at the Massachusetts US Attorney’s office had called Aaron’s lawyer and said they’d realized their mistake and that they were dropping all charges — or even for that matter that they were ready to offer a reasonable plea deal that wouldn’t have marked Aaron as a felon for the rest of his life — would Aaron have killed himself on January 11? The answer is unquestionably no.”

That is the quandary facing defendants being prosecuted by federal prosecutors in Boston who feel they are innocent. They take one of the lawyers who are part of the team; or, they hire their own counsel if they can afford it, as Aaron thought he could, but the result will be to pretty much to put them in the poor house.

The alternative, which apparently is followed by over 97% of defendants, at least in drug cases, is to plead guilty. (It seems to be 95% in non-drug cases.) Those that choose to go to trial are convicted at a 90% rate. I wonder if that is because they have the lawyers who are part of the system and play nice.

Timothy Lynch of Reason.com wrote: “People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a “witness” who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a 10-year sentence, the decision becomes harder.”

William Young, then chief judge of the U.S. District Court in Massachusetts. and the judge who will be handling the trial of the probation officers said: “The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”

So the bottom line for most of those indicted by the federals in Boston (other than the really bad guys) is to go broke by hiring one’s own attorney; take a member of the team who works with the prosecutors and judges all the time and won’t make too many waves; or enter into a plea bargain that is “heavily rigged against” him or her.

On the walls on the outside of the Boston federal court there are placards engraved with inspiring words of prominent Americans, most of them jurists. I noticed that there is room above the entrance door to that courthouse. I’d suggest another addition for those indicted by the Boston federal prosecutors. These are the words Dante Alighieri set out in his 14th-century epic poem Divine Comedy. 

“Lasciate ogne speranza, voi ch’intrate“

Translated they say: “Abandon all hope, ye who enter here.”^[