Deborrah L. Newton: The federal jury scheme

January 4, 2014 

Regarding George Will’s recent column “Blunt force justice for drug offenses” regarding federal “draconian sentences”: I applaud publicity of the problem but remain frustrated that the media fail to see the elephant in the room.

That elephant is: Why do (sometimes innocent) defendants bend to the federal prosecutors’ pressure to plead guilty in the face of Section 851 notice of enhancements or mandatory minimum sentences or threat of superseding indictments elevating risk of increased prison exposure? The answer: Because of a prosecutorial conviction tactic neither prosecutors nor defense lawyers have any incentive to reveal.

Prosecutors employ the tactic for that “97 percent conviction rate,” enhancing careers and enriching departments and, for some, simply for the pleasure of ensuring people are imprisoned for as long as humanly possible under their zealot watch, truth be damned. Defense lawyers, who in federal court command $25,000, $40,000 or sometimes over $100,000 because of the threat of this tactic, are greatly enriched when defendants plead guilty and they “turn” these defendants into agents for the government. As such, prosecutors and favored defense counsel are in collusion against a constitutionally threatened subset of society.

The “tactic” is the government’s knowing use of false “snitch” testimony. The only way to defeat it is to try the case before a jury and attempt to reveal the lie. It is a rare defendant who has such courage in the face of the unique federal sentencing scheme of “relevant conduct” exploited and unrecognizable in Pre-sentence Investigation Reports.

The other “tactic” discouraging a jury trial? Defense lawyers who challenge the evidence are blackballed by federal prosecutors to encourage their cooperation. The Hobson’s choice for defense attorneys is: Do I go along, enter the plea/cooperate scheme and take home my dirty money? Or do I challenge the false evidence and find myself shut out of the scheme – and maybe livelihood – altogether by blackballing?

The only safeguards to such an insidious partnership are the rare (some would even say foolish) defense attorneys who try these cases and the integrity of our gatekeepers, federal judges.

This scheme is why the constitutional protection of a defense and trial are all but gone in federal court. However, those of us who fight against such an institutional attack on the constitutional right to trial by jury occasionally experience a glimmer of hard-fought justice. After eight long years of trying drug cases before Eastern District juries, we received a new trial for one of my clients, who was convicted on the weight of wholly false snitch testimony.

Is the federal jury system corrupted? Yes, in the way it has been used to secure the “97 percent conviction rate” without a jury trial. Can it be saved? I would say – today – yes.

Deborrah L. Newton, Raleigh

The writer is a federal criminal defense lawyer. The length limit was waived.

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