THE CORRUPTION OF JUSTICE

ASK me who are the salt of the earth, and I'll answer, criminal defense
attorneys. For many an unfortunate, they are the first and last line of
defense, and even though the criminal bar has its share of frauds and
deadbeats, the criminal defense is packed with selfless types who work
extremely hard for not much money. They see the system in all its arrogance
and cruelty, and fight it every day.

One of the best defense attorneys on the West Coast is Tony Serra, famous
for defending Native Americans. I shared a platform with him one time,
raising money for his defense of Bear Lincoln, who was charged with killing
a sheriff's deputy in Mendocino County. Serra got Bear off the capital
charges, a tremendous achievement in a county not noted -- but then, which
county in the United States is? -- for its compassion toward the first
Americans.

At that time, Serra gave a striking account of what he called the KGB-ing of
America. From time to time, in speech or print, he reprises the theme, and
it is worth repeating.

Problem No. 1: snitches. Ever since torture ("the third degree") was phased
out in the early 1930s as the prime investigative tool of law enforcement,
the culture of snitching has metastasized.

As Serra points out, if defense attorneys went out and bought witnesses,
they'd be hit with charges of obstructing justice. But prosecutors routinely
slide witnesses wads of cash and hold out that infinitely potent bribe --
freedom, or the prospect of freedom on an accelerated schedule. The texture
of criminal justice is that of snitching, of confecting false testimony, of
bearing false witness. The beating heart of the criminal justice system
today is the snitch.

Serra's next complaint is about grand juries, whose use has grown at a
staggering rate over the past generation.

"Today," Serra points out, "99.9 percent of all federal cases involve
indictment by grand jury. That means no preliminary hearing, no discovery
prior to indictment, no confrontation, no lawyer present on behalf of the
accused. (Unless you happen to be Bill Clinton, president of the United
States.) The accused isn't there and doesn't see, hear, confront or
cross-examine his or her accusers."

Next: mandatory sentences, which are an obvious abuse of the constitutional
principle of separation of powers, since the law enforcement agencies now
stipulate the sentences and the judiciary has to go along.

Serra finally points his finger at the eroding of bail. These days, there's
a presumption against bail and consequently an onslaught on the fundamental
presumption of innocence. The jails are filled with unconvicted people.

And finally, there is the constitutional right to a "speedy trial" -- a
right fast becoming a joke, as people languish behind bars for a year or
more, with no more legal representative speed than a drowsy snail.

There you have it. The cops abuse your Fourth Amendment protections against
search and seizure and arrest you; you are either denied bail or have it set
at a prohibitive level; so you sit in jail for a year, after which a
jail-house snitch tells the prosecutors you confessed to him; you go up
before a jury and are convicted on the basis of false testimony; and
mandatory sentencing puts you away for 15 years.

Will the pendulum swing the other way and the savage assault on basic
liberties be repelled? Clinton has been a nightmare on all these issues, as
on rights of immigrants and people on Death Row. As did Attorney General
Janet Reno and the U.S. Congress, he endorsed the 100-to-1 disproportion in
sentencing for crack and powder cocaine. All the while, the crime rates have
been dropping.

Perhaps sometime in the next decade, the U.S. Supreme Court will agree -- as
did a three-judge panel on the U.S. 10th Circuit last year -- that promises
of reduced sentences to snitches constitutes a prosecutorial bribe. Perhaps
the Supreme Court will also agree that mandatory sentences are
unconstitutional. Perhaps grand juries will be curbed, at least in the
sealed nature of the proceedings. But nothing will happen unless people
start campaigning on the issue and unless a stint in a prosecutor's office
stops being one of the prime avenues to a political career.