- SHOULD ANYONE SPEAK TO THE FBI?
With Robert Mueller’s Special Counsel Investigation in full swing, many are reminded of the Martha Stewart prosecution and how she was ultimately acquitted of the charges that were connected to the underlying investigation but was nonetheless found guilty of lying to the FBI.
Title 18 U.S.C. section 1001 makes it a felony punishable by up to 5 years in prison, to knowingly make a false, material statement regarding any matter under the jurisdiction of the three branches of our federal government. Amazingly, a MAJORITY of the five non “Russian Bot” defendants who have been indicted as a result of Mueller’s investigation – Michael Flynn, George Papadopoulos, and Alex Van Der Zwaan, have been charged with only one thing: making false statement(s) to the FBI under 18 USC 1001. There is a silver lining though, as this provides me the perfect opportunity to illustrate and support my constant refrain to family, friends, acquaintances and even strangers: There is virtually no reason under the sun to speak with the FBI. Ever.
Had each of these three men exercised their 5th Amendment constitutional right to remain silent, they would be living today without the faintest thought of prison life anywhere within their consciousness. In the end, unfortunately the blame for many of these charges and convictions falls squarely on the glass shoulders of their attorneys. They were either out of their element, in over their heads, or simply inept; but in most such cases, by advising their client to speak with the FBI, they led their lamb-like clients to slaughter. I am hopeful that this latest batch of human guinea pigs will suffer publicly enough to raise awareness of the real dangers inherent in speaking to agents of our federal government.
Some may fear that the spread of this “don’t talk to the feds” sentiment could do great harm to the ability of our federal law enforcement agencies to perform their crucial function of keeping the country safe. I agree that such a concern is legitimate, but federal law enforcement officials need only look in the mirror if the time for assigning blame for that problem ever arrives, as it is heavy-handed political prosecutors like Robert Mueller and the overzealous buffoon who prosecuted Martha Stewart – interestingly enough none other than James Comey – who brought this systemic glitch to the fore.
My professional and personal feeling is simple: Unless one is the victim of a crime, the resolution of which the FBI or another federal authority has jurisdiction over, then no person on this rotating mound of earth, wind, fire and water should EVER speak to a “fed” of any stripe.
- POLICE BRUTALITY – IS THERE ANY SOLUTION?
The vast majority of us have a great deal of respect for police officers and the difficult job that they do. As with any profession (ahem), though, there are bad apples that can tend to spoil the bunch. I am regularly amazed to see officers continue to commit brutality and killings at relatively consistent levels year after year in spite of the fact that (a) virtually every citizen today carries a video recorder, and (b) the vast majority of patrolmen are now wearing body cameras. It begs the question: If the knowledge that their actions are almost certainly being recorded doesn’t curb police abuse, what will? I am not proposing here a comprehensive, multifaceted solution to this complex issue – I’ll leave that to the think tanks and other more learned public policy advocates. What I am suggesting below, however, is what I believe to be a concrete measure to redress the utter lack of accountability for offending officers in the criminal justice system. It seems to me the only way that we can solidify the public’s faith in the idea that police are not above the law is to ensure that those among them who do actually break the law are convicted and punished for the crimes they commit, just as would happen to you or me.
THE PROBLEM – A Conflict of InterestConsider also how rare it is to find a case where the police brutality is so heinous (or so unavoidably public) that authorities feel they have no choice but to seek prosecution of the offending officer. Rarer still is the sight of a member of law enforcement actually indicted by a grand jury, let alone convicted after a trial. You have likely noticed that almost always in these cases one of the first things officials do is announce that they are bringing in a prosecutor from a different city than that in which the subject officer works so as to supposedly avoid any appearance of impropriety, bias, or conflict of interest. Using a prosecutor from several towns away, though, does nothing to alleviate the pro-police bias that invariably pervades these proceedings. A city could bring a prosecutor in from Timbuktu and it wouldn’t change a thing. No matter how you slice it prosecutors and police are on the same team – and it shows in their unnatural inability to obtain indictments in these particular types of cases. To really understand why so many accused police officers escape indictment, one has to first have a rudimentary understanding of the grand jury process.
In a grand jury the entire process is controlled by the prosecutor. As an example, criminal defense lawyers are never allowed inside a grand jury hearing even if their client is on the witness stand. It is the prosecutor and the prosecutor alone who gets to select which people the grand jurors hear from and what evidence they see – or don’t see. Further, every single piece of evidence or witness the prosecutor does present goes unchallenged, save for the few questions that may come from grand jurors. A more stark indication can be found in the numbers – according to the federal Bureau of Justice Statistics, in 2010 out of 162,000 cases brought by US Attorneys, the grand jury failed to indict on a minuscule 11 occasions. This means that 99.9999% of the time that a US Attorney sought an indictment that year, the grand jury returned an indictment. As a former Chief Judge of New York State once said, a prosecutor could “indict a ham sandwich” if that’s what he wanted. From a different perspective, consider that a target of a federal grand jury investigation in 2010 had a better chance to make a hole-in-one in a round of golf than he did to escape a grand jury indictment. The point is that the prosecutor wields enormous influence over what will be the outcome of a given grand jury proceeding. And when a law enforcement officer is cleared by a grand jury or acquitted by a trial jury, invariably the prosecuting authorities will stand at a microphone and point to that grand jury or that trial jury, as the case may be, and say: “The system worked” or “the jury has spoken.” Most of the time, however, that characterization is 100% rubbish.
Frankly, most prosecutors assigned to criminally investigate a police officer “take a dive,” i.e., they deliberately present a weak case with the intention that the grand jury not return an indictment.[1] Our justice system only works as well as it does because of its “adversarial” nature; where opposing sides vigorously advocate for their client and a neutral arbiter (jury or judge) reaches a decision. Because of the cozy philosophical and professional relationship between police and prosecutors, however, these kinds of cases are not adversarial in any sense of the word. This clear institutional, determinative conflict of interest fundamentally skews the outcomes of the vast majority of criminal investigations of police officers in this country. The logical remedy, then, is come up with a solution that restores that adversarial equilibrium – one that removes the inherent bias from the process altogether.
THE SOLUTION – “Special Prosecutors” from the Criminal Defense Bar
I propose that, in every city in America that houses a criminal courthouse, there be selected from the private criminal defense bar a panel of seasoned lawyers who have significant trial experience to voluntarily act as “Special Prosecutors” in any case wherein the target is a police officer suspected of having committed a crime. Unlike prosecutors who work with police officers, criminal defense attorneys are routinely tasked with confronting and cross-examining hostile police officers who are the key or sometimes only witnesses against their client. We are constantly challenging members of law enforcement, trying anything and everything within legal and ethical bounds to attack their credibility and to expose them as forgetful or liars or unreliable louts (assuming any of those proverbial shoes fit). The point being that there is just a natural animosity between cops and defense lawyers – the kind that, if a criminal defense attorney were acting as a Special Prosecutor to investigate an alleged dirty cop, would all but eliminate concern about a less than zealous prosecution.
Of course, various details and logistics would need to be worked out for such panels and processes. For instance, (a) a defense lawyer acting as Special Prosecutor would likely also need the assistance of an actual prosecutor given that most criminal defense attorneys haven’t a thread of experience inside a grand jury room; and (b) how would these Special Prosecutors be paid, if at all? But if we are to be earnest about stemming what appears to be an unending, steady tide of police brutality and sometimes murder, we need a consequential solution. The current process in police misconduct cases being, for all practical purposes, a sham, my proposal of appointing a criminal defense lawyer as a Special Prosecutor will at least bring such matters back into the realm of our adversarial criminal justice system, where we have achieved our most reliable, even-handed and just results throughout our nation’s history.[1] This article from 2014 highlights everything that I have identified here that is wrong with our current system for investigating police criminality.
http://www.kansascity.com/news/local/article1907128.html - INVOLUNTARY PSYCHIATRIC COMMITMENT – THE OTHER VICTIMS OF THE AFTERMATH A SCHOOL SHOOTING.
Unfortunately, our public institutions are fraught with feckless individuals who regularly perform their duties by one rule above all else: “I’ve got to cover my ass.” I see it regularly in the criminal court system – glory to the unusual prosecutor or still more rare Judge who comes to his or her decision regarding a case disposition without regard for any potential backlash should the particular defendant one day be accused of committing another transgression. Backbone is simply a scarce commodity in the public sector. But in the aftermath of the most recent school shooting, I was just reminded about the weak-kneed nature of our school administrators in particular.
The case: A 15 year-old high school student with mild ADHD told a friend with whom he had a disagreement, “I’ll kill you.” His parents were promptly summoned to the school and told that their boy could not return until he went to the local hospital and received a psychiatric evaluation. Naturally, the parents brought him to the hospital immediately, hoping to get the necessary evaluation and clearance as quickly as possible so their son – who had recently turned his grades around in a positive direction – wouldn’t miss more than a day of classes. As expected, the hospital psychiatrist gave him a clean bill of health and sent him on his way.End of story, right? School asses covered, no? Apparently not, as the school couldn’t verify that the hospital psychiatrist had all of the relevant school records prior to making her assessment. So the next day the school administrators called the parents and told them that their son must GO BACK to the hospital for a new evaluation because the hospital hadn’t had enough information from the school – even though the boy had verbally told the psychiatrist about everything that was in the school record. The parents, again just wanting to get their boy back to school, dutifully brought him back to the hospital. A scant few hours later, this 15 year-old boy with no known psychiatric issues and who had never had so much as school detention, was in a 24-hour secure lock-down unit of the hospital in a 6×8 foot room with nothing but a prison-style bed, a television, and 2 crayons with which to write. In what I have since learned was the 2nd such commitment in a week since the Parkland, Florida shooting, this local high school had sent a child to get a psychiatric evaluation “clearance” in order to return to school and the child ended up ultimately requiring Probate Court intervention, days later, in order to be freed.
In this boys case it took four days, three nights, three separate 2-minute psych “evaluations,” a week of missed school, and one courageous Probate Court Judge, but this normal, most typical 15 year-old High School Sophomore is finally home with his loving, supportive family. Imagine what happens to the children who don’t have the family support or wherewithal to hire an experienced Connecticut criminal attorney to help them navigate the process – how many days, weeks or months do they languish in the abyss that is our mental health system? The sad irony is that this boy’s mental state is far worse now than it was before he set foot in that hospital; and there are two parents who will likely forever carry the guilt of having unwittingly been bamboozled into leading their child into the gallows of our vapid psychiatric apparatus.
These gutless school administrators aren’t protecting students – to the contrary, they merely allow school shooters to continue to rack up “victims” long after their barrel is cold.
- PRIMER ON CONNECTICUT GUN RIGHTS.
In addition to the 2nd Amendment to the US Constitution, forty states have their own Constitutional Right to Bear Arms. In Connecticut, the right is available to all citizens for both personal defense as well as to defend the state. Specifically, Article 1 Section 15 of the Connecticut Constitution states, “Every citizen has a right to bear arms in defense of himself [or herself] and the state.” The US Supreme Court and Connecticut courts have established, however, that this right is subject to reasonable regulation.
People Prohibited From Possessing a Firearm in Connecticut.
Connecticut abides by federal law that prohibits felons and those with documented mental illness from possessing firearms, but it has its own laws prohibiting others who cannot possess guns as well, including: Those who have drug and alcohol addictions; People in the U.S. illegally (handguns only); People convicted for serious or violent offense as a juvenile; People with domestic violence charges or retraining orders in any jurisdiction nationwide or in a foreign country; and People who have been admitted to a mental health facility as an inpatient with psychiatric disease or disabilities since October 1, 2013.
Anyone caught in possession of a firearm illegally will be subjected to a Class C Felony and, if found guilty, faces a mandatory $5,000 fine and a mandatory minimum 2-year prison sentence.
Some Connecticut Gun Regulations:
All gun sales in Connecticut require background checks, including personal transfers and gun show sales. In other words, there are no “loopholes” here. Connecticut also conducts their own background checks in lieu of depending solely on the FBI checks. In addition, all gun owners must report loss or theft of firearms immediately. Finally, after the school shooting in Newtown, CT, Connecticut banned so-called “assault weapons” and magazines that hold more than 10 rounds.
Steps to Obtain a Permit to Carry a Gun in Connecticut
The State of Connecticut does not differentiate between carrying a gun openly and concealed carry. Once you obtain a permit, you can choose to do either. The local police chief or other head of local law enforcement will determine whether a person is eligible for a carry permit.
In order to qualify, a person must be at least 21 years of age; must not have a felony record; must agree to use the gun only in a legal manner for self-defense including personal self-defense or have a law enforcement, military or personal or public armed security guard background; must be either a legal property owner, business owner or resident of the same jurisdiction of the carry permit application; must not have any “serious juvenile offenses” on his or her record; must complete a handgun safety course deemed valid by the Commissioner of Emergency Services and Public Protection, which must consist of no less than the NRA’s “Basic Pistol Course;” and can have no disqualifying criminal convictions, for instance Possession of Narcotics, Assault, Unlawful Restraint or Reckless Endangerment. All Connecticut handgun permits are valid for 5 years and may be renewed via postal mail or in person at the State Police Barracks.
Local police officials may deny a carry permit, though there must be either (a) a disqualifying conviction or circumstance such as described above, or (b) other supportable good cause. Anyone denied a carry permit may file an Appeal with the Board of Firearms Permit Examiners.
Where Does Connecticut Stand on Stand Your Ground Laws?
Connecticut is one of eleven states in the United States that have Castle Doctrine laws but with requirements to retreat from assailants in public. This means that people may ‘stand their ground’ when in their own private home, car or business by using deadly force if they feel their life and/or the lives of others are in imminent danger of death or great bodily harm but, if they are in public, they have a legal duty to first try to escape.
If you find yourself in a situation where you must use deadly force against a perpetrator and you are arrested, you must present some evidence that you feared for your life or that of another and that, if in public, you tried to flee the scene or there was no reasonable avenue of retreat. For a case like this, you will need to hire a top Stamford criminal attorney to assist with navigating the legal system.