Montreal, May 10, 2003  /  No 124  
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Ralph Maddocks is a retired textile executive and former management consultant. He lives in Cowansville, Quebec.
by Ralph Maddocks
          Most of us believe, or at least would like to believe, that we live in a democratic and just society, that "Just Society" of which Pierre Trudeau spoke so often. Not that what he said and what he did were always congruent. One recalls "Zap. You're frozen!," a phrase he used to ridicule a Conservative Party proposal for wage and price controls in June 1974, those same wage and price controls which he so joyfully introduced with his Anti-Inflation Act the following year.
          However, to return to the just society. The US Declaration of Independence endows its citizens with certain inalienable rights to life, liberty and the pursuit of happiness. Canada's Charter of Rights and Freedoms guarantees us "...the rights and freedoms set out in it subject only to such reasonable limits as can be demonstrably justified in a free and democratic society." A phrase which provides little comfort in the post-911 reality where "reasonable" is a term likely to be justified only by the one employing it. 
Governmental interference 
          Most would tend to believe then that the rights of the US citizen are less likely to be subject to governmental interference, at least until President George II passed the Patriot Act and other liberticidal measures. They would, however, be quite wrong. Recently, some wag pointed out that the theorem of Pythagoras' contains 24 words, the Lord's prayer contains 66 words, the 10 Commandments contains 179 words and the US Federal Government regulations on the sale of cabbage contains 26,911 words. A regulation of which I am sure few have heard, even fewer have read and none care much about. Therein lies the problem, few of us read government regulations, their prose being hardly enchanting at the best of times. It is this ignorance which prevents most of its citizens from being fully aware of the steadily growing loss of liberty in the USA. The activities of a prosecutor in some small town, or even a large one like New York, rarely engage the attention of a citizen living, for example, in Los Angeles or Boise, Idaho. The sheer size of the country and the vast amount of information available simply cannot be absorbed by everyone and it is this factor which contributes to the ignorance of the citizen whose rights are, or are likely to be, infringed. 
          One of the main principles of English law is that there can be no crime without intent and evidence of a criminal act. Yet much evidence exists to show that these principles are being violated frequently. A couple of examples should suffice, the first of which is that of an unfortunate small businessman in Virginia. The majority of people in business are honest, and those who are not so inclined soon find out that their customers, suppliers and employees no longer trust them, with the end result that they go out of business rather quickly. There is no evidence to suggest that this particular Virginia businessman was anything other than honest, but by disregarding the principle that there can be no crime without intent the prosecutors managed to convict him of conspiracy to mislead the government with fraudulent information. 
          The hapless businessman, one Benjamin Lacey, made a few mistakes in filling out some government reports about waste water. The reports were due before the results returned from the testing laboratory, so the laboratory was in the habit of reading the results over the telephone in order for them to be entered on the appropriate form. Over the many years during which this practice continued, a few incorrect numbers were entered. However, in general, the reports were accurate and there was no evidence at all that the 73-year-old apple juice producer was systematically covering up unlawful activities. Not that any of this mattered to the over-zealous prosecutors who theorized that the mistakes were evidence that he was indeed covering up pollution of a stream. No evidence of stream pollution was given and they kept out of court all evidence that the stream was not in fact polluted. Since the stream was pure and totally uncontaminated, Mr Lacey's conviction was analogous to convicting someone of burning down Place Ville-Marie when everyone can see that it is still standing and untouched by fire.  
Going back 

          The disappearance of and the disregard for the mens rea argument (no crime without intent) and its corollary actus rea (evidence of a criminal act) did not begin to occur only in recent times. Indeed the attack seems to have begun almost a century ago, as early as 1910, when the US Supreme Court allowed the prosecution of the a Minnesota company for cutting timber on Minnesota state land without a valid permit. The company did indeed have a permit, signed by a state official. However, unknown to the company, the state official did not have the right to issue such a permit. The Supreme Court, in the person of Justice Joseph McKenna, argued that "public policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance."  
          Some dozen years later the court ruled that intent was not a necessary ingredient in the commission of a criminal act if the purpose of the law is the "achievement of some social betterment." Perhaps a faltering first step in the social engineering which is today so often a feature of our law courts. In turn, this led the Supreme Court to uphold the conviction of the president of a pharmaceutical distribution company for shipping adulterated products in 1943. What had happened was that a shipping clerk had made a mistake when, accidentally, old labels were placed on two boxes of prescription drugs sent to doctors. There was nothing wrong with the drugs, they were quite safe, and the labels were barely different – only the name of one ingredient was changed. The Court decreed that legislation dealing with actions that endanger the lives and health of people "dispenses with the conventional requirement for criminal conduct – awareness of some wrongdoing."  
          This judgement though was not unanimous, three of the judges did dissent, saying "it is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and that it ought not lightly to be imputed to a citizen who, like the respondent, has no evil intention or consciousness of wrongdoing." Justice Felix Frankfurter though, justified the decision by asking us to have faith in the essential fairness of government agents. He said, "The good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgement of the juries must be trusted. Criminal justice necessarily depends on the 'conscience and circumspection' in prosecuting officers." Perhaps not a view which would have been much contested in those far off days but one which would be considered completely risible in this day and age. In the half dozen decades which have passed since this decision, the quest for justice and fairness towards the citizenry seems to have been totally forgotten by the Federal Department of Justice, whether it has been led by Republican or Democratic Attorneys General.  
Ex post facto laws 
          Another principle of the Common Law used throughout the English speaking world is the prohibition against the passage of ex post facto laws. The US Constitution in particular specifically forbids both the US Congress and the individual states (Article I, Sections 9 & 10) to pass retroactive laws. Yet, in 1797, the Supreme Court did not interfere when the legislature of Connecticut, resolving a conflict over an estate, asserted that the ex post facto clauses applied only to criminal statutes not civil ones. Then almost two hundred years later, in 1994, it upheld a retroactive tax increase perpetrated in December 1987. At the time, Justice Scalia deplored "the reasoning the Court applies to uphold the statute in this case guarantees that all retroactive tax laws will henceforth be valid." As Charles B. Hochman commenting in a Harvard Law Review wrote, "the constitutionality of a retroactive statute depends upon a variety of policy considerations that are based on nebulous measures of the public interest." 

     « Most would tend to believe that the rights of the US citizen are less likely to be subject to governmental interference, at least until President George II passed the Patriot Act and other liberticidal measures. They would, however, be quite wrong. »
          Perhaps the most blatant example of this kind of retroactive legislation is the so-called "Superfund" a measure designed, and passed in December 1980, to clean up toxic waste dumps. The Comprehensive Environmental Response, Compensation and Liability Act, the Sunday name for "Superfund," resulted from a deal which the then retiring President Carter made with the Senate Minority Leader of the time, Howard Baker (R-Tennessee), to pass this controversial legislation while other controversial legislation was held back. The Wall Street Journal of the day commented that while the legislation was held to be the most important environmental legislation of the Eighties, "We certainly do not need one last gasp of the open-ended, no-costs barred approach the electorate rejected in turning out this Congress and voting in a quite different one." Why the incoming Reagan team allowed the measure to proceed remains a mystery, perhaps they were afraid that the Democrats would use it to show them up as being unconcerned with the environment.  
          We shall probably never know why the Republicans did not stop it, but Superfund stands out as a model of poorly drafted legislation impaired by nebulous terminology. The bill was the result of off-the-record discussions between senators where virtually no records, such as committee reports, bill markups and hearing transcripts, were kept. Passed with little debate, with no amendments allowed under a suspension of the rules, the bill was described by William Howard Harsha (R-Ohio) as "...a welfare relief act for lawyers." A prescient statement indeed. 
Sloppy legislation 
          The estimated $1.6 billion in financing needs of Superfund were to be met by a special tax on crude oil, imported petroleum products, basic chemicals and general revenues. Then, using the "polluter pays principle," the Environmental Protection Agency would recover its cleanup costs from so-called responsible parties. However, the bill did not stipulate who those responsible might be, and therein lies the core of the problem. The Reagan lawyers proposed to fill the vacuum with "strict, joint and several retroactive liability." This meant total as opposed to proportional retroactive liability for all parties connected in any way with the waste dumps prior to passage of the Superfund bill, regardless of whether that person or company's actions were legal at the time they occurred or not. It does not require much imagination to predict the results likely to result from this kind of sloppy legislation. There are many horror stories about Superfund and its sequelae so again a handful must suffice. 
          In their search for "deep pockets" the EPA has not hesitated to interrogate employees of waste disposal companies hoping that they could dredge from their memories the sources and destinations of rubbish they supposedly hauled decades earlier. Such recollections are held by the EPA to be evidence of absolute liability. A concrete company in California had the documents to prove that it never sent oil, or indeed anything else, to the Purity Oil Superfund site. Any excesses of such oil as it used for dust control were given to local vineyards to be used between the rows of vines. Yet the EPA held the company liable for the cleanup of some 48,000 gallons of oil, based solely upon the EPA's unsupported assumption that the concrete company must have used the site. 
          Banks which foreclosed on businesses connected to waste sites have found themselves retroactively liable for cleaning up sites. In New Jersey, the archdiocese of Newark bought some land and found itself involved in a $25 million lawsuit over decades old waste found on its property. In Wisconsin, an iron and metal works was declared a "potentially responsible party" for the cleanup of a toxic landfill, based on the finding of the name of the firm's president in the deceased landfill operator's address book! In Wyoming, in the case of a battery-cracking plant deemed to be a polluter by the EPA, a person found himself potentially responsible retroactively. His "crime" was to have sold dog food and to have accepted a third party cheque (from the battery-cracker plant) in payment. 
The use of plea bargaining 
          Perhaps an even more subtle example of the tyranny to which we are subjected increasingly is the use of plea bargaining in the criminal courts. Politicians expostulating about cracking down on crime and that other senseless and hugely expensive activity beloved in the US, the War on Drugs, has pushed this particular agenda to the point where at least 90% of all US criminal trials are based upon plea bargains. In the Canadian provinces, but not in purely federal jurisdictions and cases – although no corroborative numbers could be found – it seems that a similar percentage of cases are plea bargained.  
          In the 18th century world of Blackstone, the English courts did not want their collective consciences to bear any responsibility for convicting the innocent, they believed very strongly that a public jury trial was the best way to determine the guilt or innocence of an accused. They held strongly to the belief that public trials must discover the truth rather than facilitate the convenience of those who control the law and the legal system. Preemptive guilty pleas were considered deeply suspect because they could be presumed to be the result of coercion, and anyway they violated the maxim "No man is bound to accuse himself." It was presumed that only some form of compulsion or torture, or an unprincipled promise of clemency would make a defendant relinquish his right to a jury trial.  
          Judging from the above statistics it is clear that this axiom no longer holds true, in the USA at least. Those who decline a proffered plea bargain will be told that if they insist upon a jury trial they may well find themselves with a significantly increased sentence if convicted, which seems to me at least a very clear form of coercion. Reducing serious crimes to lesser offences indicates that punishment can be reduced if only one will plead rather than go to trial. Reducing a murder charge to manslaughter does not mean that justice has been done. It means that facts are being ignored and that the function of the prosecutor is being corrupted because it is being separated from the truth.  
          Defenders of the practice will tell you that it reduces court dockets, saves resources and keeps the costs lower for the taxpayer. All very true, but it is not serving the cause of justice. From the point of view of the accused, accepting a plea bargain may reduce that person's stress level, it avoids having to learn that one's defence attorney is even more incompetent than originally feared, and saves money by reducing the defence lawyer's fees. From the defence lawyer's point of view making a plea bargain means not losing a case, always something to consider if you want to be considered successful. Of course these are points that are not lost on the prosecutor either and the judge too has a personal interest in reducing his or her case load. This use of charges for what did not occur, as opposed to charges for what did, introduces the possibility that a prosecutor may think about and bring charges in the absence of crimes. 
The prosecution of Michael Milliken 
          One has only to look at the rise of former New York Mayor and prosecutor, Rudolph Guiliani, to learn lessons in the skilful use of this tactic. Consider briefly his prosecution of Michael Milliken whose first "crime" appears to have been that he worked for a second rank brokerage firm and did not work in New York but in Los Angeles. Milliken's invention and use of junk bonds, instruments with interest disproportionate to the risks involved and with no performance history, made massive amounts of money for both his employer and himself. This financial success made Milliken extremely vulnerable to leaks about unspecified crimes of which the press accused him. Crimes which "according to people familiar with the government's investigation" had to do with, for example, insider trading. This, in spite of the fact that the Securities and Exchange Commission has refused categorically to define what it means by insider trading because it would reduce their discretion in bringing the charge!  
          Grand jury testimony was leaked by prosecutors – a most serious felony – in order to increase the pressure on Milliken and used to bring indictments against him on 98 counts of securities fraud and racketeering. Milliken's younger brother was threatened with indictment and FBI agents even hounded his 92-year-old grandfather. Milliken's assets were frozen to increase the pressure on him and Milliken's lawyers eventually bargained the charges down to six counts, none of which had been part of the indictment but were invented by the lawyers. Six counts to which Milliken did plead guilty. Even the judge – at a special sentencing hearing which required a lower standard of proof – was unconvinced by the prosecutors' presentation of additional accusations of bribery, stock manipulation and racketeering. The minor nature of the charges (aiding and abetting the filing of a false schedule by another party; aiding bookkeeping and record violations by another broker and failing to disclose an attempt to recoup expenses from a portfolio manager) do not seem to me to be particularly heinous crimes, but Milliken was sentenced to 10 years anyway.  
          This use of leaks to the press naturally creates public distrust of the victim and as Guiliani once boasted, by giving negative treatment to his targets "the media does the job for me." It is easy to imagine that if a wealthy and resourceful person such as Milliken cannot resist such prosecutorial pressures, the ordinary innocent man in the street facing charges has little hope of extricating himself without accepting a plea bargain. According to a recent issue of The Economist, New York's current attorney-general, Eliot Spitzer, has just won a $1.4 billion settlement against banks without bringing formal charges or even hinting at what such charges might be.  
          A Columbia law professor, H. Richard Uviller, was once quoted as saying, "more innocent people are in prison on their own guilty pleas, I suspect, than by false verdicts of conviction." A searing indictment of a so-called justice system which is unlikely to be addressed, let alone resolved, in this age of the Homeland Security Act. With the circumvention of a Constitution and the protections of the legal system, and with charges increasingly invented by skilful bureaucrats with unaccountable power rampaging through the system, the future of that beacon of democracy and the Rule of Law, the United States of America, grows tenebrous by the hour.  
Previous articles by Ralph Maddocks
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