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KGB-ing America

The late sixties, 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."


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 eyewitnesses, informants who are co-defendants, informants who precipitate charges by reverse stings. We are confronting 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 witnesses—paid $10,000 for one witness, $20,000 for another, and $50,000 for another for their testimony—it would be laughable from a jury's point of view. They would soundly reject that type of witness; we would be called obstruction-of-justice defendants and the lawyers would be 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 twenty years or ten years knocked off their sentences. They get to settle in a new lifestyle with a new identity and obtain a job or relocation 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 case 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, independent judiciary is eroding.

It's something we confront every day. People in the subculture experience paranoia because they never know who's a spy or an informant. There's paranoia in the court system because you never know whether your codefendant is recording you. There's paranoia among the lawyers because you never know whether your client is rolling behind your back and recording you. In my opinion, the singularly most unexpected and singularly most devastating aspect of our system of criminal jurisprudence is the use of the informant.

The grand jury

Back in the sixties, the government utilized the grand jury to some small degree. Today, every federal case󈠳.9 percent of all federal cases—involves indictment by grand jury. That means no preliminary hearing, no discovery prior to indictment, no confrontation, no lawyer present on behalf of the accused. The accused isn't there, and doesn't see, hear, 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 sentencing

"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 sixties that one-third of the adult black population in the United States of America would be 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 sixties: the 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 sixties. 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, a more equal division of resources. Those motifs of the sixties 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.


The notion of bail is vastly eroding. We have a concept now built into the law called "preventative 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 jurisprudence; we have a strong history of not holding people in custody until their guilt or innocence has been determined. That's not true any more. 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 sixties, 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!" "We're losing constitutional rights daily. 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 sixties, and swing the pendulum back. Because if the pendulum doesn't swing —judicially and court-wise—we are approaching a totalitarian state never before experienced in this country.