Lies the government told you

by Andrew P. Napolitano

  The prosecutors and police officers, who are supposed to enforce the law, are actually ensuring that the innocent are proven guilty, all the while claiming that their suspects are presumed innocent. The question is though, if they believed their lies, why would they suppress and fabricate evidence? Why would they feel the need to coerce witnesses? Either they want the innocent to be jailed or they actually do not believe in the presumption, and feel that those whom they suspect are “guilty” are indeed guilty, no matter what the law says and no matter what evidence contradicts their beliefs.

  The examples of this type of conduct are wide-ranging; but one extreme example lies in the case of Jeffrey R. MacDonald, M.D. Dr. MacDonald was a twenty-six-year-old Army captain living on base with his wife and two young daughters and leading a very fulfilling life. Having accomplished the goals he had set for himself, Jeffrey was a successful and happy man. But that happiness was shattered on February 17th 1970. Intruders broke into his home, brutally murdered his wife and two daughters, and attempted to murder Jeff himself. Resuscitated by the military police, he was rushed to the hospital, where he remained in the Intensive Care Unit for over a week for treatment of his multiple stab wounds, as well as a collapsed lung. While on the way to the hospital, Jeff described the intruders as a woman with long, blond hair covered by a floppy hat, and two other males, one white and the other black. With these descriptions he provided to police, he hoped that justice would be served and those responsible for the killings would be held responsible. Yet, rather than follow up, the government focused on Jeff as its prime suspect from the beginning of the case, even when the Army had investigated and cleared him and had given him an honorable discharge.

  It took them nine years, until one of the Army lawyers assigned to the case, Brian Murtagh, was transferred to the Department of Justice and realized that the case had not yet been closed. As there were no suspects, Murtagh decided to refocus attention on Jeff. And his witch hunt led to what amounted to a story backed by only the most minute of circumstantial evidence. Unfortunately for Jeff, the one witness who could have helped, Helena Stoeckley, who had testified for the prosecution so many times in many other cases and had herself confessed to the crime, was determined to be an “unreliable witness,” and therefore those persons to whom she had confessed were not permitted to relate that testimony to Jeff ’s jury. During her testimony, Helena admitted to owning a blond wig and floppy hat but had destroyed them, because they connected her to the murders. Still, the jury convicted Jeff, and he was sentenced to three life terms. His conviction was originally overturned by the U.S. Court of Appeals for the Fourth Circuit, and he had a taste of freedom, until in 1982, when the Supreme Court reinstated his conviction and returned him to prison.

  Of course, Jeff filed multiple appeals, but the trial judge denied them all. Helena Stoeckley continued to confess to various individuals her role in the murder. Jeff also found out that the prosecution had hidden exculpatory evidence and lied to the jury, claiming that no signs of intruders were found even though Jeff found case file notes stating that long, blond wig fibers had been found, as well as black wool fibers not linked to the house. He also learned that a crime lab tech had falsely testified that the synthetic blond hair found at the scene did not come from a wig. This same crime lab tech would later be fired from the lab when evidence was found of multiple deceptions in various cases.

  One of the prosecutors on the case, James Blackburn, was later disbarred and charged with twelve counts of dishonesty, including embezzlement and changing court documents. A former U.S. Marshal came forward twenty-six years later (How could he live with himself—waiting so long before coming forward—while Jeff was in a federal prison?), avowing and passing a polygraph stating that he had witnessed a conversation between Helena Stoeckley and the prosecutor, wherein she confessed to committing the murders, and the prosecutor threatened to indict her for murder if she testified to that.

  Even when DNA results were finally available in 2006, eight-and-a-half years after they had been ordered, and multiple hairs were found at the scene that did not match Jeff or the rest of his family, one of which was grasped in two-year-old Kristen’s hand as if torn from her attacker’s head, the federal judge who replaced the original trial judge refused to grant a new trial.

  Finally, in 2007, after Helena had died, Jeff heard from Helena’s mother, who stated that Helena had confessed to her and explained that she could not tell the truth on the stand because she was afraid of the prosecutor, and the mother had not come forward earlier because she, too, was afraid. Even with all this evidence, the trial judge held that since Helena was dead, even if all the testimony about and from her was true, there was no way anyone could know how her fear of the prosecutor affected her testimony, and therefore the appeal was denied. Jeff ’s actual innocence was of no import to the government. All that mattered was that he was not denied any constitutional protections at his trial. Doesn’t the Constitution protect against wrongful imprisonment?

  After thirty years of fighting for his innocence, Jeff, with the help of the Innocence Project, has filed another appeal with the Fourth Circuit. He might be able to make it out of jail for his sixty-sixth birthday and be given the freedom that innocent people have as a natural birthright.

  Civil Commitment:

  Presumption of Innocence Need Not Apply

  Even though the Supreme Court had in its early days stressed that the presumption of innocence was undoubted law, it failed to apply its own precedent when deciding a case of civil commitment. Apparently, when it is a case of civil commitment, then the people who were wrongfully committed to mental hospitals would be comforted there by friends and family. Sounds ridiculous, right? Well, that is what the Supreme Court reasoned in 1979 in Addington v. Texas. The case involved Frank Addington, a Texan who had been charged with misdemeanor assault. His mother filed a petition to have him involuntarily and indefinitely committed to a state psychiatric hospital. The Supreme Court held that the burden for involuntary civil commitment did not have to reach “beyond a reasonable doubt,” rather, only proof by “clear and convincing evidence” that such a commitment was necessary.

  The Court distinguished between incarceration in criminal cases and civil commitment, finding that there was a large difference between the two and that the second did not require a “beyond a reasonable doubt” standard. Considering that civil commitment is for an indefinite period, rather than a set period as is the case for criminal sentencing, the fact that the Supreme Court could find that it required a lower threshold of proof, and therefore in essence discard the standard required when one is “innocent until proven guilty,” we may have approached the old Soviet system in which nonconformists were institutionalized—a system we supposedly waged a forty-five-year-long cold war in order to upend.

  In the majority opinion, Chief Justice Burger noted:

  [I]t is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma . . . It cannot be said, therefore, that it is much better for a mentally ill person to “go free” than for a mentally normal person to be committed.17

  Apparently, the Chief Justice felt that since the mentally ill are never really at liberty, then it was okay to commit the innocent. Such convoluted reasonings have no place in our law. Sometimes we must tolerate the mental instability of a few to preserve the freedom of us all.

  Money Can Buy You Guilt

  Anastasio Prieto was driving his truck toward home along US Route 54, just north of El Paso, Texas, on a late summer night in August 2007. While enjoying the beautiful countryside passing him by, he noticed a weigh station and pulled over to have his truck inspected. A state trooper approached him and asked whether he could search Anastasio’s truck for contraband. Not protective of his own privacy, Anastasio said, “Of course,” knowing that
no contraband would be found. During his conversation, Anastasio did mention that he happened to be carrying $23,700, his life savings, used to pay bills and maintain the truck, which he carried with him because he did not trust banks. What he did not realize was that his opinion of banks would be his undoing.

  The money was confiscated, and Anastasio was detained, photographed, and fingerprinted while canine dogs sniffed his truck. The state police, who believed that Anastasio must be guilty of something, turned the cash they seized from him over to the federal Drug Enforcement Administration. Though no evidence of illegal substances was found, the DEA explained to Anastasio that they would be keeping the money, and that in thirty days he would receive notice of federal proceedings to forfeit the money permanently to the government. Anastasio was told that if he wanted to get the money back, he would have to petition a court and prove that the money was legally obtained by him and not the product of criminal conduct.

  That’s right; even though not a single shred of evidence of any illegal activity was found in his truck, Anastasio was considered guilty and would have to prove his innocence. Thankfully, the ACLU stepped in and sued the DEA on behalf of Anastasio. With the lawsuit looming, and fearing a more public revelation of its Gestapo tactics at a trial, the DEA returned the money months later.18

  Sadly, the case of Anastasio Prieto is not an isolated incident. As much as the government continues to stress the myth that people are innocent until proven guilty, forfeiture laws debunk this myth. And, unlike in Anastasio’s case, courts often sanction such actions. In a similar case, Emiliano Gomez Gonzolez and his friends had pooled their savings together, for a sum total of $124,700, in order to purchase a truck. They found the truck they wanted and agreed with a used car dealer in Chicago to purchase it for cash. Unfortunately, when Emiliano arrived in Chicago, the truck had been sold. Rather than spend the money flying back, and not having a credit card of his own, Emiliano requested that a friend rent a car for him. He packed the money in his trunk and headed home to return the money to all those in the partnership.

  Unfortunately, he was pulled over by a Nebraska state trooper somewhere on Interstate 80. The officer searched his car and found the money. Of course, the money was automatically seized because a canine sniffed drug residue in the trunk of a rental car. The Eighth Circuit Court of Appeals held that “possession of a large sum of cash is ‘strong evidence’ of a connection to drug activity.” Even though the money had never been tied to any drug purchases; even though, as the dissent noted, Emiliano had never been convicted of a drug-related crime; even though no actual drugs or drug paraphernalia were ever found in the car; and even though the only connection was some drug residue in a rental car that was “no doubt driven by dozens . . . of patrons during the course of a given year.”19

  Because the courts do not take seriously the presumption of innocence, because they will permit government theft based on suppositions, because they essentially reject the natural right to use and possess one’s property unmolested by the government, because they do not accept the right to be left alone, they permit the government to perpetuate these horrendous injustices. Think about it. You and I could not have lawfully stolen Mr. Gonzolez’s cash and had a court let us keep it because he could not prove it was his. So, if the government “derive[s]” its “just Powers from the Consent of the Governed,” as Jefferson wrote in the Declaration of Independence, then how can the government do anything that we as individuals cannot? Even though Emiliano Gonzolez was never convicted of a crime, the life savings of the individuals involved as well as his own were forfeited to the government that stole it.

  The government often justifies these takings as a way to take the profit out of crime. Yet when the agents of the state become accustomed to seizing property and not having to return it, they will often then take that property for their personal use. Such was a case that I was confronted with while on the Superior Court bench in New Jersey in 1990. A young man had been arrested for allegedly transporting women across the George Washington Bridge for certain illicit purposes. After the police arrested and charged him, they seized the car that he had supposedly used for such purposes.

  Lucky for the police, the car was a beautiful $85,000 Mercedes Benz coup. (The present-day version of this car sells for $160,000.) Even luckier for the chief prosecutor of the county, the police proceeded to gift the car to him, and he proceeded to use it as his own personal car. Imagine the outrage of being presumed innocent, having your car seized, and then, walking down the street, observing the men who had stolen it, driving it. Imagine then that you had no legal recourse, that the law that was meant to protect you instead validated the theft.

  Unfortunately for the prosecutor, the defendant who was driving the car did not own the Mercedes; his father did. Needless to say, when the young man and his father petitioned me to have the car returned, I did just that. A few years later, I was accosted by the former prosecutor’s wife as the judge who had taken her husband’s car away. The former prosecutor who used the car has since been convicted of unrelated crimes, incarcerated, disbarred, and presently works as a night security guard at a hotel.

  These stories are just a few about the forfeiture laws in the United States, but they so aptly debunk the myth that one is innocent until proven guilty. Once your money or property is seized, which can be done for no apparent reason, it is your burden to prove your innocence and your ownership of your asset. The reason that we have laws stating that one is innocent until proven guilty is because it is so very hard to prove a negative. Just imagine trying to prove that the twenty dollars in your wallet right now are yours legally, that you did not steal them, especially if there is no specific accusation as to whom you stole the money from, when you stole, it, or how. Instead, like sheep we permit the government to say, “I am going to assume that this is stolen, and if you want it back, prove to me that it is not.” Now imagine that the money was your entire life savings.

  Guilty by Presumed Association

  In 2000, the U.S. Department of State Country Reports on Human Rights Practices, reporting on the Egyptian custom of trying those accused of terrorism in front of military tribunals, noted that “military courts do not ensure civilian defendants due process before an independent tribunal.” Yet only a few years later, the federal government apparently felt that this statement did not apply to it and enacted a law allowing any noncitizen suspected of being a terrorist to be tried by a military commission.

  The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II. They came ashore in Amagansett, New York, and Ponte Vedra Beach, Florida, and donned civilian clothes, with plans to blow up strategic U.S. targets. They were tried before a military tribunal, and President Franklin D. Roosevelt based his order to do so on the existence of a formal congressional declaration of war against Germany.

  In the uproar caused by Attorney General Eric H. Holder Jr.’s 2009 announcement that the alleged planners of the 9/11 attacks are to be tried in U.S. District Court in New York City—and the suspects in the attack on the U.S. destroyer Cole will go on trial before military tribunals at Guantanamo Bay, Cuba—the public discourse has lost sight of the fundamental principles that guide the government when it makes such decisions. Unfortunately, the government has lost sight of the principles as well.

  When President George W. Bush spoke to Congress shortly after 9/11, he did not ask for a declaration of war. Instead, Republican leaders offered and Congress enacted an Authorization for the Use of Military Force. The authorization was open-ended as to its targets and its conclusion, and basically told the president and his successors that they could pursue whomever they wanted, wherever their pursuits took them, so long as they believed that the people they pursued had engaged in acts of terrorism against the United States. Thus was born the “war” on terror.

  Tellingly, and perhaps because we did not know at the time precisely
who had planned the 9/11 attacks, Congress did not declare war. But the use of the word war persisted nonetheless. Even after he learned what countries had sponsored terrorism against us and our allies with governmental assistance, Bush did not seek a declaration of war against them. Since 9/11, American agents have captured and seized nearly eight hundred people from all over the globe in connection with the attacks, and now five have been charged with planning them.

  Virtually all of those seized who survived interrogation have been held at Guantanamo Bay. Bush initially ordered that no law or treaty applied to these detainees and that no judge could hear their cases, and thus he could detain whoever he decided was too risky to release and whoever he was satisfied had participated in terrorist attacks against the U.S. He made these extraconstitutional claims based, he said, on the inherent powers of the commander in chief in wartime. But in the Supreme Court, he lost all five substantive challenges to his authority brought by detainees. As a result, some detainees had to be freed, and he and Congress eventually settled for trying some before military tribunals under the Uniform Code of Military Justice and subsequent legislation.

  The casual use of the word war has led to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war—and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.

  The recent decision to try some of the Guantanamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line. All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.