Friday, April 27, 2012

Justice for Sierra Leone: Charles Taylor Guilty Verdict is Announced by International High Court

After hearing nearly four years of argument and witness testimony, the Special Court for Sierra Leone at The Hague has handed down a guilty verdict in the Charles Ghankay Taylor trial.  Taylor, former President of Liberia, was charged with eleven counts of war crimes, crimes against humanity, and other serious violations of international humanitarian law that included rape, murder, terrorizing civilians, looting, sexual slavery, mutilating and beating, enslavement, and recruiting and using child soldiers.  The judges found Taylor unanimously guilty on all charges on the grounds that that he knowingly aided and abetted activities with the Revolutionary United Front and the Armed Forces Revolutionary Council, both of which contributed to the rebel forces in Sierra Leone form November 30, 1996 to January 18, 2002.

Taylor was indicted for his crimes on June 4, 2003, after hiding in exile for nearly three years in Nigeria to avoid his arrest.  While in exile, Taylor faced pressure from the newly elected Liberian president, Ellen Johnson-Sirleaf to return to Liberia and confront the charges.  On March 29, 2006, Nigerian officials caught Taylor when he attempted to flee into Cameroon.  Once Taylor arrived in Monrovia, Liberia, he was immediately arrested and subsequently transported to Freetown, Sierra Leone to face the Special Court for Sierra Leone.  Due to security concerns, the United Nations (UN) Security Council passed Resolution 1688 ordering the transfer of Taylor’s trial to the International Criminal Court in The Hague on the condition that if Taylor were found guilty, his sentence would be served elsewhere.

Though located on International Criminal Court premises, the Special Court for Sierra Leone presided over Taylor’s trial, which began at The Hague on January 6, 2008.  Both the UN Secretary General and the Government of Sierra Leone appointed the judges and attorneys.  The judges presiding over the trial were Teresa Doherty from Northern Ireland, Richard Lussick from Samoa, and Julia Sebutinde from Uganda.  Brenda Hollis served as the Chief Prosecutor, leading a team of ten prosecuting attorneys.  Courtenay Griffiths served as Lead Defense Counsel, presiding over just five defense attorneys.

While the guilty verdict undoubtedly represented justice for the victims of War in Sierra Leone, the Prosecution and Defense have both found solace in the verdict.  From the Prosecution’s perspective, a verdict that found Taylor guilty of aiding and abetting rebel forces and recognizing his role in planned attacks will certainly mean prison time for Taylor.  On the other hand, as the Defense has noted, the Special Court failed to find that Taylor exercised direct command and control over the rebel forces in Sierra Leone.  Another foundational argument the Prosecution made throughout trial, but was not upheld by the Court, was that Taylor took part in a Joint Criminal Enterprise, a doctrine also known as “common purpose” in the post-World War II Nuremburg Trials.  The doctrine has also been utilized in the International Criminal Tribunal of Yugoslavia, and it recognizes the culpability of all individuals who contribute to the carrying out of crimes for a common purpose.  Joint Criminal Enterprise recognizes a greater role in the execution of crimes than simple accomplice liability.

This verdict handed down from the Special Court of Sierra Leone has been much anticipated from the international criminal law community.  Since international criminal law is still a young, developing field, the Court’s verdict carried a significant amount of weight in the eyes of critics.  International courts continue to struggle with the issue of legitimacy, since they are seen as an expensive, lengthy process with no means of enforcement.  Though the Taylor trial may have corroborated some popular criticisms of the trial process, the Court’s verdict, refusing to recognize all of the Prosecutor’s arguments as valid, may have earned international courts a small victory in the battle for legitimacy.

Here is a link to the official website for the trial:

Ali Eacho

Junior Blog Editor, Criminal Law Brief

Image by: tlupic

Thursday, April 26, 2012

Threats Against the President: Is Ted Nugent a “True Threat?”

At the National Rifle Association (NRA) Convention on April 14, Ted Nugent made this statement: “If Barack Obama becomes the President in November, I will either be dead or in jail by this time next year.” This is not the first time Nugent has made inflammatory remarks about the President.  He  also compared President Obama to coyotes that need to be shot, and mentioned that people should “ride into that battlefield and chop their heads off in November.”  The Secret Service investigated each of these statements and declined to arrest him, stating the situation had been resolved.

Title 18, Section 871 of the United States Code, makes it a crime to make “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.”  In light of this statute, why isn’t Ted Nugent behind bars?  Two reasons have kept the musician free. First, federal courts have found that a person must have made a true threat, rather than a passing comment or political statement.  Second, the First Amendment of the United States Constitution broadly protects individual and political expression.

The Supreme Court noted both of these requirements in Watts v. United States.  In that case, the Court refused to sustain a conviction against Watts, who stated “[i]f they ever make me carry a rifle, the first man I want to get in my sights is LBJ[.]”  While the Court held the government had a “valid interest . . . in protecting the safety” of the President, the Court viewed this statute narrowly.  In fact, the Supreme Court stated  the government must show a true threat, not just “political hyperbole.”  Further, the Court found that the language of the statute must be interpreted “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In this case, the Secret Service apparently found that Nugent is not a true threat against President Obama.  However, do these statements really deserve this protection?  Nugent’s statements are markedly different than those of Watts’.  Watts commented on the draft and his opposition to the war.  Ted Nugent, on the other hand, was not engaging in public discourse.  Rather, he appears to have been pandering to the crowd and looking for publicity.  If his comments to the NRA were more specifically about the Second Amendment, for example, the policy noted in Watts v. United States, would be more applicable.  But does Nugent’s contention that he would “either be dead or in jail” if the President were re-elected really add anything to the “debate on public issues[?]”

Even if Nugent’s statements are not protected by the First Amendment, Nugent has likely not made any plans to carry out his threat.  In 2008, Walter Bagdasarian was arrested after posting on Twitter threats to shoot President Obama.  Bagdasarian was later released because prosecutors could not prove that he had plans to shoot the president. The fact that a .50 caliber rifle in his home, which was the same caliber weapon he threatened to shoot the President with was found, it was still insufficient to warrant prosecution.  If Bagdasarian could not be prosecuted under those circumstances, prosecutors would be hard pressed to charge Nugent.

Regardless of the precedent, Nugent’s comments are particularly concerning.  This is the third time he has made such inflammatory remarks.  Requiring the Secret Service to investigate repeated threats (even if they are veiled threats) against the President is a waste of our resources.  This President has  received 400% more threats than former President George W. Bush—about thirty threats a day.  Ted Nugent should not be allowed to add to this burden by issuing threats for publicity.

Bonnie Lindemann
Blogger, Criminal Law Brief

Monday, April 23, 2012

An Unusual Bond Hearing: George Zimmerman Released on Bond, but was His Attorney Prepping the Public?

On Friday, April 20, 2012, George Zimmerman, charged with the second-degree murder of seventeen year old Trayvon Martin, appeared in court where Judge Kenneth R. Lester Jr. allowed Zimmerman to temporarily regain his freedom while he awaits his trial, by setting his bond at $150,000.  Zimmerman could be out of jail by as early as the middle of next week.  To make matters worse for Martin’s family, Zimmerman also decided to make an apology to the victim’s family.  However, it was the nature of the bond hearing and Zimmerman’s attorney, Mark O’Mara, which stole the show. 

State prosecutors had requested that Zimmerman be kept in jail without bond or that Judge Lester Jr. at least set bond at one million dollars, which according to O’Mara, would be prohibitively expensive for Zimmerman’s family.  State prosecutors argued that Zimmerman’s prior history with police—two separate charges of resisting arrest, one of which was with violence—in addition to being named in a domestic violence injunction, was enough to show that he is violent and a threat to the community.  Unfortunately for the Martins, Judge Lester Jr. disagreed with prosecutors, dismissing the incidents as merely “run of the mill” and “somewhat mild.”  Furthermore, because a ten percent cash payment is typically sufficient in order to secure bond, Zimmerman can be freed with a mere $15,000, a sum which appears to be rather trivial when compared to the magnitude of the charge he is facing.

However, as most will agree, this was not an ordinary bond hearing.  O’Mara used this opportunity to humanize Zimmerman by having him take the stand to apologize to the Martin family.  Criminal defendants almost never take the stand during a bond hearing, making this an exceptional departure from the norm.  During Zimmerman’s apology, Zimmerman said that he “thought [Trayvon Martin] was a little bit younger than [Zimmerman] was, and [that he] did not know if [Martin] was armed or not.”  While O’Mara said that the apology was merely a response to the Martin family’s request that they hear from the man that shot their son, the attorneys for the Martins felt differently, saying that the apology was “self-serving,” “disingenuous,” and “insulting.”  While the sincerity of Zimmerman’s apology is up for debate, O’Mara’s orchestration of the hearing was ingenious. 

Not only was Zimmerman’s apology an orchestrated plan to humanize him, but O’Mara’s grilling of investigator Dale Gilbreath has left many questioning whether Zimmerman was even properly charged.  During the hearing O’Mara got Gilbreath to admit that he was not aware of any inquiry into whether Trayvon’s father was able to identify his son as the voice screaming in the 911 calls.  Furthermore, Gilbreath also admitted that he does not know who started the altercation, has no evidence to prove who instigated the altercation, nor does he have evidence to contradict Zimmerman’s claim that he turned back and was walking towards his car.  All of Gilbreath’s statements will be used to poke holes in the prosecution’s case, and given the prosecution’s onerous burden of persuasion, Friday was a win for O’Mara and his client.

Anoush Garakani
Blogger, Criminal Law Brief

Tuesday, April 17, 2012

Norway Killer, Anders Behring Breivik, Claims Self Defense at Trial Due to Last Ten Weeks

On July 22, 2011, Anders Behring Breivik first set off a car bomb outside the government buildings in Oslo, Norway, killing eight people.  Breivik then traveled to the small island of Utoya northwest of the capital where he spent more than an hour methodically shooting and killing another sixty-nine people, mostly teenagers.  Breivik has admitted to the killings but plans to argue self-defense at trial which was scheduled to begin April 16, 2012.  Breivik has written according to his attorney, Geir Lippestad, a written presentation that will take an hour.  Breivik handed his lawyers a copy of the presentation, which runs more than 8,000 words.  His trial is expected to last ten weeks.

During trial, Breivik is set to testify for five days, explaining why he went on a killing rampage.  Breivik has confessed to the attacks that occurred on July 22, and claimed they were done because it was necessary to protect Norway from being taken over by Muslims.  The only remaining key issue that remains unresolved is Breivik’s mental health.  The thirty-three-year-old Norwegian was found insane in one examination that recommended him to compulsory psychiatric care, while a second assessment found him mentally competent to be sent to prison.  The judges in Oslo’s district court will decide which diagnosis they find most credible.  If the original diagnosis is upheld by the court it means that Breivik cannot be sentenced to prison.  The prosecution may instead request that he be detained in a psychiatric hospital.  Medical advice will then determine whether the courts decide to release him at some later point.  If considered a perpetual danger to society, Breivik can be kept in confinement for life.  Shortly after the second period of psychiatric observation prior to the trial was begun the prosecution stated that they expected that Breivik would be declared legally insane.  However, on April 10, 2012 the second psychiatric evaluation was published with the conclusion that Breivik was not psychotic during the attacks and he was not psychotic during their evaluation

In a manifesto Breivik published online before the attacks, Breivik wrote that “patriotic resistance fighters” should use trials “as a platform to further our cause.”  Breivik claims he targeted the government headquarters in Oslo and the Labor Party youth camp to strike against the left-leaning political forces he blames for allowing immigration in Norway.  Breivik told investigators that he is a resistance fighter in a far-right militant group modeled after the Knights Templar medieval crusaders, but police have found no trace of the organization and say he acted alone.  In one section of the manifesto entitled "Battlefield Wikipedia" Breivik explains to his followers the importance of using Wikipedia as a venue for disseminating views and information to the general public.  According to the leader of the Norwegian chapter of the Wikimedia Foundation, an account has been identified which they believe was used by Breivik.  Breivik has called right-wing extremists and radical Islamist to testify during his trial, to show there are others who share his view of clashing civilizations.
In the pre-trial hearing in February 2012, Breivik read a prepared statement demanding to be released and treated as a hero for his "pre-emptive attack against traitors" accused of planning cultural genocide.  He said, "They are committing, or planning to commit, cultural destruction, of which deconstruction of the Norwegian ethnic group and deconstruction of Norwegian culture.  This is the same as ethnic cleansing."  Breivik’s defense attorney, Geir Lippestad, said Breivik’s only regret is that the death toll wasn’t higher.  Lippestad says, “It is difficult to understand, but I am telling you this to prepare people for his testimony.”  The concern for the victim’s families and surviving victims of this senseless act of violence is clear.  They will have to relive the horror of July 22, 2011, while Breivik will get exactly what he sought from the beginning, attention and fame to support his supposed cause.  However, one can find comfort that it appears the courts of Norway are not giving in to Breivik’s demands, as they have barred Breivik’s manifesto from being read at trial and will not air any of Breivik’s testimony.

Diana Cobo
Blogger, Criminal Law Brief

Image by J. Stephen Conn

Monday, April 16, 2012

Letting Life Spring from Death Row: Should Death Row Inmates Be Allowed to Donate Their Organs?

Eighteen people die each day waiting for an organ donation, and the organs of just one person are enough to save up to eight lives.  Yet, no state, nor the Federal Bureau of Prisons, permits a death row inmate to donate his or her organs upon death.  The current laws only allow living organ donations to members of the immediate family, with all costs carried by the inmate’s family.  Any donor order signed by inmate while incarcerated for general posthumous organ donation is deemed unenforceable.

Most recently, Christian Longo, convicted of murdering his wife and three children in 2001, petitioned to the Oregon Department of Corrections (Department) for the right to donate his organs after his sentence is carried out.  In return, he offered to give up his right to appeal.  The Department denied Longo’s request as organ donor officials and medical ethicists deemed Longo’s petition “morally reprehensible.”  Notably, the National Transplant Act of 1984 prohibits death row inmates from donating their organs if the donation was made for “valuable consideration,” including a reduced sentence.  “If I donated all of my organs today,” wrote Longo in the New York Times in March 2011, “I could clear nearly 1 percent of my state’s organ waiting list.  I am 37 years old and healthy; throwing my organs away after I am executed is nothing but a waste.”

Those opposing death row organ donations cite ethical concerns such as: whether it is possible to have a truly voluntary donation in prison; high instances of infections, such as HIV and hepatitis; but, most importantly, that the combination of three lethal drugs used in most states render organs unviable for transplant.  Many have cited the organ-harvesting program in China as a possible worst-case scenario of allowing organ donations in the U.S.  There, executions of death row inmates have often been hastened to keep up with the need for organs both officially and on the black market.  Exact figures are unknown, but it is possible that some death row convictions are questionably illegitimate as the demand for organs far outweighs the supply, and inmate organs make up sixty percent of the total supply of organs donations.  

Implying that improper death row convictions or hastened executions for the sake of organ harvesting may happen in the U.S. is utterly erroneous.  While in China death row organ harvesting comprises a state policy (which China has just announced it will phase out), allowing voluntary organ donation to death row inmates in the U.S. would simply afford them the same right over their bodies enjoyed by the rest of the population.  Any chance of transplanting infected organs is ruled out through mandatory blood tests done on all organs, including those donated by non-inmates.  And Ohio and Washington already use large doses of just one drug, a fast acting barbiturate that does not destroy organs.

There is no logical explanation why death row inmates should not be allowed to donate their organs.  In the case of Longo, there is no quid pro quo.  He requests no leniency, no pardon, and no better treatment.  Simply that he be allowed to exercise his right over his own body in deciding what happens to it after he has carried out his sentence.  But there is no reason for another person to have to die because he or she was not able to receive a perfectly healthy organ simply because the state said so.

Elena Gekker
Blogger, Criminal Law Brief

Image by pinkparadise1216  

Tuesday, April 10, 2012

Khalid Sheikh Mohammed Trial Set of Begin: Should We Just Skip to the End?

On April 4, 2012, the Pentagon cleared the way for the trial of Khalid Sheikh Mohammed to proceed at Guantanamo Bay, Cuba.  By now, the general public is aware that Mohammed and his four indicted co-conspirators were primary planners of the September Eleventh attacks that resulted in nearly three thousand civilian deaths.  Prosecutors have stated their intentions to pursue the death penalty, which based on the great deal of adverse evidence, is all but a forgone conclusion.  Yet, it has been a painstaking process to reach this point.  The process has been plagued with legal and political turbulence because of the polarizing questions of the role of military commissions, presidential power to establish such commissions, jurisdiction of the courts, and the procedural protections afforded to defendants.  Mohammed’s trial likely will lead to subsequent appeals that could delay any finality for an indeterminate number of years.

The whole Guantanamo Bay saga is fundamentally a values question: are military commissions the proper venue for the most important terrorism trials in a generation?  Why are civilian courts inadequate?  There are complex practical and constitutional questions at stake, which depending upon the viewpoint adopted will lead to diametrically different determinations.  Let’s assume that the ultimate result for Mohammed and his co-conspirators would be exactly the same in both venues.  The question does not become what justice is served, instead what precedent is set.

Approximately a year ago, Attorney General Eric Holder, forcefully called out Congress for meddling in what is inherently an executive power – the power to prosecute.  Holder claimed that civilian courts have proven to be effective in other terrorism trials and often result in longer sentences in the case of guilty verdicts.  For example, when Salim Hamdan, Osama bin Laden’s driver, was tried before a military commission he received a sentence of time served plus six months imprisonment.  In another case involving an alleged terrorist being tried in civilian courts, two men were sentenced to over ten years in federal prison for sending blankets and backpacks to the Mujahedeen in Afghanistan.

Attorney General Holder agreed to forego a civilian trial for Mohammed after Congress and local officials expressed their disapproval and intent to block it.  Holder and President Obama argued the limitations placed on the Department of Justice were “unwise and unwarranted” since they were designed to limit the options available to the President and raised possible constitutional questions if fought.  Instead, the President and Attorney General acceded rather than forced a constitutional showdown over Congress’s interference into prosecutorial decision-making.

  Arguments against the Obama Administration’s position tended to surround public safety, namely that it would heighten Al Qaeda’s desire to target New York City, the location of Khalid Sheik Mohammad’s initial trial, and it would be a logistical nightmare for coordinating security.  The more worrisome possibility, though, was a federal judge or jury might determine that certain evidence was obtained using torture, thus excluding its admissibility and undermining the possibility of securing a death sentence.  Other critics, such as Senator Lindsey Graham, argued that civilian trials and the associated defendant rights, such as Miranda warnings, limit the flexibility of intelligence analysts to interrogate terrorist suspects with whom the United States is at war.

The views expressed by the Obama Administration critics fail to properly consider the precedent being set.  The Constitution mandates a separation of powers among the branches of government.  There is a vast difference between having a person in military custody and interrogating them for valid military purposes, and bringing them into the civilian court system for trial.  If procedures are insufficient, Congress can legislate appropriately.  As this case reveals though, political calculations intervened to prevent the creation of a sensible middle ground that protects the intelligence gathering process and prosecutorial discretion.  At an emotional level, let’s face the fact that many people simply do want Mohammed to be tried in a civilian court, which is an understandable reaction.  Regardless, prosecutors should decide who, where, and how to prosecute – not politicians in the market place for votes.

Joe Hernandez
Blogger, Criminal Law Brief

Monday, April 9, 2012

Fashion Within Criminal Defendants: A Ploy to Distract Jurors

Criminal defendants facing jury trials are known to be allowed to dress formally and leave their jumpsuits and handcuffs aside to avoid prejudice from the jury and look more professional.  It seems that criminal defendants are now seeking new fashion statements to elicit a new perception from jurors.  The Washington Post reported that the new strategic attire for defendants is non-prescription glasses.  This new trend has been clearly demonstrated in the 2010 South Capitol Street murder case.  Five defendants are charged with murder armed with aggravating circumstances, felony murder while armed with aggravating circumstances, and assault with intent to kill while armed, and they all happen to wear glasses; a coincidence or a strategy to gain compassion from the jurors.

The “South Capitol Street Massacre” occurred on March 22, 2010, when defendants Orlando Carter, Sanquan Carter, Jeffrey Best, Lamar Wiliams, and another allegedly conspired to assault and kill people who were mistakenly believed to have stolen a diamond bracelet from Sanquan Carter.  The shooting occurred at 1333 Alabama Avenue, SE, Washington, D.C.  Jordan Howe was killed and two others were wounded.  Howe’s friends retaliated and shot Orlando Carter on March 23.  Within the next week the defendants allegedly conspired to assault and kill Howe’s friends at Howe’s funeral for retaliation of shooting Orlando Carter.  Tavon Nelson who was injured in the first shooting was shot and killed.  Brishell Jones, Davaughn Boyd, and William Jones were also shot and killed while six others were wounded outside of 4022 South Capitol Street after the funeral.

The trial began late February 2012 with a full courtroom of five defendants and each with their attorneys, and three U.S. Attorneys prosecuting the case.  The government’s star witness, Nathaniel Simms, who pled guilty in the case, testified that he had never seen any of the defendants wear glasses before even though he had known them for a long time. 

The government may have wanted to highlight a misrepresentation of their appearances.  One of the prosecutors even stated they were “putting on a schoolboy act” to influence the jury.  Defense attorney, Brian McDaniel, even admits that he likes his clients to wear glasses to make them “appear more studious.”  The American Journal of Forensic Psychology even published a study where students judged a fictitious case and “found that African American defendants wearing glasses were considered more intelligent, more honest and less threatening.”  White defendants wearing glasses did not reach the same results.  The South Capitol Street murder case has five African American defendants.

Some may claim that the defendants’ choice of attire is just a trendy, fashion statement, yet it is hard to believe that they would care to be fashionable during their own murder trial where they face a lifetime in jail if convicted.  It seems as a plea to the jury trying to convince them that such well-groomed, intelligent, and calm looking men could never commit such a crime.  It is such a small detail in the long trial, but to those observing it seems almost ridiculous they would even bother with the glasses.  We can only wait to see the effect this has on this trial and future criminal jury trials.

Monica Trigoso
Editor-in-Chief, Criminal Law Brief 

Thursday, April 5, 2012

DOJ and SEC Step Up Enforcement of Subprime Fraud

Following the subprime mortgage meltdown, an issuerepeatedly raised by commentators and the public at large is the Administration’s lack of prosecutions of high-ranking members of the financial sector.  The key question seems to be whether the government will be able to hold any of the major players in America’s financial institutions responsible for a financial crisis cause in part by reckless lending and excessive risk taking by major financial institutions.   60 Minutes did an excellent report on the topic in December 2011 that you can watch here.  

More recently, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have taken enforcement actions that have targeted some big names in the financial industry. 
In February 2012, the SEC charged four former Credit Suisse Group investment bankers and traders for engaging in a scheme to fraudulently overstate the prices of $3 billion in subprime bonds at the height of the subprime credit crisis.  In a press release, the SEC alleges that the traders priced subprime bonds in a way that enabled Credit Suisse “to achieve fictional profits.”  Moreover, the SEC also alleges that the traders mispriced bond prices to hit daily and monthly profit targets, which was driven, in part, by “these investment bankers’ desire for lavish year-end bonuses.”  The case is currently pending in the U.S. District Court for the Southern District of New York. 

Likewise, the DOJ has been busy.  Recent press articles report that the DOJ is investigating possible fraud at General Electric Company’s former subprime mortgage Unit, WMC Mortgage Corporation.  The DOJ and FBI are investigating whether senior managers condoned practices that enabled fraudulent loans to be sold to investors during the height of real estate boom.  Specifically, unidentified sources state that government is investigating whether WMC used falsified paperwork, and overstated borrowers income, among other acts, to push through questionable loans.  

The public’s demand for more enforcement actions related to the subprime mortgage crisis is unlikely to abate any time soon.  The difficulty of successfully prosecuting a financial case should not be underestimated.  The authors of “Observations on the Dearth of Criminal Prosecutions After the Financial Meltdown” provide a useful analysis of the challenges prosecutors face.  The authors discuss U.S. v. Fergusonwhere the SEC successfully charged and convicted Wall Street executives for securities fraud only to have the case thrown out of federal appeals court.  The authors draw a few lessons from Ferguson.  They argue there is a general consensus that “prosecutors face an uphill battle, while defense attorneys’ jobs have gotten slightly easier.”  Moreover, “it is often extremely difficult to prove the criminal intent of the executives.”  The authors conclude that while public pressure may compel more prosecutions of high-ranking financial officials responsible for the financial crisis, it is “equally likely” that the reversal in Ferguson may discourage prosecutors from acting. 

The public is justifiably upset.  However, as U.S. v. Ferguson demonstrates, the chance for failure in cases involving complex securities fraud is a big disincentive.  The other challenge the government faces is that the people they would prosecute can afford the best representation money can buy.  Financial Fraud Law recently reportedthat one big D.C. based firm has gone so far as to establish its own “Financial Fraud Enforcement Task Force” to counter the Obama Administration’s Enforcement Task Force that was established over two years ago.  To add, prosecutors face many of their former colleagues who have recently jumped to the private sector to, presumably, cash in on their experience as prosecutors by representing the people that could be the target of the government’s efforts.  Financial Fraud Law has documentedthe transfer of state and federal financial fraud prosecutors to private firms specializing in white collar criminal defense.  This all goes to show that the obstacles prosecutors face are substantial.  While we should not let the government off the hook for holding those accountable who committed fraud, we can at least understand why it may take longer than we would like for justice to be served. 

Ted Serafini
Blogger, Criminal Law Brief

Image by wblj

Tuesday, April 3, 2012

John Gotti: The Twenty-Year Anniversary of His Infamous 1992 Trial

Twenty years ago today, John J. Gotti was convicted for violations of the Racketeering Influenced and Corrupt Organizations Act (RICO) in connection with five murders, and several other crimes.  Known as the Dapper Don, Gotti presided over the largest crime family in the United States, which generated an estimated $500 million per year.  The highlight of this case was when the former Gambino underboss, Sammy “The Bull” Gravano, decided to turn state’s evidence and take the stand against Gotti.  His powerful testimony implicated Gotti in numerous murders, most notably the murder of former Gambino head Paul Castellano, and former underboss Thomas Bilotti in 1985 outside Sparks Steakhouse in Manhattan, New York.

The RICO conviction came after he avoided conviction on three separate occasions after becoming head of the Gambino Crime Family.  This time, however, was different.  The FBI built its case through bugging Gotti’s principal place of holding court, the Ravenite Social Club.  Over one hundred hours of conversations of Gotti were recorded.  These bugs captured, among other things, Gotti gloating that he “was in jail when [he] whacked [Robert DiBernardo].”  Gotti was later charged with murdering DiBernardo along with four other people – two of which he was also caught on tape discussing. 

On December 11, 1990, John Gotti was arrested for a violation of RICO based primarily on these tapes.  Congress expressly enacted this Act to counteract the growing influence of organized crime (although this was not RICO’s exclusive use).  To demonstrate a RICO violation, the government had to first establish that a RICO enterprise existed.  Such an enterprise exists where two or more people gather with the purpose of conducting illegal activity.  Thus, establishing that Gotti was the head of the Gambino Crime Family was critical because otherwise a RICO case would not exist.  In theory, this was not too difficult, but for many years, made members refused to even acknowledge the existence of the mob, let alone whether an individual was the boss of a family.  Fortunately, the U.S. Attorneys were able to persuade a Philadelphia mobster to flip and testify that John Gotti was in fact the head of the Gambino Crime Family. 

Next, the government had to show that: (1) Gotti committed two or more predicate acts (in this case four murders and an attempted murder) within a ten-year time period; (2) the predicate acts were linked to one another; and (3) the predicate acts demonstrated criminal conduct of a continuing nature. 

Around the clock surveillance produced a breadth of evidence to prove these elements.  His fate was truly sealed, however, when Sammy The Bull flipped on Gotti and turned state’s evidence.  Ironically, on FBI recordings, John was heard bragging to the eventual turncoat, Gravano, that “everybody in the city's got rats near them . . . but we ain't got 'em near us . . . .”  Sammy The Bull was the highest-ranking member of a crime family ever to flip, and the information he possessed was overwhelming.  Gravano himself admitted to committing nineteen murders. 

On the witness stand, Gravano testified about John’s plot to kill his former boss, Paul Castellano and Tommy Bilotti to become boss of the Gambino Crime Family.  Gravano also implicated John in the three other murders with which Gotti was charged.  Jury deliberations were quick and swift.  After fourteen hours of deliberation, on April 3, 1992, Gotti was found guilty of RICO violations in relation to five murders, related murder charges, conspiracy to commit murder, gambling, loansharking, obstruction of justice, and tax fraud.  On June 23, 1992, he was sentenced to life in prison without parole. 

During this period, John Gotti was somewhat of a people’s champ.  He received thousands of letters from adoring fans while incarcerated (both during trial and after his conviction).  Spectators lined the outside of the courthouse each day and applauded Gotti as he entered and departed from court.  The New York Times’ coverage of the trial was later criticized for being pro-Gotti.  Gotti’s stardom waned while in prison, and he eventually succumbed to cancer in 2002. 

His conviction ushered in a new era of mafia operations.  Mafia influence began to wane considerably in the ensuing years.  The Government made a definitive statement in this case, one that was heard by the entire mafia world.  Although many believe Gotti’s hubris is what really led to his downfall, the government officials working on this case took down, as the New York Post dubbed him, the Last Don.

Ryan Weir
Blog Editor, Criminal Law Brief

Monday, April 2, 2012

Woulda, Coulda, Shoulda: Evidence of Susan Powell’s Abusive Husband Raises Questions Regarding 2009 Police Investigation

Court documents unsealed last Friday, March 30, revealed previously unreported details regarding the investigation behind Susan Powell’s mysterious disappearance nearly three years ago.  The unsolved case re-entered public consciousness after her husband—the leading suspect in the police’s investigation—killed himself and his two sons in a tragic murder-suicide this past February.  Authorities say Josh Powell snatched the two boys—Braden and Charlie—from a social worker, who was delivering them for a supervised visit.  He then locked the doors and killed them and himself moments before his home exploded. 

Josh Powell’s recent actions have inspired the West Valley City Police Department to re-open their investigation on Susan Powell’s whereabouts.  The Police Chief, Thayle "Buzz" Nielsen told reporters that the department  "is committed to locating Susan and bringing a resolution to this case.  That's why it's still active." 

Although Josh Powell maintained his innocence in his wife’s disappearance until his death, the recently released evidence suggests that the police had it right from the start in their suspicions as Josh as the culprit.  First, when they entered the Powell’s Utah home after Susan Powell was reported missing, police noted that two fans were set up to blow air on the sofa.  Although Josh Powell told investigators that he had just cleaned the sofa at his wife’s request, authorities later discovered Susan Powell’s blood on the tile floor surrounding that area.  Moreover, the police discovered a handwritten letter that Susan Powell had left inside a private safe deposit box.  In the letter titled "Last will and testament for Susan Powell," she wrote that if she were to die, it may not be an accident, even if it looks like one.  She also indicated that her husband had "threatened to destroy her if they get divorced." 

The recent report also indicates that investigators found Susan Powell's cellphone in the center console of her husband’s car.  Although the phone was obviously tampered with—it did not contain a SIM card—Josh Powell claimed that he did not know why the phone was in his car.  A month after his wife’s disappearance, Powell left the state with his children and moved into his father’s house in the state of Washington (his father is also a current suspect in Susan Powell’s disappearance).  Furthermore, one of Powell’s sons, Charlie, told a police investigator that "his mommy went camping with them, although she did not come back with them and he did not know why," the documents said.  Weeks later in Washington, Charlie told a teacher that "[his] mom is dead."

This evidence begs an important question that has been raised in various contexts throughout this blog: why was this man never arrested?  Even though handfuls of evidence suggested that Josh Powell had consistently abused his wife over the course of their marriage and had threatened to kill her on multiple occasions, the police refrained from arresting him.  Members of the criminal justice system in the Washington district where Powell committed the heinous murder-suicide have spoken out about this oversight.  For instance, Pierce County prosecutor Mark Lindquist said last Friday that had the case happened in his jurisdiction, he would have charged Josh Powell with Susan’s murder.  He went on to state, "There is direct evidence.  There is circumstantial evidence.  There is motive.  There is everything but the body."  In addition, Pierce County sheriff's spokesman Ed Troyer said his detectives would have arrested Powell "a long time ago" if this had been their case.  He said a detective in Washington state was aware of the details gathered and local authorities were anticipating that Utah investigators would pursue an arrest.  Unfortunately, they never did. 

Although these statements from members of the Pierce County criminal justice system indicate a proactive approach, domestic violence homicides are frequently overlooked by the criminal justice system.  Hopefully the tragic outcome of the longstanding Powell case will inspire hesitant investigators to use evidence of domestic violence as a basis for taking these dangerous and unstable individuals into custody.  

Amanda Giglio
Blogger, Criminal Law Brief