My wife, who visited nearly one hundred times, and my daughter, suffered through various inanities about their clothing. The rules change arbitrarily, different colours are prohibited, and knowing visitors bring several alternatives stashed in their automobiles. Dashes to the carpark to change to accommodate the latest official sartorial whim are, apparently, a feature of the front entrance.
There are problems with the medical facilities. An inmate of nearly six years, a Spanish citizen with a cardiological condition, who had fifteen stents and had undergone four bypass operations at the taxpayers’ expense, was spuriously denied a treaty transfer to Spain, which had requested his return and promised the surgery he urgently needs. Another resident, a very pleasant former reserve player for the Detroit Tigers, was told to shape up and “be a man” for a year as he reported blood in his stools and assured the medical officers he did not have hemorrhoids. He was eventually moved, a year late, and probably too late, to a medical facility to treat his rectal cancer. There are many such cases. One of the regulars at our tutors’ table, a delightful former Havana roué and anti-Castro CIA operative, had various problems of eyes, teeth, legs, and back and spent much of his time with us brushing up his English by writing protest forms, railing against various medical personnel, frequently commenting on what he alleged to be their deviant foibles, and latterly always headed: “For the Love of God!” He wasn’t well served, but protesting his mistreatment undoubtedly assured his survival to release and return to his home and yacht (and real doctors) in Puerto Rico. I helped him with his protest forms, devising elaborate wordings that would express his contempt for the regime without transgressing permissible standards of impolity. We confused the authorities by writing an ironic message of commendation for every four or five complaints. It was more mouse and cat, but quite amusing, and better for my friend’s medical condition than all the regime’s ministrations.
Although many individual BOP employees are pleasant, or at least civilized, many senior people of the regime and some of their subalterns in the ranks are specialists in swaggering, shouting, belittling; in adolescent, verbally challenged emulations of a John Wayne figure. It is all part of the process designed to break the morale and destroy the lives of anyone who becomes ensnared in the U.S. criminal legal system, despite the tired and inconsequential pieties about rehabilitation. (I shall comment in the postlude on the gap between the espoused aims and the facts in what are called re-entry programs.) Much of such efforts as there are in that direction, apart from some of the high school teaching, tutoring, and technical training, are just exercises in hypocrisy designed to maintain the fiction of rehabilitative ambitions.
The bureaucracy is impenetrable. A friend asked why he would not benefit from regulatory changes about reduction of sentences for extended halfway house or home confinement. He received back, by post, despite the short distance between him and the responding official’s workplace, the information that he wouldn’t receive a reply because he had not returned a four-page version of the official three-page form, but that the regime would generously consider his request if he did produce the non-existent four-page form within ten days of its December 3 mailing of the response. Unfortunately, the form only covered its two-hundred-foot route of delivery after three weeks and arrived on December 24, 2008. Sagas of this sort recur almost every day to one acquaintance or another in this relatively gentle and bumbling gulag. It took me four months of negotiation to give two of my Roosevelt books to the library.
Staggering amounts of inventory leave the kitchen in unauthorized ways, and plausible rumours are that a good deal of stock marches determinedly out the back of the commissary also. After thirty seconds in the dining hall, it was a bath of nostalgia for my 1960s and 1970s visits to Hungary, Czechoslovakia, Portugal, Cuba, and the markets of West Africa, the Middle East, and Vietnam. The dining hall was an anthill of people haggling over contraband, a scarcely concealed bazaar, determining the destination of mountains of the taxpayers’ inexplicably shrinking food inventory. It also reminded me of my piping days in the supermarket business at Dominion Stores, when the customers stole $10 million of product annually and the overachieving employees stole $30 million while their union leaders whined of their exploitation. (The employees’ self-help surpassed the annual net profit to the shareholders.) A year into my sentence, security at Coleman was tightened up a good deal, and inventory shrinkages became less conspicuous, if not much reduced in volume.
The residential units are beehives of ingenuity: distillers, opticians, carpenters, metal-workers, reconstructors of mattresses, modifiers of prison pillows, talented chefs, purveyors of authentic Colombian coffee, launderers, pressers, seamsters, radio technicians, cleaners, and the jurisconsults all abound, clever and nimble and highly motivated, as long as it is all outside the ambit of the official command economy, and they are adequately compensated for their efforts (usually in postage stamps, which is the local currency). The regime soaks its captives at the commissary and overcharges for use of the telephones. Of course the brighter official lights know generally what is afoot. The counsellors have a small army of informants, sycophants, and favourites, a microcosm of American society’s lionization of the denunciator.
There are regularly arrests and prosecutions of correctional officers for smuggling and related offences. They only make about $40,000 to $60,000 per year and many are eager to add to their incomes. Almost $1,000 can be made from just one smuggled carton of cigarettes. Hannah Arendt famously wrote of the banality of evil; the U.S. justice system, even in this relatively up-market house of detention, and at every preceding stage, reveals and enforces the evil of banality.
FROM WHEN I ARRIVED ON March 3, 2008, my ambitions were fixed on the court of appeals in Chicago. The fact that it had agreed to hear the appeal expeditiously, and the general reputation of the Seventh Circuit, and the juridical tradition of higher court Chicago judges, the famous law schools in that city, and the fame of the former chief judge Richard Posner, who seemed likely to hear the case as he had sat on the appeal bond panel, seemed good auguries. Peter Atkinson and Jack Boultbee had been granted bail though I was not, and the court had expressed interest in the honest services question through the eminent (despite the fact that he went to high school in Buffalo with our avaricious former employee at the Jerusalem Post, Wolf Blitzer of CNN) Chief Judge Frank Easterbrook’s written reasons for granting the appeal. Almost the whole case in U.S. appeal proceedings is in written pleadings, and ours were very well formulated and, it seemed to me, unanswerable. The contemptible poverty of what the prosecutors had put over on the uncomprehending jurors and their elfin champion on the bench was laid bare. This, I had long before learned, didn’t guarantee anything. But, with unquenchable hopefulness, I thought the most renowned judge on the highest court in such a great and famous jurisdiction might rise at least to simple reason, a task that had intimidated and eluded Strine, Manning, Farley, Campbell, the trans-border securities regulators, and at times even Judge St. Eve. I had strong hopes that I would only be a few more weeks at Coleman as Barbara flew to Chicago and she and Carolyn Gurland attended the hearing on June 6, 2008.
The precise honest services points again were that Judge St. Eve had allowed the jurors to convict either on a money fraud or the withholding of honest services, which need not have required any cost to the company nor an intent to harm the company, without specifying which was the basis of conviction. What was required was some disloyal or unfiduciary act that, while not harmfully intended nor costing anything, could still be construed as materially harmful in an intangible way. Such a vague and arbitrary tripwire for conviction was clearly an invitation to injustice. The Supreme Court had struck down such a law before, in 1989, and an almost identical one replaced it. Thousands of people had been convicted on this argument. Because all the counts alleging a scheme to defraud were rejected by the jury, it seemed clear that honest services was the problem, and this was the exclusive burden of Ruder and Sussman’
s summations. St. Eve’s instruction went as far as it could to accommodate a conviction, though she claimed only to be following the precedent in her Circuit (the Seventh). It was contrary to the position taken by most other circuits of the United States, where we would have won all the counts. The further complexity of a special verdict form that would require the jury, if there were convictions where alternate charges were made, to specify the grounds of conviction, caused. The government’s contention that we had lost any right to challenge on this point after we had declined it (because counsel believed, on the basis of research, that requesting one would increase the likelihood of conviction, and that we could poll the jurors later if there were a need, which the judge denied when we asked for it). In this case, there was no evidence of a fraud – money theft – and the cooperating witness specifically denied it, and honest services was a very tenuous proposition. In most other circuits, we would already have won on all counts, including obstruction, if I had a counsel with the stamina to argue it cogently.
I called on Carolyn’s cellphone as soon as I thought the supposedly forty-minute hearing would be over. She and Barbara disabused me at once of any thought that justice would finally raise its comely head at this point. Applicants do not know the identity of the three judges until the day of the hearing. Easterbrook, who had expressed interest in the honest services question, was not among them, but Posner was. Posner had a female judge, new to the court and virtually silent, on his left. The second judge, on his right, seemed intelligent but barely asked a question while Posner ran the court, leaning back and swivelling in his chair with apparent boredom or irritation when the defence pleadings were attempted.
He had not read the defendants’ brief, was almost completely ignorant of the facts of the case, and was gratuitously hostile throughout. The hearing was slightly more than an hour. My counsel, Andy Frey, led off for the defence, a well-regarded former deputy solicitor general for sixteen years. The audio was available on the court’s website and I quickly received the transcript. In my reading of the proceedings, Posner reminded me of newsreels of Hitler’s favourite judge, “Raving” Roland Freisler, who “tried” the July 20, 1944, plotters, shouting at the shambling defendants for the benefit of the cameras, and his Führer. When I felt sufficiently medicated against nausea and headaches to listen to the audio of the hearing, I was reminded of Armando Valladares’s description of his Castroite judge reading a comic book and joking before sentencing him, on no evidence, to thirty years in prison.
Andy Frey was ineffectual against such a belligerent judge. In his ten-minute opening segment, he was interrupted twenty-four times by Posner, twenty-one times after less than two sentences. It is impossible to make an argument under these circumstances, but I was disappointed that Frey wasn’t more assertive to make a better record, as a couple of the other defence counsel were. He did make the point that in forty-five years of practice, he had never seen as weak a case as the government’s on the obstruction count. Posner affected not to understand how Radler could have redesignated a management fee as a non-compete payment and then devised a non-compete agreement that was real.
He either deliberately missed or did not understand how we could argue that the money was voted as a management fee and was then changed into a non-competition fee by the devising of a suitable non-competition basis for it and the retroactive confirmation of those arrangements. Posner kept tediously repeating that the payments in question had to be one type of fee or the other. He professed to be unable to grasp how they could be legitimately re-designated from a management fee to a non-compete fee, but declined to allow counsel to explain it. “You’re arguing with me,” he said. “It’s time to move on to the next case.” He did not wish to be confused by the facts, and was not. He deliberately missed the point that since the money had been voted to us by the Audit Committee and the directors, it could not have been a deprivation of the company. He refused to understand that it had nowhere been made clear where any honest services had been withheld, and how the trial judge could have instructed the jury that they could find us guilty on this charge even where no harm to the company was done or intended.
In the nonsense about removing the boxes, he was reduced, in the absence of any evidence, to a snide, smirking comment about a timing “coincidence.” So the rot in the U.S. justice system had corroded even this high level. There was no chance of a positive outcome here, so I emailed a response to a query from the Globe and Mail that it was obvious that Posner had not read the defence filings, and merely was “part of the prosecution,” that his performance was “scandalous,” but that the fight would go on. Frey was candid in affirming the negative prospects, but other counsel, loyal to the legal cartel, heaped praise on Frey and predicted a favourable outcome, as if it were a real judicial process. By this time, I knew better. Later on, many senior lawyers confirmed that Posner was the nightmare of the Seventh Circuit. He was known for his neglect and lack of thoroughness in his work on the bench, which played a secondary role to his writing and lectures. Though acknowledged as an extremely clever man and very knowledgeable about the law, his very high opinion of himself seemed to have blinded him to any shame he might have been expected to have about flippant and negligent decisions. The consensus was that, feet up, he flipped through a brief, came to a hasty opinion, and would not be moved by anything as clearly intellectually subordinate to his whims and biases as some lawyer merely equipped with the law and the facts. I was already lamentably familiar with the type.
Posner fancies himself an intellectual, and an economist. I cited his book on Justice Holmes – a respectable but far from exciting study, in my Roosevelt book. After the enormity in his courtroom, I looked into his oeuvre a little more closely. On his website, he highlighted his writing back to undergraduate essays. My study was facilitated, and even summarized, by a quickie he rushed out in May 2009 about the economic setback, called A Failure of Capitalism: The Crisis of ’08 and the Descent into Depression. This was an exercise in alarmism and pedantry. Of course there was no descent into depression, and once the Federal Reserve started distributing money with steam shovels and fire hoses, there wasn’t going to be any. Posner, in a surge of imagination, made four points: the profit motive sometimes leads businesses to bad decisions; the country may need more financial regulation; and the government regulators failed the country. And his book on the causes of the recession concluded with a call for a commission to determine the causes. My offer to review this piercing glimpse into the obvious for the Wall Street Journal (properly, in the circumstances) was declined. It would have been my pleasure to give Posner a crisp review. He has all the signs of a judge too much deferred to through decades of drinking his own bathwater.
Frey held out no hope except possibly on obstruction (the boxes). Barbara bravely came to see me the next day, though she returned late from Chicago to Palm Beach and only had forty-five minutes of sleep the night before visiting me. We prepared ourselves for having to serve much of the sentence, and planned yet another defence strategy after a further orderly retreat. Contingency arrangements were already in place. The other (hobnailed) jack-boot fell on June 25 with what I described in my notes as a “cowardly, cavalier, and perversely stupid” judgment by Posner. It was riddled with factual errors and seasoned with painful Strinish attempts at witticisms. At least Strine’s strivings toward wit were spontaneous verbal sallies. Posner couldn’t master that incline, even with weeks of laborious composition.
Yet we managed to recover most of the case, despite an uneven barristerial performance, a prejudicial instruction from the judge, and some serious frailties of perception on the jury. After this dismal cataract, I should not have been surprised by Posner’s infamy, but I was. I thought we would win something. Again, Barbara came the next day, again at huge inconvenience for what on Thursday can only be a short visit ending at noon, and again after little sleep. We would counter-attack on all fronts: try to continue the appeal to the Supreme Court; prepare a tr
eaty transfer application for Britain; pursue the essentially political process of a commutation request of the president; ask for confirmation of my status, as recommended by the judge and the probation officer, as not a security risk, making me eligible for further reductions of the sentence; launch a new series of constitutional attacks based on clear recent precedents for violation of my Sixth Amendment right to counsel with the false cash seizure in New York, which chased off Brendan Sullivan; and assault the outrageous Mareva (Barbara’s assignment, presaging my own attack on it) – all while awaiting, with some justified hopefulness according to the congressmen involved, legislated sentence reductions. I replaced the very gentlemanly and altogether admirable Andy Frey with the more aggressive Miguel Estrada for the application to the Supreme Court. (I had Barbara’s tireless research to thank for this, as it proved to be a fortuitous change.)
Oddly, the U.S. government doesn’t necessarily win a war of attrition against a resourceful individual. As we have seen, it practically always imprisons its target, who has no useful constitutional rights in fact, except entitlement to some sort of counsel in a public show trial. Prosecutors do anything they want including holding inflammatory press conferences, before and along with indictments; defendants are spuriously accused of tampering with witnesses or violating bail arrangements and are harassed by arbitrary asset seizures as part of the effort to deny them counsel, in distracting pre-trial skirmishes.* The media amplify defamatory leaks from the prosecution, and the trial and appellate judges I encountered and read, with rare exceptions such as federal District Judge Lewis Kaplan in Manhattan, appear more often than not to be wise-cracking toadies of the Justice Department, concerned for headlines and often promotion to a higher public trough, which in the current political atmosphere can only be attained by draconian severity.
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