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Meaningful punishment…? Puh-lease!

2014-11-172016-10-27 Brenda Grantland Leave a comment

reprinted from Truth and Justice Blog 11/17/2014

A fellow defense attorney sent me a Huffington Post article from November 8, 2014, For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man, by University of Cincinnati law professor Mark Godsey, a former prosecutor and editor of the Wrongful Convictions Blog. It begins:

Today in Texas, former prosecutor and judge Ken Anderson pled guilty to intentionally failing to disclose evidence in a case that sent an innocent man, Michael Morton, to prison for the murder of his wife. When trying the case as a prosecutor, Anderson possessed evidence that may have cleared Morton, including statements from the crime’s only eyewitness that Morton wasn’t the culprit. Anderson sat on this evidence, and then watched Morton get convicted. While Morton remained in prison for the next 25 years, Anderson’s career flourished, and he eventually became a judge.

In today’s deal, Anderson pled to criminal contempt, and will have to give up his law license, perform 500 hours of community service, and spend 10 days in jail. Anderson had already resigned in September from his position on the Texas bench….

I agree with Godsey’s statements that most prosecutors and police are ethical and try to comply with their responsibilities under the Constitution – if “most” means at least half. But there is no way to know for sure. I have seen an inordinate number of dishonest, corrupt cops and prosecutors who withhold evidence, fabricate evidence, and lie in court, and bury their wrongdoing until a zealous adversary or reporter uncovers it. It would be impossible to determine how common unethical prosecutors and police are because so few get exposed for their wrongdoing.

I also agree with Godsey’s statement that, when police and prosecutors get caught committing flagrant violations of ethics, law and their constitutional responsibilities, they almost always escape punishment of any kind for it. Read his Huff Po article for some very troubling examples of corrupt prosecutors and cops being coddled and even rewarded.

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What we really need in a forfeiture reform bill- Part IC: Court appointed counsel implemented

2014-11-132016-10-27 Brenda Grantland Leave a comment

CAFRA court appointments are a rarity

In my last blog I discussed the provisions of CAFRA (the Civil Asset Forfeiture Reform Act of 2000) authorizing appointment of counsel for civil forfeiture claimants who are indigent, and the level of funding Congress expected to pay for these defense attorneys. The Congressional Budget Office report for CAFRA stated:

Assuming appropriation of the necessary amounts, CBO estimates that implementing H.R. 1658 would cost $9 million over the 2001-2005 period to pay for additional costs of court-appointed counsel that would be authorized by this legislation.

Apparently that $9 million figure refers only to the projected cost of court-appointed counsel under 18 U.S.C. § 983(b)(1), which authorizes but does not require the judge to appoint counsel for indigent claimants who have charges pending for the offenses that triggered civil forfeiture.

The CBO has a separate estimate for the projected costs of court-appointed counsel for indigent claimants whose primary residence is seized, where the statute requires the appointment of counsel if the claimant requests.

H.R. 1658 also would require the Legal Services Corporation (LSC) to represent certain claimants in civil forfeiture cases and would require the federal government to reimburse the LSC for its costs. CBO estimates that this provision would increase direct spending by $5 million over the 2001-2005 period….

So how much have they actually spent to provide counsel? I have not been able to determine that but I am certain it is a tiny fraction of the amount Congress expected them to spend on providing defense counsel.

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What we really need in a forfeiture reform bill- part 1B: Appointment of counsel for indigent claimants

2014-11-112016-10-27 Brenda Grantland Leave a comment

Appointment of counsel for indigent claimants, part 1B

Yesterday I blogged about the CAFRA provisions which either authorize or require appointment of counsel for civil forfeiture claimants who are indigent, in two very narrow categories of cases, and how they are not being implemented.

Before I go on to part 2 of my list of demands for effective forfeiture reform, I wanted to show you how far short of CAFRA’s goals for providing court appointed counsel — to at least some categories of indigent forfeiture claimants — the actual practices of the courts currently are.

Congress clearly thought the appointment of counsel was very important. This is what the Committee Report of the Committee for the Judiciary said about bill H.R. 1658:

2. APPOINTMENT OF COUNSEL

There is no Sixth Amendment right to appointed counsel for indigents in civil forfeiture cases, since imprisonment is not threatened. This is undoubtedly one of the primary reasons why so many civil seizures are not challenged. As the cochairs of the National Association of Criminal Defense Lawyers’ Forfeiture Abuse Task Force stated before this Committee in 1996: ‘‘The reason they are so rarely challenged has nothing to do with the owner’s guilt, and everything to do with the arduous path one must journey against a presumption of guilt, often without the benefit of counsel, and perhaps without any money left after the seizure with which to fight the battle.’’ This Committee believes that civil forfeiture proceedings are so punitive in nature that appointed counsel should be made available for those who are indigent, or made indigent by a seizure, in appropriate circumstances. H.R. 1658 provides that a federal court may appoint counsel to represent an individual filing a claim in a civil forfeiture proceeding who is financially unable to obtain representation. In determining whether to appoint counsel, the court shall take into account the claimant’s standing to contest the forfeiture and whether the claim appears to be made in good faith or to be frivolous. Compensation for appointed counsel will be equivalent to that provided for court-appointed counsel in federal felony cases. Currently, maximum compensation would not exceed $3,500 per attorney for representation before a U.S. district court and $2,500 per attorney for representation before an appellate court. These maximums can be waived in cases of “extended or complex” representation where “excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.”

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What we really need in a forfeiture reform bill- Part 1A: Provisions to improve availability of counsel

2014-11-102016-10-27 Brenda Grantland 1 Comment

As I said in earlier blogs, the pending federal forfeiture reform bills don’t go far enough.

What we really need in federal forfeiture reform legislation is to plug up the loopholes prosecutors and courts have created in the CAFRA 2000 reforms, and to expand the protections to third parties in criminal forfeiture cases.

Here are my major recommendations. I will talk about them in more detail in later blogs.

Provisions to improve availability of counsel

The impediment that most often prevents claimants from having a fighting chance in court is their inability to hire a lawyer to represent them. Some claimants were indigent in the first place, but quite often claimants had substantial assets until the government seized all of them, or so much of them that they don’t have enough left to litigate their forfeiture cases to completion.

The Constitution’s Fifth Amendment and Due Process clauses should prevent the government from taking private property and depriving the property owner of the means to defend it, especially since forfeiture – be it civil or criminal forfeiture – is punishment (implicating the Eighth Amendment).

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Criminal forfeiture laws need to be reformed too

2014-11-042016-10-27 Brenda Grantland 4 Comments

In recent months the mainstream news media has rediscovered the abuses of civil asset forfeiture as an issue of concern. On October 11, the Washington Post published an excellent series of articles on forfeiture abuse “Asset seizures fuel police spending.” Other print media have begun jumping on the bandwagon, publishing their own original stories. See the Forfeiture Endangers American Rights Foundation’s website’s What’s New page for summaries of recent forfeiture articles.

Television has rediscovered the forfeiture issue too, with the most hilarious skewering of civil asset forfeiture ever, by John Oliver on Last Week Tonight, on October 5, 2014. Already, as of today, 3,709,577 people have watched the YouTube video of the episode.

We are grateful for all of the bad publicity civil forfeiture is getting and that people are beginning to clamor for reform, but reforming civil forfeiture (again!) will only cure half the problem.

Criminal forfeiture has become even more abusive than civil forfeiture.

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Are bogus “fraud” and SUA civil forfeiture cases the latest federal forfeiture racket?

2014-05-052016-10-27 Brenda Grantland Leave a comment

In the past few years I’ve seen a lot of bank account seizures based on the allegations that the money was “traceable proceeds” of fraud – or proceeds of Specified Unlawful Activity (“SUA”) 1/– without any criminal charges being filed against the property owner.

In many such cases we have successfully resolved the forfeiture case – and my clients have gotten back most if not all of the money – without any criminal charges ever being filed. How did we do it? It required diligent investigation, aggressive pursuit of discovery, research, and a great deal of effort, but often in the end I found the government just didn’t have a case.

With fraud and white collar crime being such a big problem in the U.S. today, why would the government seize a bank account for forfeiture based on a fraud or SUA proceeds theory and not prosecute the property owner with the underlying crime?

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How to Defend An Asset Forfeiture Case Without Waiving the 5th Amendment Privilege

2014-02-172016-10-22 Brenda Grantland Leave a comment

Back when I was answering questions from callers to Forfeiture Endangers American Rights Foundation, I frequently took calls from forfeiture victims who had already lost their property by default because they were afraid to contest the forfeiture. Many believed, or were told by lawyers, that they couldn’t contest the forfeiture case without giving up their Fifth Amendment privilege against self-incrimination in a parallel criminal case, or that contesting the forfeiture would make it more likely that prosecutors would file criminal charges.

Those assumptions are not entirely true. The Fifth Amendment applies in civil forfeiture cases, and as a constitutional right, it trumps statutory rules and procedures.

If a forfeiture statute truly forced claimants to choose between forfeiting their property and incriminating themselves, the statute would be unconstitutional under a long line of Supreme Court cases beginning over a century ago with Boyd v. United States, 116 U.S. 616 (1886).[i]

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How our criminal justice system got so out of whack

2013-11-222016-10-27 Brenda Grantland Leave a comment

(c) 2013 Brenda Grantland
reprinted from Truth and Justice Blog, 11/22/2013
When I graduated law school and began my legal practice I had starry eyed notions about the adversary system and believed that it really worked the way it was supposed to.

On the one side there was a relatively conscientious and ethical prosecutor and the other side a relatively conscientious and ethical defense attorney, with a judge who would be relatively fair and unbiased and would follow the law most of the time.

Theoretically these systems would all mesh together into a system of checks and balances that should ensure that citizens are treated fairly and ethically by the criminal justice system, and that the results are equitable under the true facts and established law.

But it doesn’t work that way in real life.

After three decades practicing law, mostly in the criminal justice and asset forfeiture system, with the federal government as my opponent, I can see the system is way out of whack. It’s even worse under state law, where fundraising through lucrative asset forfeiture cases is used to supplement budget shortfalls.

Asset forfeiture has corrupted the criminal justice system and disrupted the system of checks and balances that previously kept law enforcement corruption and unjust prosecutions more or less under control.

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