The American justice system has become a gigantic legal cartel, where there are too many laws, and the legal profession is a terrible taxation on the country. The U.S. is a terribly over-lawyered country (having about half the lawyers in the world, over a million) where legal bills routinely consume $1 trillion a year, almost as much as the GDP of India. Most judges are ex-prosecutors, and so are a very large number of legislators. The criminal justice system has become a prosecutocracy where more than 90 per cent of indictments are successful. The country has become a carceral state detaining an obscene number of its own citizens, and a vastly disproportionate number of the world’s prisoners, often in conditions that are shocking, especially in such a rich and generous-minded country, so proud of its humanitarian traditions.
An astounding 47 million Americans have a criminal record, albeit most of them are for minor offences long ago, but about 750,000 people are sent to prison in the U.S. every year and the country has six to twelve times as many incarcerated people per capita as other wealthy and sophisticated democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom.
THE PLEA BARGAIN
THE AMERICAN CRIMINAL JUSTICE SYSTEM is based on the plea bargain, which is hideously abused, and it could not possibly be otherwise. Prosecutors single someone out and threaten all sorts of acquaintances or colleagues of the target with prosecution if they do not “cooperate,” which in practice means producing inculpatory evidence against the target, with negligible concern for its veracity, and an immunity against prosecution for suborned or extorted perjury.
In our case, the prosecutors negotiated the evidence with their main witnesses, and knew perfectly well how they were “preparing” the testimony of witnesses. As the reader has seen in this narrative, and most readers would have observed the same pattern elsewhere, all the important government witnesses in our trial were press-ganged into pre-agreed, catechetical evidence, which was torn to pieces and debunked by defense counsel. They did this in exchange for immunities from prosecution on charges that would have been spurious (except for Radler), but dangerous in this system; and in the case of the one person who actually had committed crimes, a very soft sentence in consideration for his confession and denunciation of former colleagues he surely knew to be innocent.
It is terrifying to see how the prosecutors can, as they did with Burt, Kravis, and Thompson in our case, intimidate prominent and successful people who in other contexts would have some moral authority and no absence of goodwill to me. And it was very disturbing to see what a bullyboy like Sussman thought nothing of threatening to do to my mortgagee in Palm Beach if he renewed the mortgage and denied Sussman his false claim to St. Eve that I was in default of my bail conditions. This was the basis of his demand that accordingly, my house should be seized, bond rescinded, and I should be sent to prison at once, without the annoying formality of a trial—with no critical comment whatever from the world media. It was disturbing to see his threat of prosecution of the acting president of Hollinger Inc. (Don Vale), if he so much as entered the U.S. to testify that I had pre-cleared removal of the famous boxes with him. These outrages are routine and mention of them brought no response even from a relatively fair-minded judge, as St. Eve was.
The plea bargain is nakedly the exchange of altered testimony for varied sentences. It generally starts well down in an organization and brings irresistible pressures to bear on people unable to sustain themselves psychologically or defend themselves financially against such an onslaught—until that person promises to inculpate a targeted higher-up.
The process goes through an organization until sometimes scores of intimidated or suborned people are accusing the chosen target. It is an evil and profoundly corrupt process, and is not reconcilable with American notions of law. Every informed person in the country knows that the criminal justice system is based on officially sanctioned fraud and intimidation, and that the federal court houses are silent and the courts are empty because almost no one can go the distance with the government, and that there are tens or hundreds of thousands of innocent people in U.S. prisons because of the false confessions and accusations they are forced to make. Everyone who knows anything about comparative law knows that prosecutors in Britain and Canada, to name only the other jurisdictions I know well, and which have their judicial failings too, would be disbarred for the imposition of what are routine plea bargains in the United States. But almost no one says anything about it.
I was the real target in our case, because of my comparative prominence, and to get at me, it was necessary to allege a scheme and take down some close associates with me. We were all innocent, all benefited from the destruction by our counsel of the government’s rehearsed and mendacious witnesses, but because of one of a number of catch-all statutes that make conviction almost inevitable, we were all convicted and all but one of us were sent to prison.
THE PROSECUTION ADVANTAGE
IT IS TERRIBLY IMPORTANT THAT I make the point that I was not especially singled out for this assault. This is the routine modus operandi of the U.S. prosecution service. It does what it wants and persecutes whomever it wishes for as long as it likes.
As the Chief Justice of the United States said at our Supreme Court hearing, whoever a prosecutor takes against is a criminal, and under the statute that convicted us, anyone could be so designated, charged, convicted, and imprisoned. The Chief Justice made the point that even an intelligent member of the public would not know when he was committing a crime under the honest services provision, and one of the other justices said that a derogation from honest services could probably be alleged against 90 per cent of the U.S. workforce, at any time, or about 140 million people.
In my own experience, it will be recalled that I did not benefit from the constitutional guaranties of the grand jury as assurance against capricious prosecution; the ban on seizure of property without just compensation; the guaranties of due process, access to counsel (of choice), an impartial jury, prompt justice, and reasonable bail. A statute that should have been completely inapplicable was invoked, ex parte, to seize my assets. Illegal telephone intercepts had informed prosecutors I had earmarked for the retainer of my counsel of choice, who was thus denied to me. And the affidavit that was used to justify the seizure is one that the jury judged to be, and the prosecutors should have known to be, false. Again, there was no sanction for this from an indulgent court presided over by an ex-prosecutor, any more than for the endless inaccuracies the prosecutors inflicted on the court.
The government rehearses its witnesses, whom the defendants cannot interview, intimidates them with threats, and shelters their extorted testimony with guaranties of immunity, but any contact from the defense is deemed to be witness-tampering and obstruction of justice.
To establish federal jurisdiction in cases like mine, charges are ridiculous interstate technicalities like wire fraud. Charges come in large bunches, as jurors are normally reluctant to give their government nothing at the end of a long trial.
Notice is given very late of documentation to be used; false accounts of prosecution interviews are handed over, which cannot be shown to interviewees; and the prosecution speaks last before the case goes to the jury, which generally has to rely on its memory of the proceedings, no matter how long and complicated the trial. The prosecutors routinely indict amid a media extravaganza that would be considered grossly prejudicial and grounds for a mistrial in any other legally civilized country. I was accused of money laundering and, inter alia, racketeering, and the preposterous concept of civil racketeering. The law of the United States is not only an ass; it is an ass spavined beyond recognition. It pains me to seem ungrateful to the Supreme Court for overturning the abusive measure that was used against us; but I can’t help wondering where that court, amid the vast media and professional cult of its composition and the philosophies of its members, has been while the Bill of Rights has been put to the shredder for decades.
The court unanimously gutted an
d rewrote the statute that sent my co-defendants and me to prison for more than two years, but it had struck down the statute more than twenty years before, and it had been instantly replaced and continued to be used to send the innocent to prison for decades until we brought it back to the high court.
The importance of the Supreme Court among the equal branches of the federal government has risen because of the moral abdication of the Congress and President. The other branches could not face the issue of abortion, or of the illegal immigration of approximately 15 million people, or of acute income disparity, or of health care for the country’s 45 million uninsured. But they and especially the Congress have been responsible, instead of addressing these and other urgent public policy concerns, for an assault on civil liberties vastly beyond anything ever entertained by the government of King George III, against whose heavy-handedness about two-thirds of Americans revolted in a seven-year war of independence.
As legislators and presidents have copped out, the executive branch’s prosecution arm has become an enforcement elite, holding hands with ex-prosecutors in the Congress and the judiciary, and progressively terrorizing more and more people, including senior members of the Congress and Administration. They are a state within a state, which, in 2007 and 2008, destroyed the career of a five-term senator, by recourse to fraudulent evidence, and of the former chief of staff of the vice president, on a charge by the special prosecutor (the inevitable Patrick Fitzgerald) who was soundly thrashed in the media. Prosecutors are not now checked or balanced.
And beyond that, although this is not a political science treatise, Congress is now mainly composed of rotton boroughs controlled by particular interests. It has become a vast and sleazy earmark-trading, log-rolling, and back-scratching operation that all polls indicate disgusts the great majority of Americans. The core of the American system, identified with the unexampled rise of the country and the ideals that give the Americans their sense of exceptionalism and is much of what they have fought for in their many wars, is the concept of individual rights, due process, and equality before the law. This has putrefied. American criminal justice is a conveyer belt to imprisonment or the place of execution, festooned with a few trimmings and a bit of window dressing of a just society of the rule of law.
Prosecutions in the United States have become steadily more numerous and are almost always at least partially successful, and the political class, from left to right, claims success against crime through righteous severity. The public scream for blood; judges are named or elected on the basis of their propensity to aid the prosecutors and become, with few exceptions, the Zeitgeist in robes.
In our case, settling, or “cooperating,” as it was euphemistically called (it should have been called co-conspiring), was a win double for almost all involved. Lawyers and consultants and often their clients, while helping the U.S. government assault me, could enrich themselves splendidly by leeching onto Hollinger. In my wildest nightmares, I had never believed that so many people of relatively serious mien could so easily be tainted and bent. But very few missed an opportunity to vacuum up the money. In this case, “following the money” would create a stampede in which many would be trampled underfoot by the surge of mindless seekers of their own enrichment. Courts support and are part of the legal cartel, and piled costs onto our companies until they were bankrupt, and the devil take the public shareholders in whose name all their infamies were executed. It was disgusting.
When the recession came in 2008, many large U.S. firms paid promising graduates $100,000 or more per year not to sign with any other firm, so confident were they that the fat days would soon return. (They did.) Various American and Canadian lawyers advised me to sell all my assets pre-emptively, to be able to pay the legal bills for as long as possible.
When a defendant in the U.S. concludes that his defence was deficient, and files an action after the trial to emphasize a relevant point that was overlooked and could perhaps have affected the outcome of the trial, the cartel rallies and the prosecutors argue the outstanding qualities and unsurpassable legal expertise of the defence counsel whom they have defeated. It is the litmus test of the solidarity of the profession, and never fails. In the end, the law is a medieval guild and the clients are the material the guild works with, like shoemakers’ leather, and usually with almost as much impersonality.
The victims of the uneven grinding of the U.S. justice system are not a political constituency. The United States has 5 per cent of the world’s population and 25 per cent of the world’s imprisoned people (about the same numbers as apply to its GDP); it has nearly five times the population of the United Kingdom and yet, at 2.45 million, nearly forty times as many imprisoned people. The masses of America are not as free as they think, and again, America does have almost half the world’s lawyers.
CANADA AND THE UNITED KINGDOM
CANADA IS A SMALLER JUNGLE than the U.S. with smaller beasts in it; the lawyers are generally not as competent as the Americans, and the Canadian judges are more servile marionettes of the media faddists. But the rules and practices are fairer and the results less savage than in the United States. The Hollinger Inc. cooperation agreement, which Walker, Strosberg, and Kelly negotiated with Sussman, showed the ease with which Canada slides into its branch-plant status with the United States even in the adoption of its sleaziest practices. The agreement spared the company prosecution (for which there was no conceivable cause), ostensibly in exchange for information. In fact, Sussman instructed the “management,” which happily purloined, destroyed, and mislaid my documents, seized personal property of mine, and did everything inhumanly possible to defame and aggravate me. This process culminated under Walker in the obstruction nonsense, and under Voorheis in the Mareva outrage, both blessed and sanctioned by Canada’s very own Richard Posner toute proportion gardée, Colin Campbell.
Despite these and many other failings, the hand-holding in Canada between the prosecutors, judges, and legislators, is not as intimate or cynical as in the U.S. Not so many judges are ex-prosecutors and crime has not been so shabbily politicized. There has not been the same drive in Canada as in the U.S. to end penal reform, and turn the convicted into a permanent wretched band of outcasts inaccessible to social utility or respectability. The Trudeau era defined more socialistic public policy as a raison d’être of Canada vis-à-vis the United States, albeit largely as a blind for buying Quebec’s adherence to federalism through colossal largesse disguised as uniform social programs. This has helped Canada avoid the barbarity, demagogy, and primitiveness that have afflicted American justice. So has the abolition of the death penalty, which has achieved a morbid, fetishistic status in the minds of many great Americans, including the forty-third president, who seemed to find rejecting commutation requests from the denizens of death row one of the great pleasures of being governor of Texas.
It is very worrisome to see the Harper government trying systematically to import American severities of longer sentences, reduced efforts at rehabilitation, more prosecutions, and the extreme discouragement of continued contact with family and friends (not even a handshake with a visitor—I lived from week to week on the permitted arriving and departing hug and kiss with Barbara). I will do what I can to oppose this. Margaret Atwood and I have gone joint account in buying a cow from the “historic herd” adjacent to the Kingston penitentiary, which is being dispersed to expand the prison, to admit the anticipated droves of people convicted of habitually unreported crimes. Kafka, Orwell, and Koestler never tried this one, and we are referring to Canada, not the gulags of Euro-totalitarianism.
As in many other spheres, Canada is a junior league for the colossal engine of injustice Americans know little of as they stand at public events, hands over their hearts, bellowing out their splendid anthems, apparently never wondering how the legal system of Madison, Jefferson, and Lincoln permutated into this giant cesspool of officious legal hypocrisy.
My one parallel experience with British counsel was with a libel firm, wh
ere the partner I was in touch with inadvertently sent me an email intended for one of his colleagues, suggesting that they could demand £500,000 to start and wouldn’t have to do much. I found British solicitors pusillanimous, pettifogging, and grossly overpaid when I lived there, and I would always be prepared to fear the worst of them.
I think their judges are better than in Canada and the U.S., less hypnotized by the media and more fluent, of tongue and pen, and their barristers are often impressive. Again, I had occasion to deal with many of the most prominent when I was at the Daily Telegraph.
THE CUSTODIAL SYSTEM
THE CRIMINAL JUSTICE SYSTEM IS as much devoted to the creation of an untouchable caste of the wretched, tainted with conviction, in a sort of Roman imperial lottery, as it is with condign justice and the gathering of as many people as possible into a normal diverse, law-abiding polity. The regular visits of the director of the Bureau of Prisons to Congressional subcommittees, which I read with avid astonishment when I was one of his guests, are an exercise in Orwellian newspeak. Po-faced Congressmen listen credulously as the director describes an elfin workshop of happy inmates singing “hi ho” as they proceed inexorably toward rehabilitation. The whole system is a tenebrous and deadly thicket, designed to ensnare, benumb, and break all those who blunder into it, whether by misdirection, victimization, or genuinely criminal or sociopathic behaviour. As one who rushed home early from school to watch Army—McCarthy hearings on television in 1953, I felt it grimly nostalgic to read the director of the BOP’s bucolic fables before the legislators to whom he is ostensibly responsible.
Conrad Black Page 62