Coyote Blog

Martha Coakley, former Massachusetts Attorney General, is apparently running for Governor of that state after her failed bid to be Senator.

Walter Olson has a round-up of Coakley's various abuses of power, which start with her shameful hounding of the Amirault family against all reason and facts, apparently for the sole purpose of self-aggrandizement.  Unfortunately, all too frequently AG's are rewarded for prosecutorial abuse in the form of media attention and often election to higher offices (Janet Reno rode witch hunts of day care operators very similar to Coakley's into the White House).

The day care worker witch hunt was one of the more bizarre events to occur in my lifetime.  I even sat on a jury of such a case, the only jury I have ever been on.  You have heard of copycat murders?  This turned out to be a copycat false accusation.  It eventually became clear that the teenage babysitter who made the main accusations really wanted to be on the Oprah show, and saw how other day care and child abuse whistle blowers had been interviewed by Oprah.   I kid you not.   By the time of this case, defense lawyers had become wise to the prosecutors' game of using brainwashing techniques to try to get small children to make bizarre sexual allegations against adults in the case.  So the defense was able to highlight the extremes that a couple of state psychologists had gone through to effectively break one poor 6 year old girl.  It was sickening, and it took us about 15 minutes to acquit.   But this is the type of behavior Ms. Coakley and her staff were engaging in.

Until two days ago, I had never ever heard of Nancy Grace but apparently she has a TV show or something and uses it to actively root for prosecutorial abuse.  The presumption of innocence is frustrating until they come for you.

Radley Balko wins journalist of the year award. I used to say he was the best reporter on the web but he is one of the to reporters in the country in any medium. His work on police and prosecutorial abuse has been critical in an era when the media is generally in the tank for tough on crime overreach (eg love affair of press with sheriff Joe).

Thank goodness for the drug war so we can have crappy asset forfeiture laws that allow this:

You're free to go -- but we'll keep your money.

That's the position of Arizona Attorney General Terry Goddard on the failed case of Mario de la Fuente Manriquez, a Mexican media millionaire accused of organized crime.

Manriquez was arrested and charged earlier this year with 19 counts of money laundering, assisting a criminal syndicate, conspiracy and fraud. Seven other suspects, including Manriquez's son, were arrested in the alleged scheme to fraudulently own and operate several Valley nightclubs and exotic car dealerships.

Charges against Manriquez's son, Mario de la Fuente Mix, were dropped in August. And on Monday, as we reported, the state moved to drop the case against Manriquez.

But the state still wants to keep $12 million of Manriquez's money that was seized in the case, a spokesman for the AG's office tells New Times today.

The folks involved don't strike me as particularly savory characters, but due process is due process and if you drop charges against the guys, the money should be considered legally clean, especially when the authorities confess

Prosecutors acknowledged the money funneled to the United States from Mexico was earned legitimately by Manriquez. In the end, they couldn't prove he knew what was happening with his dough.

What happened to the money, by the way, is that is was invested in a series of businesses that appear to be entirely legal, their only apparent crime being that the incorporation paperwork omitted the name of Manriquez as a major source of funds.  Wow, money legally earned invested in legal businesses, with the only possible crime a desire for confidentiality (at worst) or a paperwork mistake (at best).  Sure glad our state AG is putting his personal time in on this one.

I do not know Arizona's forfeiture laws, but if they are like most other states', they probably allow state authorities to keep the seized money to use as they please, an awfully large incentive for prosecutorial abuse.

Radley Balko has been on Mississippi state medical examiner Steven Hayne's case for years.  He has gathered a fair bit of evidence that Hayne is not only an unqualified hack, but that he has a history of saying anything and everything, no matter how bizarre, that a prosecutor wants to hear in court to get a conviction.

The case of Jimmie Duncan is as bad as any.  In this case, Hayne and his "dental expert" Michael West are seen on video mutilating an unmarked corpse with castings of Duncan's teeth in order to manufacture evidence for a conviction.  Balko has the story, lots of links, and the video here.

The case would be troubling even if Hayne was just a one-off problem.  But the absolute unwillingness of the state to investigate Haynes and many of the convictions he helped obtain, despite evidence of egregious incompetence and outright fraud, demonstrate that few in government have any interest in policing over-zealous prosecution.  The experience of the few prosecutors like Craig Watkins who are willing to re-open convicted cases when the evidence changes (or evidence of past railroading emerges) lead me to think that lots of innocent men are still rotting in jails.

All this is the major reason why I gave up on supporting the death penalty years ago -- simply put, I don't trust the state to get it right.  Back 25 years ago when I called myself a "conservative,"  I tended, like others on the right, to make exceptions for the untrustworthiness and incompetence of the state when it came to a) the military and b) the police and prosecution.  No longer.  There just is no rational evidence that the incentive problems and abuse of power issues that plague other branches of government don't affect these as well.  Which is not to say there are not honorable people in these institutions  -- its that I would rather have a system in place that didn't assume their were honorable people in these positions to functions correctly.

Postscript: People sometimes argue with me on the military exception above.  They say "look at the US military.   It seems so powerful and competant in battle.  It pulled off Omaha beach.  And Desert Storm."

Well, yeah, but the thing is, it is only competing with other government-monopoly operations.  Its like saying the US post office is better than the French post office, or that Amtrak kicks butt on the Mexican National Railway.

As to D-Day, well, there are few opportunities in private life to demonstrate the heroism under fire that was common on Omaha Beech, but logistically, was it anything special compared to what is routine today?  I won't let myself get caught comparing apples and oranges, but I have seen the Air Force's logistics system and it is a sad joke compared to Wal-Marts restocking of 100,000 sku's every day in 10,000+ stores around the world.

Apparently, the State of Texas is still trying to figure out what to do with those 400+ kids rounded up at the YFZ Ranch.  I don't really know enough about the case to comment on whether these kids were victims or not, though from reading this the evidence looks thin.

Here is my concern.  About 15 years ago I sat on a jury in Dallas.  The particular case was a child abuse case, with the state alleging a dad had sexually assaulted his daughter.  The whole case took about 3 days to present and it took the jury about 2 hours to find the guy innocent, and it took that long only because of one holdout.

The reason we found him innocent so quickly is because it became clear that the state had employed Janet Reno tactics (the Miami method, I think it was called) to put pressure on the child over a period of 6 months to break her out of her position that her dad had done nothing.  (By the way, is anyone else flabbergasted that Janet Reno, of all people, is on the board of the Innocence Project?).

Anyway, the dad was first arrested when the teenage babysitter told police that the daughter was behaving oddly and it seemed just like a story she had seen on Oprah.   Note, the babysitter did not witness any abuse nor did the girl mention any abuse to her.  She just was acting up one night.  At trial, the babysitter said her dream was to have this case propel her to an Oprah appearance of her own (I kid you not).

On that evidence alone, the state threw the dad in jail and starting a 6 month brainwashing and programming process aimed at getting the girl to say her dad abused her.  They used a series of negative reinforcements whenever the girl said dad was innocent and offered positive reinforcements if she would say dad had said X or Y.  Eventually, the little girl broke and told the state what they wanted to hear, but quickly recanted and held to the original story of her dad's innocent, all the way through the trial.

So, as quickly as we could, we set the dad free  (the last jury holdout, interestingly, was a big Oprah fan).  No one ever compensated for states abuse of the dad, and perhaps even worse, the states psychological abuse of his daughter.  I know nothing of what became of them, but I hope they are all OK.  I guess its lucky he did not get convicted, because while the Innocence project has freed a lot of people in Dallas, it sure is not going to work on this type of case with Janet Reno on its board.

Coming back to the YFZ case, I am worried that the state seems to be wanting to hold the kids for as long as possible, presumably to apply these methods to start getting kids to adopt the stories of abuse prosecutors want to hear.  In some ways, the YFZ case is even more dangerous from a prosecutorial abuse standpoint.  That is because there are a large number of people who think that strong religious beliefs of any type are, well, weird, and therefore are quicker to believe that other weird behavior may also be present.

In a previous post I lamented that Eliot Spitzer was lauded by the press as "Mr. Clean" despite (or because of) abuse of power, but was forced to quit within days of revealing an episode of consensual sex.  If only abuse of power had such an immediate impact on politicians as sex:

The Justice Department and the housing department's inspector general
are investigating whether the [HUD] secretary, Alphonso R. Jackson,
improperly steered hundreds of thousands of dollars in government
contracts to friends in New Orleans and the Virgin Islands.

On Wednesday, Democratic lawmakers also raised concerns about
accusations that Mr. Jackson threatened to withdraw federal aid from
the director of the Philadelphia Housing Authority after he refused to
turn over a $2 million property to a politically connected developer.

Update:  More on the press and its support for prosecutorial abuse of power, in Spitzer's case and others.

With Eliot Spitzer going down for what shouldn't be a crime (paying for sex) rather than what should be (abuse of power), now is as good a time as ever to focus on prosecutorial abuse.  As in the case of Spitzer, the media seems to have little desire to investigate overly-aggressive prosecution tactics.  In fact, in most cities, the local media cheer-leads abusive law enforcement practices.  It makes heroes of these abusive officials, whether their abuses be against the wealthy (in the case of Spitzer) or the powerless (as is the case of our own Joe Arpaio here in Phoenix).

Tom Kirkendall continues to be on the case of the Enron prosecution team for their abuses, which have been ignored in the media during the general victory dance of putting Jeff Skilling in jail and running Arthur Anderson out of business.  But, guilty or innocent, Skilling increasingly appears to have solid grounds for a new trial.  In particular, the Enron prosecution team seems to have bent over backwards to deny the Skilling team exculpatory evidence.  One such tactic was to file charges against every possible Skilling witness, putting pressure on them not to testify for Skilling.  Another tactic was more traditional - simply refuse to turn over critical documents and destroy those that were the most problematic:

The controversy regarding what Fastow told
prosecutors and FBI agents who were investigating Enron became a big
issue in the Lay-Skilling prosecution when the prosecution took the
unusual step of providing the Lay-Skilling defense team a "composite
summary" of the Form 302 ("302's") interview reports that federal
agents prepared in connection with their interviews of Fastow. Those
composites claimed that the Fastow interviews provided no exculpatory
information for the Lay-Skilling defense, even though Fastow's later
testimony at trial indicated all sorts of inconsistencies. 

However,
I have spoken with several former federal prosecutors about this issue
and all believe that the government has a big problem in the Skilling
case on the way in which the information from the Fastow interviews was
provided to the Lay-Skilling defense team. None of these former
prosecutors ever prepared a composite 302 in one of their cases or ever
used such a composite in one of their cases. The process of taking all
the Fastow interview notes or draft 302's and creating a composite is
offensive in that it allowed the prosecution to mask inconsistencies
and changing stories that Fastow told investigators as he negotiated a
better plea deal from the prosecutors. 

Similarly,
the Enron Task Force's apparent destruction of all drafts of the
individual 302s of the Fastow interviews in connection with preparing
the final composite is equally troubling. Traditionally, federal agents
maintain their rough notes and destroy draft 302s. However, in regard
to the Fastow interviews, my sense is that the draft 302s were not
drafts in the traditional sense. They were probably finished 302's that
were deemed "drafts" when the Enron Task Force decided to prepare a
composite summary of the 302's.

Note that showing how a person's story has changed over time is a key prosecution tactic, but one that is being illegally denied to Skilling.  Apparently Skilling's team has now seen the actual interview notes, and believe they have found "a sledgehammer that destroys Fastow's testimony" against Skilling.  Stay tuned, a new trial may be on the horizon.

Tom Kirkendall has stayed on the case of Enron Task Force prosecutorial abuse even while most of the world has turned away, apparently believing that "mission accomplished"  (ie putting Skilling in jail) justifies about any set of shady tactics.

But the evidence continues to grow that Skilling did not get a fair trial.  We know that the task force bent over backwards to pressure exculpatory witnesses from testifying for Skilling, but now we find that prosecutors may have hidden a lot of exculpatory evidence from the defense.

Meanwhile, continuing to fly under the mainstream media's radar
screen is the growing scandal relating to the Department of Justice's
failure to turnover potentially exculpatory evidence to the defense
teams in two major Enron-related criminal prosecutions (see previous
posts here and here). The DOJ has a long legacy of misconduct in the Enron-related criminal cases that is mirrored by the mainstream media's myopia in ignoring it (see here, here, here, here and here).

This motion
filed recently in the Enron-related Nigerian Barge criminal case
describes the DOJ's non-disclosure of hundreds of pages of notes of FBI
and DOJ interviews of Andrew Fastow, the former Enron CFO who was a key prosecution witness in the Lay-Skilling trial and a key figure in the Nigerian Barge trial.

Enron Task Force prosecutors withheld the notes of the Fastow
interviews from the defense teams prior to the trials in the
Lay-Skilling and Nigerian Barge cases. If the Fastow notes turn out to
reflect that prosecutors withheld exculpatory evidence or induced
Fastow to change his story over time, then that would be strong grounds
for reversal of Skilling's conviction and dismissal of the remaining
charges against the Merrill Lynch bankers in the Nigerian Barge case.

The post goes on to describe pretty substantial violations of FBI rules in handling interviews with Fastow, including destruction of some of the Form 302's summarizing early interviews.  The defense hypothesis is that Fastow changed his story over time, particularly vis a vis Skilling's involvement, under pressure from the task force and the 302's were destroyed and modified to hide this fact from the defense, and ultimately the jury.

Ken Lay and Jeff Skilling were convicted on numerous counts of fraud but were acquitted on most counts of insider training.  Professor Bainbridge has some quickie analysis.

I worked for Jeff Skilling for a brief period of time at McKinsey & Co.  Jeff was easily one of the smartest men I ever met, as well as the most detail-oriented.  It was this latter quality that forced me to concede that he was probably lying to Congress back when he said "I didn't know any of this stuff was going on in my organization."  Whatever else they did, Lay and Skilling will never be forgiven by my family for sucking in a couple of our family friends who were not business people (doctors and such) onto the Enron board, perhaps as dupes who had no hope of crying foul at the complex business machinations that were taken place.  Whatever the reason, our friends will spend the rest of their lives dealing with Enron lawsuits.

My only regret in this case is that I hate seeing some pretty scary prosecution practices get rewarded.  The guilt of Lay and Skilling does not change the fact that we need to start reigning in heavy-handed prosecutors, and disavowing the Thompson memo would be a good start. Update: Tom Kirkendall has much more on prosecutorial abuse in this case and possible appeal points.

I have written several times on prosecutorial abuse, most recently in this post on the Justice Department's current practice of forcing companies to waive attorney-client privilege and punishing companies that help their employees seek legal council.

The WSJ($) editorializes about a recent division by Judge Lewis Kaplan in the KPMG trial.

Those steps were extraordinary in their attempt to
pressure corporate executives: They include waiving attorney-client
privilege to give investigators access to internal documents and
cutting off accused employees from legal and other forms of support. In
short, the Thompson memo said that companies under investigation are
expected to surrender any right against self-incrimination and cut
their accused employees adrift.

In one sense, the memo's guidelines are just that --
internal guidelines for prosecutors. But as a practical matter, only a
rare CEO will risk the death sentence that a corporate indictment
represents. So "cooperation" as defined by Justice is hardly optional.
It was on this point that Judge Kaplan took Assistant U.S. Attorney
Justin Weddle to task last week. When Judge Kaplan questioned the
fairness of pressuring companies to throw their employees overboard,
Mr. Weddle replied that companies are "free to say, 'We're not going to
cooperate.'"

"That's lame," the judge retorted. He then asked Mr.
Weddle "what legitimate purpose" was served by insisting that companies
cut their former employees off from legal support. Companies under
investigation, Judge Kaplan noted, ought to be free to decide whether
to support their employees or former employees without Justice's "thumb
on the scale."

Mr. Weddle replied that paying the legal fees of
former employees charged with crimes amounted to protecting
"wrongdoers." This prompted the judge to remind the young prosecutor
that the accused are still innocent until proven guilty. He also
reminded Mr. Weddle that the Constitution's Sixth Amendment guarantees
the right to counsel. And for good measure, if the government is
confident in its case, it shouldn't be afraid to allow "wrongdoers"
access to an adequate defense.

Its good to see these practices starting to get some judicial scrutiny.  There is unfortunately no real political constituency in this country to get worked up about this kind of stuff.  Left-leaning groups tend to be the first to challenge police and prosecutorial abuses of power, but have little interest in doing so when the target (ie corporations) is someone they have no ideological sympathy for.  And right-leaning groups tend to be strong law-and-order types that feel the need to go out of their way to be tough on recent corporate transgressors to avoid the accusation that they are in bed politically with white collar criminals.

The firm of Arthur Anderson was put to death by government prosecutors.  Unlike human beings, Anderson was killed without ever receiving a trial, and was dead long before any appeal was mounted.  Many a media tear have been shed for Enron employees who lost their savings in the Enron 401-K, where they invested in Enron by choice, but I have seen few people sympathizing with the tens of thousands of people who lost their savings in the AA collapse, the vast vast majority of whom never touched the Enron account.

Mary Morrison has a nice analysis (pdf) of why Anderson was probably killed unfairly.  Her central argument is that the main fraud at Enron was perpetrated in the off-balance sheet special purpose entities, or SPE's, when third parties put up capital that the SPE called equity, but was in fact really a loan with a verbal (non-written) promise to repay by either the entity or Enron.  By disguising a loan as equity, and by by disgusing related parties as arms-length investors, Enron was able to avoid consolidation of the SPE's with its financial statements.

Ms. Morrison argues persuasively that since Anderson was not the auditor for any of these SPEs, it had no way to uncover the true nature of these sham financing agreements, since these SPEs were effectively different corporations with different auditors.  AA had to rely on signed statements by each deal's principals that the financing for the SPE was as described (which is standard practice in this type situation and is considered to represent adequate due dilligence).  Anderson had no way to know what was going on in the SPE's, and since the SPE's were separate legal entities from Enron, it had no legal right to poke around in these entities and of course no subpoena power.  It had no way to know about the hidden verbal second part of the financing agreements.  She argues AA was a victim of the fraud and of false statements by Enron and the SPE managers and investors. 

It is interesting to note that the prosecution of the Enron case is prosecuting Enron managers right at this minute for making such fraudulent statements to AA and for hiding the nature of the SPE's from AA.  In other words, the prosecution team that first gave AA the death penalty for allegedly conspiring with Enron to hide their problems is now prosecuting Enron managers on the legal theory that AA was innocent and duped by the managers, which was AA's defense before they were wiped out.

Tom Kirkendall has more on AA's martyrdom here.  He also continues his scary series of articles on prosecutorial abuse here.  The pressure brought to bear to prevent defense witnesses from testifying is particularly frightening.  When you read this, you are really left wondering how the auditors for the SPE's, which may include KPMG, escaped unscathed (in fact escaped richer, since they got their share of the now-defunct Anderson's clients) when Anderson was put to death.