KGB-ING AMERICA

The late 60s, when I started practice, were marked by a great number of
salient political causes, embodied in demonstrations in Berkeley and San
Francisco. I came to represent the White Panthers, the Black Panthers. the
Symbionese Liberation Army, and a number of other groups like the New
Liberation Front. I confronted a phenomenon then, which we hoped would
diminish, but which has instead increased steadfastly. I'll call that
phenomenon "The Secret Police Motif: Orwellian Prophesy Fulfilled" or "The
KGB-ing of America."

Informants In every criminal case in our alleged system of justice,
some form of spy mentality is now present. There are degrees of
informants. We probably have more nomenclature for informants than
does any other culture. We have citizen informants, confidential
informants, confidential reliable informants, unnamed anonymous
informants, informants who are precipient informants who are
participatory, informants who are merely eye-witnesses, informants who
are co-defendants, informants who precipitate charges by reverse
stings. We are con-fronting informants and cooperating witnesses at
every level: preliminary hearings, grand juries, and state and federal
jury trials. Our system of justice is permeated by the witness or the
provocateur who is paid by government for a role in either revealing
or instigating crime. It's probably the greatest tragedy of my
career, in terms of whether or not justice is really pursued and
whether truth is a foundation for actualizing justice.

I reason: if the defense went out and bought wit-nesses-paid $10,000
for one witness, $20,000 for another, and $50,000 for another for
their testimony - it would be laughable from the jury's point of view
they would soundly reject that type of witness; they would be called
obstruction of justice defendants and the lawyers would he prosecuted.
Obviously, you can't do that. On the other hand, in every major case
the informant or cooperating witness gets something far more precious
than money; they get liberty. They get 20 years or 10 years knocked
off their sentences. They get to settle in a new lifestyle with a new
identity and obtain a job or relocating in the federal or state
witness protection program. The government is paying their witnesses
with freedom. The witnesses have to deliver what the government wants
or they don't get that bargain. As a consequence the courts are rife
with false testimony; every cause is polluted by informants. The
adversary system is tainted because everyone rolls or becomes a
government witness and therefore there is no opposition.
Constitutional rights aren't litigated because cases are determined by
how much evidence an informant or corroborating witness can give you.
At every level, the independent judiciary is eroding.

It's something we confront every day. People in the American
sub-culture experience paranoia because they never know who is a spy
or an informant. There's paranoia in he court system because you never
know whether your co-defendant is recording you. There's paranoia
among the lawyers because you never know if your own defendant is
rolling behind your back and recording you. In my opinion, the
singularly unexpected and singularly and singularly aspect of our
system of criminal jurisprudence is the use of the informant.

Grand Juries Back in the 60's the government used grand juries to
some small degree. Today, every Federal case - 99.9% of all Federal
cases - involves indictment by grand jury. That means no preliminary
hearing, no confrontation, and no lawyer present on the behalf of the
accused. The accused isn't there and doesn't see, hear or confront,
or cross-examine his or her accusers. The grand jury system by its
nature is secretive; it is considered a felony to reveal anything that
occurred or what your testimony was.

We have a kind of misplaced historical procedure. We inherited the
grand jury from English Common Law, where they used it to go after the
lords and persons who were otherwise above the law. In a sense it was
needed and justified then. But in our country, it is used now as an
instrument of terror. Everyone fears it. You have relatives
testifying against one another. With no confidentiality privilege
with respect to family members other than husbands and wives, you have
parents called to testify against their children. Children are called
to testify against their parents, and brother against sister, and so
on. It lacks all due process. It is immoral. It is an instrument of
oppression. It's another secret tool of an expanding executive branch.

Mandatory Sentences "Three Strikes" types of penal laws are prevalent
both in federal and state jurisdictions. Beyond that, in most federal
cases, at least in drug cases, but spilling over into other arenas,
the sentence is really set by the legislative process and by the
executive-that is, the law enforcement agencies. They mandate what
sentence is going to occur by how they file charges. The judiciary
lacks power or discretion to vary much, if at all, from the mandatory
sentencing and its attendant guidelines. You have a fatal shrinking of
the balance of powers. We're all taught that our constitutional form
of government works because of its tripartite system: executive,
legislative, judicial. When mandatory sentencing occurs, the
legislative, actualized by the executive, has swallowed up the
judiciary. We do not have an independent judiciary. We have a
rubber-stamp judiciary.

We never anticipated in the 60s that one-third of the adult black
population in the United States of America would he either in custody
or on probation or parole. We have eliminated a whole generation of
blacks by incarcerating the youth; the ugly head of racism appears
both as built in ~ implied conditions in the law itself - and in how
people are charged. So you have a revisitation of something that we
thought was eliminated in the 60s: weakening of the judiciary as an
independent body. and the recurrence of racism wedded to mandatory
sentences that lock people away for inordinate periods of time.

We all know the platitude that our country presently has more people
in jails or prisons than any other country in the history of the
world. That was unpredictable in the 60s. We thought things were
getting better. We thought that more freedom was going to occur, more
understanding. more compassion, more brotherhood and sisterhood, more
actualization of constitutional rights, aq more equal division of
resources. Those motifs of the 60s have been sadly aborted. What we
have instead is approaching a police state that is investigated by
undercover officers and informants, with judges' hands tied and
prosecutors obtaining prison sentences that we could never have conceived.

No Bail

The notion of bail is vastly eroding. We have a concept now built into
the law called "preventive detention," a euphemism that probably only
totalitarian states could create. But what that means is that in most
major cases, there's a presumption against bail. They don't have to
give you bail. We're taught as children that in anything other than a
capital offense, reasonable bail must be afforded. A presumption of
innocence underlies our system of criminal jurisprudance; we have a
strong history of not holding people in custody until their guilt or
innocence has been determined. That's not true anymore. Right now,
the custodial status in preconvicted sentences-people who have not
yet been sentenced is astronomical and the jails are filled not only
with convicted people, but with unconvicted people. We think that
there are laws that establish rights to a speedy trial in both federal
and state cases, people languish in custody one or two years awaiting
trial. It's what I'll call another plot, an agony visited upon
criminal justice. In the 60s, we were naive, we were optimistic, and
we believed that reform and new and enlightened ideas would ventilate
through the judicial system. Instead, in most areas, the system has
clamped down.

Some of us are crying out. The legal profession cries out like the
miner's canary. We're saying, "The government is too strong. Beware!"
'"The jury system is being poisoned by propaganda. They're not fair
and impartial any more. Beware!" "Racism is creeping back into our
system of justice. Beware!" We hope that if we at least keep an eye on
the situation and report it in a dramatic fashion, then another
generation may do what we thought we were doing in the 60s, and swing
the pendulum back. Because if the pendulum doesn't swing-judicially
and courtwise ~ we are approaching a totalitarian state never before
experienced in this country.

Tony Serra,
the author is a well known North California
defense attorney