A Criminal Prosecutor and Public Defender

I posted an article commenting on the federal government’s refusal to free prisoners that it knew it had mistakenly imprisoned. But it’s possible for the government to do worse: It can imprison someone knowing that the crime he supposedly committed had not happened. The government did that to me.

As I said in Criminal Judges and Justices, I was accused of sexual assault and my lawyer coerced me into pleading guilty—but not to sexual assault. I pleaded guilty to kidnapping. However, the things I was alleged to have done did not violate the kidnapping statute.

The (relevant part of the) kidnapping statute (18 U.S.C. § 1201(a)(1)) says,

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when- (1) the person is willfully transported in interstate or foreign commerce….shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

Criminal statutes are interpreted in terms of “elements”, which are the things that a person has to do to be convicted of violating the statute. For this particular statute, the person has to do three separate things. First, he must “seize[], confine[], inveigle[], decoy[], kidnap[], abduct[], or carr[y] away” the victim. Second, he must “hold[]” the victim “for ransom or reward or otherwise”. Third, he must “willfully transport[]” the victim “in interstate or foreign commerce”.

The alleged victim gave the authorities three different versions of what I allegedly did but they did have similar outlines. The relevant parts of the common outline are: I persuaded her to come to my home; she traveled to my home, crossing state lines; I sexually assaulted her at my home.

The first and third elements of the kidnapping statute are easily satisfied by the allegations; the persuasion is an inveigling and she traveled interstate. The second element requires that I have held her for some purpose. The alleged purpose is sexual assault—but the allegations contain no holding. Since the allegations did not contain all of the elements, I did not violate the kidnapping statute.

So how did I get convicted of a kidnapping?

After my arrest, I was assigned a federal defender, Thomas Belsky. He didn’t get me bail (there is no evidence he tried) so I was stuck in prison with essentially no contact with the outside world. After I was softened up by four months of this, he told me I was going to lose at trial. This, I was ultimately told, would net me a 24 year prison term but pleading guilty would cut it to 12 years.

Belsky understood that I wasn’t likely to accept the plea, softening up or no. So, without telling me, he spoke to the prosecutor, Kari Dooley, and asked her if I might plead guilty to kidnapping. She replied,

I am writing, as promised, having fully considered your request that the government agree to resolve this matter through a plea of guilty to a charge of kidnapping. While I believe that there may be times when the circumstances of an Internet enticement/travel case also satisfies the legal elements of kidnaping (on an inveigle or decoy theory), I do not believe that this is such a case. Moreover, such a disposition does not, in the government’s view, appropriately reflect the true and full nature of your client’s conduct. [Letter from Dooley to Belsky, dated 10/1/2003]

Five days later, Belsky was still trying to get me to plead guilty to a sexual offense and had me dragged off to the courthouse to enter a plea. At the courthouse, he made a last ditch effort but it failed. After several go-rounds where he left the room to talk to Dooley and returned with new deals that still had me pleading guilty to a sexual offense but with slightly shorter sentences, he returned with a deal that had me pleading guilty to kidnapping, with a 6 year sentence. I would have rejected that too but he told me that I had actually kidnapped the girl!

When I was in prison, working on my habeas corpus petition, I had the “luxury” of way too much time on my hands. One way I spent that time was reading kidnapping cases. I read every last kidnapping case in LexisNexis, which means that I read every published opinion on the federal kidnapping statute (most of them twice, because I read them on paper before I had access to LexisNexis) and all of the unpublished opinions that LexisNexis had collected.

I saw no cases, not one, where someone had been convicted of kidnapping on a set of facts similar to my case. However, I did see several cases that either dealt with similar facts and said that those facts do not add up to kidnapping or dealt with different facts but which reasoned that facts like those in my case do not add up to kidnapping.

There’s no way that Dooley would have done the complete survey that I did. But she surely would have checked the standard references and those references include the same cases that told me that my alleged actions were not a kidnapping. That’s why she initially told Belsky that the facts of my case would not support a kidnapping charge.

So why did Dooley let me plead guilty to kidnapping? She could not have changed her mind about whether there was a kidnapping; the law is clear that there wasn’t. An examination of the evidence reveals why: No jury was going to believe the alleged victim and there was no other evidence of sexual assault. If Dooley wanted a conviction, she had to get me to plead guilty to something. So, even though she knew that I hadn’t kidnapped the girl, she agreed to let me plead guilty to kidnapping.

The federal courts have a safeguard that is supposed to prevent this sort of thing from happening. Before a judge can accept a guilty plea, he has to talk to the defendant and confirm that the defendant understands the elements of the offense. He must also get the defendant to admit to actions that correspond to the elements. Finally, he must verify that the defendant knows which actions correspond to which elements. That safeguard did not work in my case. Here’s what happened.

THE COURT: Now, Ms. Dooley, if you will please explain the elements of the offense, and by “elements,” Mr. Wells, I mean those facts the government has to prove, each one of them beyond a reasonable doubt, before the defendant could be convicted, if you decided not — Mr. Wells, not to change your plea, and instead go to trial.

MS. DOOLEY: Your Honor, if the case went to trial, the government would have to establish the elements that the defendant unlawfully took and held the victim against her will, through decoy or inveiglement; that the defendant did so for some purpose; and that the defendant willfully transported the victim in interstate commerce, [p.42-43 of the plea hearing transcript]

This is an incorrect statement of the elements. The elements (in summary) are: take, hold for a purpose, and transport interstate. Dooley’s summary is take and hold for a purpose and transport interstate. She conflated the taking and the holding.

and if I may, Your Honor, though the facts of this case do not make themselves readily — a kidnaping readily apparent, I’d like to expand a little bit on the elements, as the courts interpret those terms. [p. 43]

Well, the facts of this case do not make a kidnapping, period. But the real importance of Dooley’s statement is that it put the court on notice that it had to take special care to ensure that I understood how the facts related to the elements. Anyway, Dooley was given permission to expand, and expand she did, all the way to the top of page 45. However, I’ll skip the analysis, as it’s somewhat technical and would double the length of this post. The executive summary is that, though she talked a lot about holding, she nowhere explained the sort of holding that supposedly happened in my case. Anyway, onward….

THE COURT: All right. And, Mr. Wells, do you understand this charge?

THE DEFENDANT: Yes, I do.

THE COURT: Have you had an adequate opportunity to discuss the charge, and the kind of interpretation of the charge that Ms. Dooley has just spoken about, with Mr. Belsky?

THE DEFENDANT: Yes, I have.

THE COURT: Are there any questions that you want to ask either him or me about the crime that you’re charged with, or what elements the government would have to prove in order to show that you’re guilty of this crime?

THE DEFENDANT: No. [p. 45]

This seems reasonable but, in fact, it was judicial laziness. If an offense is legally simple, it’s often enough for the court to explain the elements (or have the prosecutor explain them on behalf of the court) and ask the defendant if he understands them. But this was a kidnapping charge and kidnapping by inveiglement is not legally simple. Moreover, Dooley had warned the court that this was a subtle case. The court really should have made sure that I understood the elements by asking me about them. Had it done so, it would have discovered that I had lied when I said that I understood them.

THE COURT: All right. Then at this time, I’m going to ask the prosecutor to summarize what it is that you did that makes you guilty of this charge, and also what evidence the government would use to prove you guilty, and I’m going to ask you, Mr. Wells, to listen carefully, because when she’s finished, I’m going to ask whether you agree with her version of what you did. Ms. Dooley? [p. 45]

Dooley then went on and gave her version of the facts. Had I agreed that her version was true, I’d have admitted to the facts that (supposedly) supported my guilty plea. But that’s not what happened.

THE COURT: Thank you.

MR. BELSKY: Your Honor, could I have one moment with Mr. Wells?

THE COURT: Yes.

(pause)

MR. BELSKY: Thank you, Your Honor.

(pause)

THE COURT: All right. Mr. Wells, I saw you listening to Ms. Dooley. Do you agree with her summary of what it is that you did?

THE DEFENDANT: Her summary does not describe what I recall was happening. [p. 52]

Belsky had not actually discussed the nature of this charge with me, beyond a little vague hand waving. Nor had he prepared me for this hearing; I had no idea what was expected of me beyond saying that I was guilty of the charge. Up to this point, I had told whatever lies I felt the occasion demanded but, because Belsky hadn’t prepared me, I did not know that I had to admit to specific facts or my plea would not be accepted.

Belsky knew that I was going to deny all of the sexual allegations; I had told him that I flatly refused to admit to any sexual misconduct. That being the alleged purpose of the kidnapping, the court could not have accepted my plea after such a denial. So, Belsky stepped in and told me that I couldn’t deny any details; my fuzzy denial was the result.

That should have prompted the court to ask me exactly what I agreed to and what I denied. But Belsky again piped up:

MR. BELSKY: Your Honor, Mr. Wells and I have discussed this in detail, and while we don’t dispute that that’s what the witnesses would say if they were called to testify, Mr. Wells does dispute the accuracy of the majority of some of the statements that were made. [p. 52]

(This was an outright lie. At no time did Belsky discuss the government’s case against me, except in generalities. Dooley’s summary was the first time I heard anything specific about what I was alleged to have done.)

That being said, he still believes and admits that there are facts that are sufficient to satisfy the elements of the offense, namely that he did indicate something to the young girl who — that was not true, and that that was an incentive, or induced her to come with him.

Given the status of the law, even though the girl appeared to go willingly, given that Mr. Wells did say something false to her to induce her to go, that deception overrides the consent.

Furthermore, Mr. Wells did do this with the intent of having her come and be with him for a period of time, for something of his own purpose, and that obviously, he did transfer — travel in interstate commerce with this individual. [p. 53]

This has more than one problem. First, it’s legally meaningless. The court had to ask me to make the admissions; my lawyer was not allowed to make them on my behalf. Second, these “admissions” are not admissions in the relevant sense. It wasn’t enough to say, “I told some lies”; I had to admit to the lies I told. (This would have been difficult since I hadn’t lied to the girl and Belsky hadn’t warned me that I needed to invent some.) Third, these “facts” don’t add up to a kidnapping. Just as Dooley had done before she gave her “facts”, Belsky conflated the taking and the holding.

The court did know that it had to get me to make some admissions so,

THE COURT: All right. So, did you, Mr. Wells, beginning on October 25th, of 2002, first by computer, and then subsequently by the telephone, speak to the young woman who’s the victim in this matter, and by telling her some things that weren’t true, induce her to agree to come to your residence?

THE DEFENDANT: Yes. Yes, I did.

THE COURT: All right. And the purpose of doing that was to satisfy a plan ora need of your own rather than something to do with counseling or treating this girl?

THE DEFENDANT: yes.

THE COURT: All right. And in the course of doing that, you transported her from Connecticut to New Jersey through Pennsylvania?

THE DEFENDANT: Yes. [p. 53]

As you can see, the court let itself be led by the nose here. It followed the form (that required me to do the admitting) but ignored the substance (that required me to make specific admissions). Moreover, it didn’t ask me about the actual elements of kidnapping but rather the elements as Dooley and Belsky had fudged them.

The end result is that I got through the hearing without making the admissions I was required to make and without such admissions as I had made adding up to the crime of kidnapping. The court itself was fooled (or pretended to be fooled) into a mistaken understanding of the elements of kidnapping. The two lawyers worked actively to make all this happen. The court was, at least, lazy and failed to follow the law that required it to ensure that my guilty plea was legitimate.

This was bad enough but my habeas proceedings were, possibly, worse. Stay tuned….

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