Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  “I appreciate that, as every ‘date-rape’ case shows, the sexual relationship can go from being romantic to violent in an instant,” Facciola wrote in his recommendation. “But, if I cannot credit Knott’s testimony that she was forced to go to the Travelodge, I have to harbor significant doubts about the truthfulness of what she said occurred in the room.” He observed that “Knott is an admitted perjurer and liar” and that on the witness stand “she indicated no remorse or shame whatsoever” for her perjury. “I left the hearing with the distinct impression that she thought it was perfectly proper to lie under oath to achieve Jenkins’s imprisonment.”

  The case had not even met the lower preponderance standard, he found, and he bridled at the government’s concept that Knott was more credible when that standard of proof was less demanding. “Knott is either telling the truth or she is not,” Facciola declared. Then he made a statement that might well be hung on every prosecutor’s wall: “Truth cannot be quantified and does not admit of modifiers.” Judge Paul L. Friedman accepted the recommendation that no violation be found.

  Jenkins had been in jail eight months. He would have been free to go, except that the U.S. Parole Commission had not yet ruled on the local, D.C. case, and the government wasn’t giving up. Without knowing Facciola’s findings, which happened to be issued the same day as the commission hearing, Commissioner Robert Haworth came to the opposite conclusion, ruling that Jenkins had violated his parole by raping Knott.

  Jenkins’s legal team wasn’t giving up either.36 His lawyer in the D.C. case, Thomas L. Dybdahl, dispatched an investigator for the Public Defender Service to the neighborhood and found another witness, Patrice Kelly, who had hosted the party in her apartment. Her account devastated Knott’s claim. “Sabrina and Neale were all over each other,” Kelly said in a signed statement. “They were making conversation about where they were going to have sex at.… Sabrina said to me, we are going to go to a hotel. I saw Sabrina and Neale leave together to go to the hotel.”

  Kelly even provided a motive for Knott’s rape report. Two weeks earlier, she said, “I had told Sabrina about the Victim’s Rights Program. I had gotten busted in my lip by my friend, and I was supposed to get $1,500 for relocation money. The man lived in my building. When I told Sabrina this, she said, damn, they gonna give you $1,500? I told her if you ever get victimized (battered or raped) on these streets, they will give you money so you can move.”

  With that account plus the Facciola decision, Dybdahl appealed the Parole Commission’s ruling to its National Appeals Board, but that’s as much as he could do. “It’s frustrating,” he said. “Essentially, there’s no redress. The court says the lower standard for parole violations is constitutional. You’re at the mercy of these commissioners,” and while procedural and constitutional matters can be appealed to a court, findings of fact cannot.

  More than two months later, Dybdahl said, “I actually got a call from Commissioner Haworth, who told me upon reviewing the information he had changed his mind and the commission agreed with him, and they were voiding their earlier action and making a finding of no violation.” On January 5, 2006, just three days short of the one-year anniversary of his arrest, Neale Jenkins was released.

  You could say that the system worked, but barely, and not without inflicting pain. Sometimes you can hear the pain in a voice, as I did over the phone with Benjamin Molina, who’d had $18,000 in cash seized by local police as he was driving through southern Virginia. After four months, he’d just gotten it back (minus $100 deemed counterfeit and $1,000 for his lawyer). It was more of a victory than most victims of highway forfeiture can claim, but his wounds had not healed, as betrayed by his lingering tone of astonished anger.

  He was forty, with no criminal record and no earnings at the moment, a carpenter here legally from El Salvador, recovering from a kidney transplant and surviving on disability payments from Social Security. He had sold a house and had drawn $18,000 from his bank so he could buy a used car if he saw one he liked as he drove between his New Jersey residence and North Carolina, where he kept a mobile home. Only paper currency could be used for a roadside sale, he explained in halting English. “They want $10,000, ‘I give you cash right now.’ They’re not gonna take check from nobody they don’t know.”

  This was not a story acceptable to officers in the struggling little town of Emporia, Virginia, population 5,700, median household income $38,000. Police departments get to keep a good portion of the property they confiscate, providing a high motivation for seizures, especially from vehicles with out-of-state plates and black or Latino-looking drivers. In Barbour County, Alabama, one of the nation’s poorest, the sheriff’s department has used forfeited “drug money” to buy guns, bulletproof vests, and nine out of its fourteen cars.37 The Kingsville Police Department in Texas bought Dodge Chargers, digital ticket writers for $40,000, and assault rifles for its town of 25,000 souls.38 James Woodford, a forensic chemist who testifies as an expert witness, notes that some departments keep the money in a box and just spend it at will.

  As part of a federal narcotics program, local police departments seized $1.58 billion worth of assets in 2007, triple the amount four years earlier, according to Justice Department figures. The most lucrative fishing expeditions are conducted by police in border states, who would rather get money going south than drugs coming north, so are “more interested in working southbound than northbound lanes,” according to John Burnett, who spent nine months investigating forfeiture for National Public Radio.

  “If a cop stops a car going north with a trunk full of cocaine, that makes great press coverage, makes a great photo. Then they destroy the cocaine,” Jack Fishman, a former IRS agent, said on National Public Radio. “If they catch ’em going south with a suitcase full of cash, the police department just paid for its budget for the year.”39

  Such a grant of executive power invites abuse, and the Supreme Court has acted as enabler. In 1996, Tina B. Bennis was told by the Court that the automobile she owned jointly with her husband could be forfeited, even though she was entirely innocent of the crime committed in the vehicle: his “gross indecency” with a prostitute. He screws around, she loses her car. As Justice Clarence Thomas observed wryly in concurring, “This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable.”40

  The Court thereby set the stage for this one, described by Richard Foxall, a public defender in Alameda County, California: A prostitute’s husband was arrested for drugs while driving her car, which was seized. When she objected to the forfeiture, a cop demanded free sex, released her car, and kept stopping by for his periodic rape until she retrieved a condom he’d thrown out the window. She had the DNA tested, sued the police department, and got him fired.

  Forfeiture is an old practice, employed by the British against American colonists who evaded the Navigation Acts’ requirements that all trade be carried in British ships, subject to customs and excise duties. After independence and well into the nineteenth century, the federal government depended on tariffs as a main source of income, so with prisons scarce, forfeiture remained the swiftest deterrent to smuggling and other violations. “A ship loaded with merchandise was the most valuable thing in America at the time,” notes David B. Smith, an attorney and expert on forfeiture. “They even forfeited ships with slaves.”

  After the income tax was enacted in 1913, forfeiture tapered off, becoming a “backwater of law until 1970,” Smith says, when Congress passed antiracketeering and antinarcotics statutes. “Both had a criminal forfeiture provision, which was a new thing in American law,” he observes. “There had been criminal forfeiture in medieval times.… If you were convicted of a felony, your estate was forfeited to the king, to take away the economic power of the landowner. That had died out. And Congress got the idea, why don’t we just attach forfeiture penalties to the criminal proceeding—things that were used in the crime and proceeds from the crime? But law enforcement ag
encies didn’t use these statutes for about ten years.”

  At the urging of Senator Joseph Biden, then chairman of the Judiciary Committee, federal prosecutors began employing the provisions, says Smith, who was deputy chief of the Justice Department’s Asset Forfeiture Office at the time; he was assigned to write the manual on how to apply the laws, which grew in scope. In 1978, Congress added to the drug statute a civil forfeiture provision to confiscate proceeds, which replaced the favored tactic of having the Internal Revenue Service prosecute a drug dealer for failing to pay taxes on his ill-gotten gains.

  As a result, income from a crime, or property that facilitates the felony, can now be forfeited in one of two ways: by criminal or civil means. The criminal route comes with higher due process protections, although its consequences can be far more severe, of course. The guilt of both the person and the property must be proved beyond a reasonable doubt, and acquittal for the crime means the property goes free as well.

  Civil forfeiture has easier standards. Only the property is charged, not the person, hence the strange-sounding titles of cases: United States v. $242,484 in U.S. Currency, or One Lot Emerald Cut Stones and One Ring v. United States. Except for real estate and vast sums of money, which require a judge’s order,41 the assets can be seized by the police in an administrative, nonjudicial process that may never advance to court if the owners don’t object.

  And many don’t. “When we pop somebody and we know he’s got $50,000 in the trunk of a rental car,” said one federal prosecutor, “he may choose not to come forward and say, ‘I want the money back,’ because it’s like confessing.” On the other hand, “if he writes and says I want my stuff back, then the administrative process halts and the prosecutor decides whether or not to proceed to try to forfeit this stuff through the judicial process. If so, we have to file a forfeiture action in court.”

  In a civil forfeiture, though, the standard of proof is merely a preponderance of the evidence in a federal case, less in some states. In effect, you have to prove that your cash or your car is innocent. If the beyond-reasonable-doubt test applied, it seems safe to say, police would be deterred from easy assumptions and cavalier behavior.

  The Emporia police pulled Benjamin Molina over for tinted windows, a convenient catchall when cops want to make a traffic stop. (Some officers, such as those in Washington, D.C., carry tint meters to measure the amount of light getting through side windows, to justify a stop as a pretext for investigating more serious crime.) Molina had his money in his pockets, $10,000 in one, $8,000 in another. “They said, ‘Step out of the car. Do you have money in the car? Do you have drugs? What do you have?’ ” Molina recounted. “I said, ‘What do you think I have?’ I never had problems with that. Nobody ever asked me that question. ‘You have something in your car?’ I said no. They said, ‘Money in car?’ ‘No.’ ‘You have money on you?’ ‘Yes.’ ‘How much?’ ‘Eighteen thousand.’ ‘What?’ ”

  So an officer opened the door of Molina’s Toyota Corolla, told him to put the cash in the car, divided the bills into three bunches in three envelopes, and brought a drug-sniffing dog that happened to be on hand to check cars with tinted windows. The cop put each envelope in a different spot—on the floor, the seat—and no matter what the location, the dog signaled the presence of drugs by sitting.

  “He said, ‘The money’s ours now.’ ‘What do you mean?’ ‘It comes from drugs.’ I said, ‘That’s from my bank—what do you mean?’ ‘So the bank gave you money from drugs?’ ” If he’d had his bank receipt with him, his money might have been rescued on the spot, as it finally was when his lawyer sent in the bank’s paperwork.42

  After all these months, a flabbergasted Molina could not stop protesting the absurdity. “How’s a guy like me—I’m sick. If I do something like that, I lose Social Security. I lose my medication. I can even get deported for something like that.” Indeed he could; a drug conviction usually means deportation of a noncitizen, even a legal resident.

  But there was no drug conviction. There was not even a drug charge. Only the money was accused of being generated by the drug trade. Molina didn’t even get fined for the tinted windows. “He don’t give me no ticket. He don’t give me nothing. He just want the money. He even took the little knife that I had to open cardboard. I paid $20 for that thing, and they keep it.”

  Such is the pattern across the country. Especially in the rural South and near the southern border, highway patrolmen, called “police pirates” by one group fighting asset forfeiture, collect cash they think is drug money bound for Mexico. And much of it may be. The Drug Enforcement Administration estimates that about $12 billion for drug cartels travels annually from the United States to Mexico, with millions in cash seized on the way, discovered secreted inside tires and hidden compartments.43

  When dog alerts are the only indication that the money comes from narcotics, however, the evidence has come under question. Studies since the 1980s have suggested that most paper currency circulating in the United States bears traces of cocaine, which clings to bills, gets transferred among them, and is widely spread by banks’ counting machines. “The odor that the dogs alert to is methyl benzoate,” said James Woodford, a chemist who discovered that the substance is released as cocaine molecules degrade in moist air. The synthetic version he developed and patented, he said, has “become the standard training for dogs,” which are taught with Pavlovian rewards to recognize the sweet smell. One problem is that it’s also found in some foods, perfumes, and pesticides.

  Dogs learn to detect other drugs by other smells. “Ecstasy gives itself away through the cherry-pie scent of piperonal,” writes Avery Gilbert, an odor scientist, “and methamphetamine has a characteristic cherry-almond scent from benzaldehyde.”44 Marijuana, whose odors derive from a multitude of chemicals, can smell like lime peelings or pine trees, Woodford notes.

  He first recognized the ubiquitous presence of cocaine when he was hired as a defense expert in a criminal case in Atlanta. “It came to my mind that people roll dollar bills and use them to sniff cocaine—maybe it’s on some percentage of the money,” he recalled. “So the court said: Get money from the bank and see.” He went to the Federal Reserve. “I was just shocked. They gave me shredded money. I got bails of it. Ninety percent had cocaine.”

  In most subsequent tests by other researchers, cocaine traces were also found on significant amounts of currency: 96 percent of the bills taken from Los Angeles and other cities;45 97 percent of those from banks around the country tested by the Dade County medical examiner’s office in Miami; one-third of a sample from Chicago banks and the Federal Reserve that were examined by the DEA’s own lab there;46 and 79 percent of currency tested in another study, whose researchers concluded: “The exchange of illicit cocaine for money by drug dealers is an everyday occurrence in cities in the United States. There is ample opportunity during the exchange, storage, and use of cocaine for paper currency to become contaminated.… Cocaine contamination of currency is widespread throughout the United States.”47 A dog even once signaled there was drug residue on bills in Attorney General Janet Reno’s purse.48

  “Unless it has come straight, hot off the Bureau of Engraving and Printing press,” said Smith, the forfeiture specialist, “it’s going to have drugs adhered to it.” And not only drugs. About 94 percent of $1 bills sampled in Ohio tested positive for “pathogenic or potentially pathogenic organisms.”49 The bugs can make you sick, but you probably have a better chance of recovering your health than recovering your cash.

  Prosecutors have countered the contamination claims with two main arguments, neither of which has stood up well to rebuttals. First, their experts contend that methyl benzoate evaporates within hours, so its presence must indicate recent contact with cocaine. The chemist Woodford, when testifying as a defense expert, responds that the evaporation test has been performed on bills that have just been washed in methanol, which removes the reason that drugs cling: oils from hands, called sebum, the same oils that leave
fingerprints on smooth surfaces. In a competing test, Woodford took a circulated bill, spiked it with methyl benzoate, placed it outdoors in a light wind, and thirty-six hours later could still smell it well enough to pick it out from ten others while he was blindfolded. And he was a mere human, lacking a drug-sniffing canine’s discerning nose.50

  Second, government officials “came up with the superdog theory,” said Smith. “Now they claim they have better trained dogs that will only alert to a large amount of cocaine residue, not just the ordinary amount which covers every bill in the country. I frankly doubt that that is the case, that these dogs are so carefully trained. But even assuming that that is the case, I don’t believe it proves anything. Even if some bills have more, that doesn’t mean [the owner] was the cause of the drugs getting on the money.” In other words, a drug on money doesn’t mean that it’s drug money.

  Nor are the dogs infallible, as numerous experiments have demonstrated. Dissenting from a Supreme Court ruling that a dog alert provided probable cause for a search at a routine traffic stop, Justice David Souter listed cases with error rates from 8 to 38 percent. “In practical terms,” he wrote, “the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.”51

  Woodford seconds the doubts, noting that a properly trained dog costs $10,000, more than many small police departments are willing to spend. “They go to the pound and get a dog,” he said. “They do what’s called play-reward conditioning. They play with him, take some drugs from the police department evidence room, put it under the dog’s nose, and reward him for learning.” Without complex, double-blind training, in which neither the handler nor the dog knows whether the sample substance is a drug, you get “living, walking detection instruments” that do not measure up to court-established standards for crime lab procedures and expert witnesses.52