DESPERATELY SEEKING JUSTICE

When Snitch Testimony goes wrong - the government makes it right.

Whenever a person, any person, is accused and convicted of a crime, the great majority of people, even relatives, believe he must have done something wrong.  Why else would somebody say, "he gave me the drugs" if he didn't?   Well, let's take a look at that.  I'll use Ivan Eberhart's case as an example.

In 1998, Ivan Eberhart was a 29-year old church-going, God-loving husband and father with a good job and an entrepreneurial spirit.  He had no previous record, he didn't drink, smoke or do drugs.  He had tried his hand at a record store, but couldn't compete with the prices of the Best Buy's and Circuit City's, so he gave it up.  However, while fixing the little store up, he realized his talent for carpentry,  and after incorporating his business and getting the necessary insurances and licenses, he and his partner got a lucrative contract with a development company rehabbing their buildings and apartments.  A young man, (who also happened to be a gang-banger, but who knew?) who was a nephew of one of Ivan's friends bought the record store and made arrangements to pay Ivan a monthly sum for the inventory and fixtures. Five months later, this gang-banger was caught in a  sting, delivering drugs to a confidential informant.

Now one thing about gangs, they are lucrative organizations, but unlike most organizations they don't acquire their wealth through dues or fundraisers.  They raise their money through the sale of illegal drugs. That's their business.  Another thing about gangs, they don't use freelancers.  The people who sell the drugs, distribute the drugs and make money from the drugs belong to the gang.   But when it comes to giving credit for who does the job, the gang/drug business is not like other businesses.  If you're in the banking business, and someone gets a loan from your bank, if you didn't give it to them, another banker did.  You wouldn't say, well Joe Blow who works at the drugstore gave him the loan.  But in the gang/drug business, when you get caught with illegal drugs you never, ever, ever give the name of a fellow drug member, because they will not only get you, they will get your wife, your children, and even your parents if you're locked up and they can't get to you.  And even if you're locked up, they'll find a way to get to you. Now some gang-bangers will take the whole rap on themselves, and do the time.  But this particular gang-banger phoned his attorney, who took him directly to the government prosecutor, who promised to be lenient if he'd give the name of his "supplier."  So not being really crazy enough to give the name of a fellow gang member, he gave the name of Ivan Eberhart  (who never belonged to a gang in his entire life)  -- after all, Ivan supplied him with thousands of dollars worth of inventory and fixtures; and every once in awhile, he even supplied him with mixed CDs to sell in his record store.

Now, it wasn't like he could say "Ivan Eberhart gave me these drugs one day, some time"  no - he had to be very specific.  See, the agents caught the guy who became the confidential informant on December 14, 1998.  The agents witnessed the guy call the gang-banger on the evening of December 14, 1998.  The agents gave the confidential informant the money to give to the gang-banger that evening, and then on the morning of December 15, 1998, the agents sat in front of the confidential informant's home and watched the gang-banger come and get the money and leave.  On the following morning, December 16, 1998, the gang-banger was taped delivering the cocaine to the confidential informant, and was arrested.  That means when he said, Ivan Eberhart delivered 2 kilos of cocaine to me in River Oaks on December 15, 1998 at 5 pm - he knew he only had that window of time within which to work.

Of course, it would have been good for him if he could have asked Ivan, "what were you doing around 5 pm on December 15, 1998?"  And, Ivan would have told him that his house was burglarized that morning, he phoned the police around 11:30, the police arrived around 11:45 and were still there around 1:30 when his mother (who he lived with) got home;  the evidence technician got there around 2:30 and stayed until about 4:30 and after he finished dusting the entire house for prints, he gave the Ace Hardware Repairman, who had arrived about 4:00 pm - permission to touch things so he could measure the window that was broken, as well as the windows around the house in order to get burglar bars.  The neighbor came to the house about 5:30 pm, just as the repairman was going to Ace Hardware to get the glass and Home Depot for the burglar bars. 

They all came to court -- the police officer, the evidence technician (who was a hostile witness because he was a friend of the DEA agent, but still, had to tell the truth), the repairman, the neighbor and Ivan's mother - that would be me.  And based on our testimony, the jury must have agreed that it was impossible for Ivan to have been 13 miles away at River Oaks, giving drugs to the gang-banger, at 5 pm or anytime thereabouts  (the repairman testified that he didn't finish until after midnight, and he still had to return the next morning because he bought the wrong kind of bars for the kitchen).  So the jury acquitted him of delivering the 2 kilos to the gang-banger.

The gang-banger who did all of the accusing, never came to trial.  The government prosecutor wouldn't let him.  First of all, he turned out to be a huge liar with a bad memory.  His first lie was that Ivan Eberhart delivered 2 kilos of cocaine to him at River Oaks Mall on December 15, 1998.  And the agents used that first lie to fashion Ivan's alleged confession.  They  produced an affidavit saying Ivan Eberhart had confessed to them  that he delivered 2 kilos of cocaine to Charles Bolden in River Oaks on December 15, 1998 - but they didn't write down the confession so he could sign it, nor did they video or audio tape record it and they lost their notes. The second time they met with the gang-banger he changed his story.  He must have forgotten he said River Oaks, because now it was 61st and Kenwood.  Then the next 5 or 6 times his stories became progressively different as to place, date, time and even amount.  Finally, about three months before the trial was scheduled, he told them he lied about the 5 kilos (he had upped it to 5 kilos in about the third report and in his own habeas corpus petition he said the government "had convinced Petitioner (that was him) that 5 kilos from a supplier would get him the 2 and a half year sentence they promised.") When asked why did he lie , he said because he was scared.  Scared of what?  The gang-banger who actually gave him the drugs?  Probably.  But in any case, his testimony would no longer line up with the so-called confession. However,  his original lie would - so that's what they used.  The government prosecutor cleverly brought it in through the agents, and when the defense attorney cried "foul!  that's hearsay!"  the government simply said, "we're not presenting this for the truth." 

Ivan Eberhart was acquitted of the charge the government tried so hard to prove.  And the charge that wasn't even mentioned until closing arguments -- the conspiracy charge --strangely, that's the one the jury convicted him of.  How?  That's another story.   To be continued . . .

 

The 7th Circuit's "Special Verdict": Done in the dark ... Coming to light

I am so pleased that, thanks to attorneys for Conrad Black, former newspaper magnate, a little known tactic, used by the Seventh Circuit to get around pesky issues like due process and Constitutional rights, is finally coming to the attention of the Supreme Court of the United States.  The Court granted  certiorari in Black's case, and oral arguments are scheduled for December 8, 2009.

Why am I smiling?  Because the Assistant U.S. Attorney's in the case of my son, Ivan Eberhart, used this tactic to increase his sentence to a 10 year minimum.  Ivan recently filed his cert petition, pro se, in which one of his questions asks: "Whether the Seventh Circuit erred in determining that using a special verdict form as an end-run around this Court's rulings in Apprendi and Booker, is not a substantial showing of the denial of a constitutional right."

In Conrad Black's cert petition, his question was quite different.  "Whether a Court of Appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules."  In case there is a need for clarification, an explanation precedes the question (I didn't know you could do that), which includes this statement: "...in the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government's bid to have the jury return a "special verdict," a procedure not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant's Sixth Amendment rights."

The two questions, though different in many aspects, both name the  "special verdict" as the culprit.  The Seventh Circuit brags of a 98% conviction rate, and there is no doubt that using the "special verdict" and other innovative tactics has helped them maintain that record.  A review of Black's cert petition in relation to the special verdict  can be found at http://blog.gpoelaw.com/conrad-black-and-special-verdicts/ - the Federal Criminal Practice Blog authored by Gregory Poe. 

I will briefly explain how the "special verdict" determined the outcome of Ivan Eberhart's sentencing.

1. Since the snitch, Charles Bolden,  was caught delivering 2 kilos and said Ivan Eberhart sold them to him (he later admitted he lied) both Bolden and Ivan were indicted for conspiring with each other, and the only quantity in the indictment was the 2 kilo amount in the distribution charge (Count 2, of which Ivan was acquitted.), 

2. The grand jury, which must approve the indictment, rejected the Assistant U.S. Attorney's request to indict for 5 kilos because a grand juror said "we don't see five."

3. The AUSA threatened to get a superseding indictment against Ivan Eberhart for 5 kilos.  This never happened, but two year's later, and three month's after Eberhart's trial and conviction, lo and behold we discovered that Charles Bolden, the snitch, had received a superseding indictment for 5 kilos back around the time of the threats, and on his superseding indictment Ivan Eberhart's name was dropped as a co-conspirator.  So I'm going to assume that this grand jury declined to supersede Ivan's indictment to charge 5 kilos as the AUSA requested.

4. At trial, the AUSA never, ever brought the idea to the jury that "contrary to what the indictment says, we really are holding this defendant responsible for 5 kilos, not 2."  Maybe it's because there was no evidence to present that would prove such a claim at all, let alone beyond a reasonable doubt.

So, having missed two possibly three opportunities to legally charge the 5 kilo quantity to Ivan Eberhart, at the end of the trial, in closing statements, the AUSA informed the jury that they would be receiving a "special verdict form" and instructed them to check off "5 kilos or more."  So the jury obediently followed his instructions, even though they acquitted him of the 2 kilo charge. And the judge said in sentencing that he gave no credence to the alleged statements of the snitch, and the alleged undocumented, uncorroborated confession of Ivan Eberhart - neither of which described a conspiracy, anyway.  So he said in order to find a quantity "I would have to look elsewhere, and where I look is to the 2 kilos" (mind you, he was acquitted of delivering those 2 kilos).  The judge went on to admit that "2 kilos do not make 5" but then curiously stated that he could see how the jury could have determined "beyond a reasonable doubt" the 5 kilo quantity. Beyond a reasonable doubt?  When no evidence was presented?  No arguments were made?  So, the "special verdict" served the function of causing the checking off of a particular quantity, without any evidence that the defendant had anything to do with any quantity, to become proof beyond a reasonable doubt.  And it served a more sinister function of increasing Ivan Eberhart's sentence for a conspiracy that was never proven to exist, from a 5 year maximum to a 10 year minimum.

In Attorney Gregory Poe's blog, he states that the basic problem with the "special verdict" is ... "it is not rooted in any federal rule."  Although Black's petition's primary focus is on another issue, Poe also says that "the special verdict issue deserves close attention as well."

I, too, hope that in both the Black case as well as Ivan Eberhart's case, the Supreme Court justices will take a long, hard look at this procedure which (and this bears repeating) is not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant's Sixth Amendment rights. 

On the resignation of Van Jones: I am outraged!!!

The Glen Becks, Rush Limbaughs, Sarah Palins, and Sean Hannity's of the world thought they could get away with their lies, their bigotry, their race-baiting and their constant denigration of the President of the United States without any repercussions.  Then along came a powerful organization -- ColorofChange.org.   This organization showed what unity can do.  They showed that when people come together and stand up for what they believe, change can happen.   They used Glen Beck's utter disrespect for  the President of the United States, his lies and his dangerous race-baiting as the kind of behavior we do not and will not take.  President Obama should have felt empowered by this show of support.  Evidently he wasn't, because when Glen Beck and his cronies retaliated by calling Van Jones a Czar; by accusing Van Jones of being a communist, by causing millions of ditto-heads who don't know a thing about Van Jones except that he is an African American (and that's enough for most of them) to call for this man's head,did my President (whom I love)  use his power to stand up to the haters and say, "this is a good man who has received awards and accolades for his work with "Green jobs?" (Remember: "Helluva job Brownie"?)  Did he say, I didn't hire him for his opinion about Republicans, nor does it matter what petitions he signed during his lifetime? (By the way, the petition was to Congress to ask for an investigation into the claims of government involvement.  Why are corrupt right-wingers so afraid of investigations that can prove once and for all that all the conspiracy theorists are dead wrong, or are they?)    No, he gave a vote of confidence to Glen Beck by expressing no confidence in Van Jones, and since Van Jones was also a co-founder of ColorofChange.org, which is one of the charges Beck made against him, wasn't this also a vote of no confidence toward the very organization that caused 40-something sponsors (and counting) to walk away from the Glen Beck show because of Glen Beck's disrespect for the President of the United States? 

Will this President follow the direction of Bill Clinton, whose direction was to turn away from any hint of loyalty toward any  of his appointees, nominees or staff once they were  criticized by his right-wing enemies?  Will his presidency follow the path of Bill Clinton who got practically nothing done during his eight years in office because he was too busy fighting right-wing accusations, investigations, conspiracy theories and rumors?  (Well, he did get some things done -- but they came right out of the right-wing wish list -- things like "welfare reform"; "unhitching habeas corpus"  "three strikes and you're out"  "don't ask, don't tell".)  But what did he get done for the people who voted him in? 

In his election speech, President Obama made a moving promise.  He said, and I paraphrase "to those of you who didn't vote for me, I will be your President, too."  That is very big of you Mr. President, but what about those who did vote for you?  Will you be our President, too?

There is a prolific young man by the name of James Clingman, whom I've always known as an economic genius.  But based on the article he recently posted on his own blog and which also appeared in the Electronic Village blog, his genius goes beyond economics.  I believe our President  (whom I really love) can take a lesson in politics from Mr. Clingman:

Blackonomic$: Can't We All Get Along? Posted: 04 Sep 2009 01:15 AM PDT Blackonomics By: James Clingman Can’t we all get along? Looks like Rodney King is living in the White House these days, y’all. Before you start writing your letters and e-mails to me for having the nerve to say something negative about our President, consider our current situation. We need to open our eyes and our minds to the reality of politics, once and for all, by understanding the nature of the beast. You’ve heard the story about the frog that the scorpion get on his back for a ride across the pond. The frog said he would do it if the scorpion would not sting him. The scorpion assured the frog he would not harm him in return for the ride across the water. When they reached the other side, the scorpion stung the frog; and as the frog lay dying he said, “You promised you wouldn’t sting me,” to which the scorpion replied, “I was just being true to my nature.” Lying, backstabbing, grandstanding, accepting bribes, assassinating one’s character, cheating, stealing, cursing, and fighting are among the characteristics on display among many of our politicians. In other words they are a mirror of society in general. Too often we hold them up as paragons of integrity, ethics, and morality, only to be let down when they fall from grace. We send them to Washington with more financial security than most of us could ever dream of having, and they pass laws that adversely affect us but have no effect on their lives. They debate Social Security and healthcare but are not required to participate in the same programs they legislate for us. They determine how we will live, without having to be subjected to those same rules, and without having to pay a price for being wrong. What a life, huh? Now we have a President who seems to think he can change the political landscape; he seems to believe that hundreds of years of political gamesmanship can be swept aside, and common sense will prevail. He subscribes to the notion that all he has to do is make a speech, do a town hall meeting, or an interview explaining his agenda, and all will be well in Washington and in this country. He seems to be asking the Rodney King question over and over again. And coming from the President of the Untied States, someone who knows how politics works, it sounds even more ridiculous. Barack Obama was swept into office by a riptide of emotion, hope, and exasperation at the previous eight years. He was ballyhooed and ushered in on the fragile wings of instant stardom and fame, so much so that it seems he even believed the hype. But, now that he is in office, and the crazies have come out of woodwork, he finds himself having to respond to the ire of many of the same folks who hailed him as their new chief on January 20, 2009. Obama is busy plugging holes is the dike and is fast running out of fingers. He was forced to take time to have a beer with two guys who had a spat, and offered it to us as a teachable moment that would demonstrate we can indeed all get along. He is on the road explaining his healthcare plan, trying desperately to get his opponents to get on board and get along with him as well. He is attempting to be all things to all people, albeit disciplinary when it comes to Black people; but that’s another article. All of this in his utopian endeavor to have us all get along. Memo to President Barack Obama: After Rodney King was beaten senseless by those police officers, all he could utter is “Can’t we all get along?” All he could muster the nerve to say before the cameras of the world, before a public shocked beyond their imagination at what happened to him, recorded for everyone to see, was “Can’t we all get along?” It was his time to shine, his time to teach, his time to enlighten; but he blew it big time and squandered his fifteen minutes of fame with that immature, naïve, rhetorical question. In this country, Mr. President, as you well know, the political system of which you are now at least the titular leader is a system grounded in rancor and adversity, a system that wreaks of discord, a system comprising childlike adults who always want their way, and a system based on a 250-year struggle for the ultimate aphrodisiac: power. You are in charge of a system whose participants have fought like cats and dogs over every little thing, and now you pose the question, “Can’t we all get along. After years of being beat up, all while watching it take place before our eyes on the evening news; most of the folks who elected you are not down with the Rodney King inquiry. We expect much more from you. Get some backbone, stand up to the political thugs and do the right thing. Don’t go down as simply a “big-baller,” be a true “shot-caller.” And how about looking out for Black folks every now and then too? After all, you are the President. Politicians have been battling for centuries, and have demonstrated in no uncertain terms that the answer to the question, Can’t we all get along?” is an emphatic, unequivocal, unapologetic, “NO. James E. Clingman, an adjunct professor in the University of Cincinnati's African American Studies Department, is former editor of the Cincinnati Herald newspaper and founder of the Greater Cincinnati African American Chamber of Commerce. He hosts the radio program ''Blackonomics'' and has written several books. To book Clingman for a speech or to purchase his books, go to his Web site or call him at (513)489-4132.

Victory for Troy Davis!!!!

Today, the Supreme Court ordered a new hearing for federal death row inmate,Troy Davis.   For those who don't know, Troy Davis has been on death row for 20 years for the murder of a police officer. A murder that, according to evidence presented to an appeals court by his federal criminal attorneys, Troy Davis never committed.  Nine federal witnesses initially testified at a jury trial before the district court that they witnessed Troy kill the police officer, but in recent years seven of them have recanted their testimony, and said they were coerced by prosecutors to say Davis did it. Additionally, three witnesses who did not testify named someone else as the real killer.  Troy's attorneys brought this information before a federal appeals court, as well as the State Supreme Court, only to be rejected. 

Troy's sister, Martina, along with the Chicago Committee to End the Death Penalty have worked long and hard, garnering the support of thousands, including President Jimmy Carter, Pope Benedict XVI and Bishop Desmond Tutu.   The majority opinion was written by Justice John Paul Stevens.  As I read what he wrote in his opinion, it saddens me that he will be retiring soon, and although President Barack Obama is at the helm to appoint his replacement, which will result in another liberal justice -- we can only hope that whoever is chosen is as fair and courageous as Justice Stevens.  My vote is for Appellate Court Judge Diane Wood.  Justice Stevens wrote that "the substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."    Note, an evidentiary hearing is far from a trial, in that the trial judge gets to decide what he may have already made up his mind to.  So in that respect, it's not a complete victory. But in this case, even a partial victory is a victory. 

Of course, the usual anti-justice dissenters, dissented from the majority's opinion.  Guess who?   Antonin Scalia and his shadow, Clarence Thomas (it would be somewhat of an oxymoron to put the word "Justice" in front of their names.)

Let's hope this marks the beginning of the United States becoming the fair and just country its forefathers meant it to be.  We can only pray.

Let’s have a logical discussion about the legalization of drugs

It’s hard to believe that a country with such advanced technology, a country that has sent men and women to the moon and has conquered so many diseases, still continues with the criminalization of drugs,  while millions (I hope I’m exaggerating) continue blindly marching to the tune of a failed war on drugs.

One argument I’ve heard against it goes like this:  “Taking drugs is not an individual’s choice – because people cannot do anything they want to do. “   Yes they can and they will -- and we cannot legislate morality.  It's been proven over and over that it doesn't work.

Whether we like it or not, using drugs is an individual’s choice.  However, the average individual is not going to say, “let me go find some cocaine or heroin, so that I can mess up my life.”  They are not going to go looking for drugs.  It is the drug pushers who come looking for them.  Why?  Because drugs are illegal, and anything that is illegal is sold in the black market, and anything that is sold illegally can be marked up a thousand percent because there are no restrictions and no regulations.  So, if a drug dealer or pusher receives four or five thousand dollars a day for selling drugs to a few individuals, he is going to do whatever is necessary to increase his customer base so that next week he’ll be getting 10 or 20 thousand dollars a day.  His strategy is simple.  You begin by giving someone free drugs.  Before long they will get hooked (especially since drug dealers initially give their marks the finest quality of drugs).  Once they are completely hooked the dealer begins to charge them a little, then a little more, then a whole lot more.  There is no such thing as overcharging when it comes to illegal drugs, remember, they’re illegal in the first place.  Nobody’s going to the Attorney General or the Better Business Bureau to say, “the drug dealer overcharged me for some cocaine.”  Or can you imagine a drug addict saying, “your price is too high, I’m not paying that?”  What they will say is, “Let me owe you.”  And the drug dealer will gladly do that, because they know that the addict will do anything to pay them – they’ll steal from their mother, they’ll sell their babies and their bodies, they’ll lie, cheat, and even kill.  And if they don’t come up with the money, the drug dealer isn’t going to report them to the credit bureau or put a lien or their paycheck (by this time, they’ve lost their job, anyway).  No what the drug dealer is going to put is a bullet in their head, and if he is greedy enough, ruthless enough and heartless enough, he’ll kill the addict’s entire family – think, Jennifer Hudson’s 60-something year old mother and 7 year old nephew. 

But how can you say that wouldn’t happen if the drugs  were legal?  Go to the top of this paragraph and read once again from the beginning.  Or, better yet, let’s look at a highly addictive drug that is legal: nicotine.  Do you see any “nicotine pushers” hanging around school yards saying “hey kid, check out this cigarette.”?  No.  And the  kid would probably get addicted to cigarettes a whole lot faster than he would to coke or heroin, but – where’s the profit for the dealer?  If he tried to charge $100 for a pack of cigarettes he’d get laughed right out of the playground. 

But coke and heroin are worse than cigarettes.  Oh, really?  They’re certainly not more addictive.  Have you ever seen an otherwise intelligent human being trying to stop smoking?  My President is one of the most intelligent men in the Universe (as far as I know) and after his agonizing battle to stop smoking, he admits that he still steals a puff every once in awhile.  Plus cigarettes cause cancer.  Cigarettes cause lung cancer, throat cancer, liver cancer, bladder cancer – that’s all I know of.  I asked Google if cocaine causes cancer.  The answer:  Cocaine itself doesn’t cause cancer, but the cocaine sold on the street is being cut with carcinogenic painkiller phenacetin.    Of course, if it was legal it wouldn’t be sold on the street – now would it?  Also, does smoking cocaine or heroin or even marijuana  cause second-hand smoke that causes cancer in non-smokers, as cigarette smoke does?   And what about alcohol which is legal, which is addictive and which causes cirrhosis of the liver and thousands of deaths by drunk drivers? 

But people don’t overdose on cigarettes or alcohol.  Could that be because there is only so much nicotine in each cigarette, and the average person only smokes one cigarette at a time with at least 15 minute intervals between smokes, sometimes longer, sometimes shorter?  Could that mean that the amounts of cocaine or heroin that a person partakes of at one given time could be regulated, if cocaine or heroin were de-criminalized, and then there would not be any danger of overdosing.  There would be “directions for use” just as there are on the aspirin bottles; even on Valium and Oxycotin.   As for the second part of that question – au contraire, people do overdose on alcohol.

But if heroin or coke was de-criminalized, wouldn’t it be cheaper, and wouldn’t more people be able to buy it?   Yes, but who would be pushing it?  Who would profit from getting more people to buy it?  Whoever manufactured it (and who would that be?) would be subject to the same restrictions as the manufacturers of cigarettes and alcohol.  They would not be able to advertise.  They would not be able to sell to minors. 

In the end, people would still use drugs, just as they still use alcohol and they still smoke.  But how many people are dead because of a gang war over whose selling alcohol or cigarettes in whose turf?  How many people are dead because they belonged to a gang that sold alcohol or cigarettes and they snitched on one of their gang members?  How many innocent people are in jail, because the gang member caught with cigarettes or alcohol would rather snitch on them, then be killed for snitching on a fellow gang member?  Didn’t we learn from Al Capone? Just as ending Prohibition put the bootlegger out of business, ending this drug Prohibition will put the drug dealer out of business -- that is a guaranteed given.

I’d certainly like to hear from readers.  Am I missing something?  Can anyone give me a compelling reason why drugs should continue to be illegal?  Or, is there somebody on my side who can help bolster my argument for legalization?

President Obama's "Skip Gates-Gate"

Watergate is not just the name of a hotel, it's the name of a burglarized hotel.  It's not just reminiscent of a burglary, it's reminiscent of a major presidential blunder.   Which brings me to Skip GatesGate.  First, let me make myself perfectly clear.  I love President Barack Obama.  Everytime I say President Obama, it sends a thrill up my spine (I'll leave the tingle up the thigh to Chris Matthews).   But I love him enough to admit that he is human, and it is well settled that the ability to err is part of what makes us human. 

I have said all that to say, I believe that President Barack Obama erred a couple of times in relation to the Cambridge incident.  To weigh in on it and to express his disagreement with the way it was handled was certainly not wrong.  But, it's the way he did it.  He made it too personal, and therefore, we were left with the impression that he wasn't crticizing the overtly racial profiling, nor the racist overtones of the arrest of Henry Louis Gates, but rather the "stupid" way in which the arrest of his friend Skip Gates was handled.  And, if we didn't know that he was a personal friend, he made sure we knew because he called him by his nickname, "Skip." 

Although it was good that he weighed in on this at all, I can't help but wonder why he never weighed in on the nationally-known dilemma of Clarence Aaron, who at the age of eighteen, was taken out of college, and given three consecutive life sentences based on the words of a couple of drug-dealing informants, his cousin and another drug dealer.  Clarence's crime was that he introduced the two to each other.  Journalists, lawyers, law professors, TV producers and concerned citizens have been making a public outcry against the injustice of Clarence Aaron's case, as well as the "snitch" and "conspiracy" laws that have locked up a disproportionate number of African American and Latino men and women, and handed them draconian sentences.  Why hasn't President Obama at least made some type of public acknowledgement that he is aware of these injustices and may some day do something about them?  It's not only his personal friends that deserve justice, is it?

How about Troy Davis, the young man from Atlanta who was accused of murder by nine witnesses - seven of whom recanted and said that the two who didn't recant are the real murderers?  I don't know Troy's nickname, but everyone, from the Pope to former Presidents, to prosecutors have stated that Troy Davis deserves another trial. The appellate court turned him down.  The Supreme Court has not granted certiori.  All Troy Davis needs is a word from the President of the United States to free him from death row.  As his execution date draws nearer, the silence of the President is even more deafening. 

But I am still glad the President spoke up for Skip Gates, and called a spade a spade.  What disappoints me is that all it took was an outcry from the Cambridge policemen,  some Republicans, some media and Bill Cosby, and the President was willing to give Sgt. Crawley the benefit of the doubt.  The evidence they presented to bring his guilt of racial profiling into question was that  he had been hand-picked by a Black police captain to teach other white racists how not to profile African Americans.  That's like saying, the man who was caught on tape pouring gasoline over a building and then lighting a match is not an arsonist,because he was hand-picked by the Fire Chief to keep the community safe from fires.  President Obama said that perhaps he should have gotten all of the facts before he spoke.  Well, no one has all the facts but Crawley and Gates, but just the fact that Sgt. Crawley arrested Henry Louis Gates inside of his home is unprecedented and wrong and if it wasn't racially motivated, it sure smells like it.  Even if Crawley didn't recognize Henry Louis Gates as an internationally-known personality whose face appeared on TV screens across the nation hundreds of times,  once Mr. Gates identified himself, that should have been sufficient.  And if after such overtly unprecedented racist tactics, the President is still willing to give him the benefit of the doubt; then why not give the benefit of the doubt to Clarence Aaron, who was never caught doing anything and whom the government admitted did not use nor sell drugs; or Troy Davis, who was never caught doing anything, but is being put to death based on the word of witnesses who recanted and said the prosecutors forced them to lie on Davis; or even my son, Ivan Eberhart, who was never caught doing anything, and was imprisoned for 11 years  for a drug conspiracy that was never proven to have existed,  based on the word of an informant who lied so much he wasn't allowed to testify in court, and who admitted he lied and recanted his accusations?

And now that the press and the police have beat down my President for daring to speak out against a racially-motivated injustic , and caused him  to invite Crawley to the White House with his friend, Skip for a beer, will this make him go to being silent on these issues?  We have been waiting since January 20, 2009 for President Obama to speak out against racially-motivated injustices.  Will he now be afraid to speak out about any other injustice?  Will he let Clarence Aaron spend the rest of his life in prison?  Will he allow  Troy Davis die  -- all because the conservative "law and order" folk have let it be known that they do not want the President of the United States speaking out against any injustice when the recipient of the injustice is a minority?  

Finally,  if President Obama bends so readily to the pressure of numbers of people speaking out and speaking up, then maybe it's time for the opponents of injustice to get the President's attention as we speak up and speak out on behalf of justice.

Not Guilty! But sentenced for the crime anyway.

One of the most horrendous human rights abuses that goes on in the federal courts, goes under the name of "acquitted conduct."   What it means is that if you are acquitted of a crime by a jury, you can still be sentenced for that crime by a judge.  What it should make one wonder is, aren't there enough people locked up for long sentences for crimes which have been proven?  Do they still need to lock up people for crimes which they are innocent of?  Does this drive to lock 'em up for long times have anything to do with the prison stock being the fastest growing stock on the New York Stock Exchange?  And is there any type of conflict of interest in terms of who can own the prison stock?  Can judges, or DEA agents, or Assistant U.S. Attorneys own this stock?  I'd love to hear the answer to that.

Meanwhile, let me tell you some more about the case of Ivan Eberhart (98cr946) and how "acquitted conduct" affected his case.

Ivan was initially charged with posession of a controlled substance, because an informant named Charles Bolden was caught on tape with 1 kilo of cocaine, and upon arrest was offered leniency if he would "give a name" - so he said Ivan Eberhart met him in River Oaks, IL at 9 pm on 12/15/98 and gave him 2 kilos of cocaine.

By the time the government went to the grand jury, the charges were 1) distribution of a controlled substance (delivering 2 kilos of cocaine to Charles Bolden on 12/15/98) and 2) conspiracy to distribute cocaine (and in furtherance of the conspiracy, Ivan Eberhart delivered 2 kilos to Charles Bolden on 12/15/98).

Well, as it turns out, Charles Bolden gave them the "first name that came to his mind" not taking into account that Ivan might have been somewhere else on 12/15/98 at 9 pm (matter of fact from about 11 am to midnight) and could prove it.  Ivan's mother's home was burglarized and so two police officers, an evidence technician, an Ace Hardware Repairman, and a neighbor, and Ivan's mother, all came to trial to testify as to Ivan's whereabouts on that day, at that time.)   The jury found him NOT GUILTY!
I am still trying to figure out how they found him guilty of conspiracy since there was no physical evidence, no surveillance, no co-conspirators, no witnesses, no drugs ever found on his person or in his home or car, no trappings of a drug dealer (he drove a 10-year old car, had a wife and 5 children, a good job, paid taxes, had no substantial savings, had no weapon).  Evidently, the courtroom dramatics were enough - plus, the jury probably figured that "he must've done something, or else he wouldn't be in court."  

Anyway - back to the sentencing.  The indictment charged 2 kilos.  It charged that he conspired with Charles Bolden.   Charles Bolden's indictment charged 2 kilos.  It said he conspired with Ivan Eberhart.   The Assistant U.S. Attorney had wanted it to charge 5 kilos, which meant 10 years instead of 5, but the Grand Jury said "we don't see 5 kilos"   That's in the Grand Jury minutes. 

So then the AUSA (Assistant U.S. Attorney) said to the attorney "If your client doesn't plead guilty, we are going to get a superseding indictment charging 5 kilos."  We he didn't plead.  And they didn't get a superseding indictment for him.   They got one for Charles Bolden - charging 5 kilos, and it no longer said he conspired with Ivan Eberhart. 

But the AUSA was determined to get his 5 kilo-10 year sentence.  So, although nothing was said about the conspiracy during the entire trial (for real) - in the closing statements the AUSA said "now we're going to give you a Special Verdict"  Special Verdict???  That was the first time we'd heard anything about a special verdict.   And we want you to check off "5 kilos or more" if you find him guilty.   So the jury did as they were told. 

But in the sentencing hearing, the judge said  "I am reluctant to look at words alone to determine a quantity, and therefore I must look elsewhere.  Where I will look is at the 2 kilos  (the acquitted amount), but two kilos don't add up to five.  Therefore, I will look to the fact that there was sufficient evidence (what evidence????) to persuade the jury that there were 5 kilos." 

Now, the 2 kilos consisted of the acquitted conduct.  The charge he was found not guilty of -- distributing 2 kilos to Bolden on 12/15/98.   There were NO kilos associated with the conspiracy (what conspiracy????) - and never did anyone ever say what evidence proved a conspiracy.  But even if there was any evidence to prove it -- there was no quantity associated with it.  And when there is no quantity, the sentence is less than 2 years.  Not 10 years to life! 

The Supreme Court stated in U.S. v. Booker, and U.S. v. Apprendi, that a person's sentence cannot be enhanced based on facts not admitted by the defendant, nor proven to a jury.   Ivan Eberhart never admitted to conspiring or distributing cocaine at all; and there was never any evidence brought before the jury to prove a conspiracy, let alone to prove that Ivan Eberhart ever had or distributed 5 kilos or anything, or conspired to do so. 

Before you shake your head and think "oh, that's too bad" think about this -- if it could so easily happen to Ivan Eberhart - it could happen to anyone, including you.

"In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist;

And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist;

And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew;

And then... they came for me... And by that time there was no one left to speak up."

In Defense of Joseph Jackson

I watched the BET Awards, and I saw Sherri (the comedian from the View), completely ignore Joseph Jackson, Michael Jackson's father, when she made her remarks.  As I continued watching the coverage day-after-day, I noticed there was a pattern here.  People were either ignoring him and giving all the credit to Katherine Jackson for being a wonderful mother (which she is); or dissing Joseph as a "child beater" and a "child abuser."

Let's get one thing straight.  According to all accounts of how the five Jackson brothers became the Jackson 5, it appears that Joseph noticed their talent.  It was Joseph, according to the movie "The Jackson's" who went into debt in order to buy instruments for them to rehearse.  It was Joseph who didn't, from what I've been hearing, have a nightly, weekly or even monthly night with the boys.  The only boys he was with were his own.  Can we give him a little credit for that?

Can we at least applaud the fact that not one of the Jackson brothers became a drug addict, a gang-banger, a convict, or a bum.  None of them have a lifestyle that comes close to the conditions of their childhood.  They are all comfortable, in fact, I'd say a little more than comfortable -- I don't see them wanting for anything. 

"But" you say, "didn't he beat them?"  Maybe.  That's what LaToya Jackson said.  But later she said that she thanks her father for his discipline, which made her the person she is today -- and made her brothers and sisters who they are today also.  I have heard that Michael also said his father beat him if he messed up a step or a note in rehearsal.  First, let's separate a "beating" from a "whipping."  How many of us were brought up in Christian homes where the pastor preached the scripture from Proverbs "Spare the rod and spoil the child?"  Did he receive a whipping or a beating?  I'd say a whipping, because that's what parents did, they whipped us.   He probably didn't read Dr. Spock, who told parents not to whip or punish children, and therefore, he probably wasn't one of those parents who later regretted bringing up their children under the advice of Dr. Spock, only to have undisciplined, out-of-control and disrespectful children.  Another point is, maybe if he had just ignored every note that was sung out-of-tune, every step that was missed, maybe Michael Jackson wouldn't be known as the greatest entertainer, bar-none, in this millenium.    Perhaps that objective could have been accomplished in another way.  I'm sure other parents have had dreams for their children.  I'm sure other parents did not see to it that their children carried out those dreams in the same way Joseph Jackson did.  I'm not sure any of those parents produced another Michael Jackson.  If they did, we just didn't hear about it.

A Fruitful Tree in the Internet Forest

Remember the commercial that featured the line "If a tree falls in a forest will it be heard?"  That is even more meaningful in terms of today's Internet and the wealth of information that can be found there -- if you're looking for it.   

What am I getting at?  Because of my recent interest in the corrupt drug war world, I have been scouring the Web in search of meaningful information.  And there is a ton of it out there.  But like the tree that fell in the forest and no one was there to hear it, unless someone specifically looks for this type of information it will never be found.  And those of us who are specifically looking for it, unfortunately, already know it.  We already know that DEA agents lie and do anything else to make an arrest (however, I'll admit I'm astonished as to what extent they will actually go to.)   We already know that they will use informants and knowing the informants are lying in most cases, they will just lie with them in order to get an arrest and conviction.

So this is for those of you who may still think that the "Stop Snitching Movement" is aimed at good citizens who would witness a murder or robbery and tell the police who did it.  This is what they want you to believe snitching is all about.  And they desperately want to stop the stop snitching movement, so they have come out with their own propaganda movement.  You saw it on 60 Minutes when they had the rapper Cameron saying (in all of his ignorance) how much he hated cops and therefore, if someone was murdered before his eyes he wouldn't tell -- or some such nonsense. 

I could tell you so many eye-opening things about what snitching is really all about and why it is in the interest of the powers that be to stop the stop snitching movement.  But I won't attempt to re-invent the wheel.   There is an organization by the name of the November Coalition, which was founded by Nora Callahan, and this organization does a wonderful job of telling us everything we need to know about this horrible drug war which the November Coalition is committed to end.    You can access it at www.november.org.    I thought I knew it all, but this article  that you can access here:  http://www.novemeber.org/stayinfo/breaking07/AbusinSnitching.html, even surprised me in terms of the lengths "law enforcement" and "justice" personnel will go to to convict innocent people.   

When you visit the November Coalition's site, be sure to visit the "Prisoners of the Wall".  These are a series of true stories about men and women who have been caught in the snares of the war on drugs via "informants."

Some people will read their stories and figure "Oh well, they must have done something wrong.  They must have made some bad decisions and are paying for them.  They must have been hanging with the wrong people."  (As if wrong decisions or hanging with the wrong people justify 10,20,30 year and even life sentences )   It's not for me to say whether that type of reaction demonstrates a total lack of compassion that results from watching too much FOX TV and Court TV and self-righteous Televangelists.   But it's scary to think the average person has that attitude, since the average person is a potential juror who will convict a man or woman after having seen no evidence based only on their belief that "they must have done something."   Then there are the people in positions to do something -- the media, the community organizers, the elected officials -- who will look at the appalling facts and refuse to be appalled.   If they become outraged, then they will have to do something.  So they seem to have developed a collective immunity to injustice.  This leaves the ones who care, the ones who are about the people and not the money, fighting battles on their own.   There are people like Sheila Jackson Lee, Barbara Lee, Maxine Waters, Constance "Connie" Howard, Danny Davis, Reverend Al Sharpton (I'm sorry I started naming names, because I'm sure I left some out).  These people (and the ones I inadvertently left off this list) will stick their necks out.  They have the courage to cry foul.  They don't wait until an issue becomes news before they jump on the bandwagon.  The Honorable Congressman Danny Davis has been sponsoring a bill to reinstate Parole in the Federal Prison System for years, with practically no backing from fellow Congressmen.  What's it to them if nonviolent offenders who are most likely innocent serve long terms in prison without a chance of parole, right?  No one is talking about the murderers or the bank robbers, most of them are in State Prisons anyway, and State Prisons do have parole.  The federal prisons are reserved mostly for politicians and drug war victims.

So now that I have completely digressed, let me wrap up by asking everyone to please, please, please go to the site of the November Coalition and read the articles, look at the wall, read the "Razor Wire" their monthly publication.  Yes, this stuff does actually happen in the United States of America.  But it's still your country, and it's still your right to write to your Congressmen, your newspaper editors and your friends and associates.  Only through a collective, unified effort will we be able to take this country back and stop allowing a corrupt few to make what was once called "the Land of the Free" a living hell for too many of its citizens.

$4.5 million grant to Louisiana State Police

This announcement was in The Daily Advertiser newspaper, which is published in Lafayette, LA
www.theadvertiser.com: 

Vitter announces federal crime fighting initiatives for Louisiana State Police

                          

Washington, D.C. – U.S. Sen. David Vitter announced today that the Department of Justice Office of Community Oriented Policing Services will provide more than $4.5 million in grant awards to the Louisiana State Police. This federal funding will be awarded through the COPS Technology program.

“Information sharing between federal, state and local law enforcement officials is vital to our public safety,” Vitter said. “The COPS Tech program recognizes this and helps improve the data sharing effort.”

 

                                                          

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The COPS Technology program provides federal funding to local and state enforcement officials for technology that improves data information sharing. The Louisiana State Police will specifically use this funding to expand statewide interoperable communications.

Vitter passed legislation last year that allows FEMA and other federal agencies to share information with state and local law enforcement following a major disaster such as hurricanes to assist in the tracking and detaining of parole violators and other wanted criminals who could present a threat to public safety.

“Our law enforcement is tasked with an incredibly difficult job,” said Vitter. “These programs are vital to helping them continue the work of strengthening and bettering our communities here in Louisiana.”

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It is my opinion that the state of Louisiana has not demonstrated any kind of civilized, humane, intelligent skills in law enforcement and therefore, does not deserve $4.5 million dollars to continue the kind of law enforcement its lawmakers and law enforcers are currently engaged in.  I believe that someone should write U.S. Senator David Vitter and make him aware of the Jena 6 crisis/situation (obviously he is not, or he wouldn't "reward" the state with these kinds of funds. Yeah, right.) and suggest that the $4.5 million from the Department of JUSTICE  be rescinded until every single city and town within the state of Louisiana, including Jena,  demonstrate that they understand the meaning of the word "JUSTICE".

Euka's Story - War on Drugs Victim

Euka Wadlington is a client of my son's attorney.  Euka  saved up his money and bought a bar in Iowa.  The DEA started asking his customers if there were drugs in the place.  They all said no.  Eventually, Euka closed the bar and moved back to Chicago, where he began working for  the Department of Streets and Sanitation (i.e., a garbage man).  At that time, one of the customers who had previously said Euka's bar was not a drug haven, was arrested on drug charges.  The DEA remembered him and offered him a deal if he would set up Euka.  So, the man phoned Euka practically every day for a year asking him to buy some drugs.  Euka was not interested.  Finally, he called Euka and said he was coming to Chicago and would Euka meet him at the airport.  Euka came to the airport with one dollar in his pocket which is not enough to buy drugs -- which he had no intention of buying.  The DEA swooped down on him, arrested him and charged him with drug conspiracy and possession.  Then they coerced six more inmates in various prisons to come to court and testify that Euka had sold them drugs.  After the trial, Euka's defense attorney drove to the various prisons and obtained affidavits from the inmates stating that they did not know Euka and that they had been forced and threatened to go to court and lie (one was told that he was "on a fast train to a life sentence" if he didn't testify against Euka).  The attorney filed the affidavits in a 2255 appeal, and the 8th Circuit appellate court denied the appeal, even after viewing the affidavits,  stating "the defense failed to prove that the government knew of the perjury."
You can read Euka's story and many others just as unbelievable and devasting at the November Coalition site:  www.november.org. By the way, for the crime of being lied on Euka was sentenced to life imprisonment.