Criminal Judges and Justices, Redux

In Criminal Judges and Judges, I described how my federal defender forced me to plead guilty and how the courts allowed him to get away with it. In A Criminal Prosecutor and Public Defender, I described how the defense and government attorneys, both federal employees, conspired to get me to plead guilty to kidnapping—even though they knew that there had been no kidnapping. I ended the latter with, “but my habeas proceedings were, possibly, worse.” Here’s what I meant.

To be guilty of violating the kidnapping statute, I had to “take” the alleged victim, “hold” her for some purpose, and transport her interstate. However, according to the court that ruled on my habeas petition,

Mr. Wells acknowledged that he made untrue representations to the victim in order to induce her to come to his house [this is a taking by inveiglement], that he did so to satisfy a plan or need of his own rather than to counsel or treat her [this is a purpose], and that he transported her from Connecticut to New Jersey [this is interstate transport] knowing it was against the law. Nothing more was required to ensure that Mr. Wells’s guilty plea was knowing and voluntary and was supported by an adequate factual basis. [p. 22 of the district court’s ruling]

It’s easy to see that the facts don’t equate to a kidnapping. A kidnapping requires the victim to be held and the facts don’t contain a holding. My plea should never have been accepted in the first place and, when I challenged it in my habeas corpus proceedings, it should have been set aside. However, the court didn’t see it that way.

A “holding” under § 1201(a)(1) implies an intent to restrain the victim’s movements contrary to her wishes. Chatwin v. United States, 326 U.S. 455, 460 (1946). In other words, a victim is “held” or detained when the defendant transports her without her consent. See United States v. McGrady, 191 F.2d 829 (7th Cir. 1951) (noting that the holding element of the statute can be achieved by mental as well as physical means); United States v. Lewis, 662 F.2d 1087, 1088 (4th Cir. 1981); United States v. McBryar, 553 F.2d 433, 434 (5th Cir. 1977). Where, as here, kidnapping is accomplished by inveigling, the “holding” is implicit in the kidnapping and transporting, since inveigling necessarily contemplates that the victim’s apparent consent was in fact obtained by deception. Cf. United States v. Sanford, 169 F.2d 71, 72 (8th Cir. 1948) (inveigling victim to eventually rob him implied that he had not given consent, although it appeared he had); United States v. Boone, 959 F.2d 1550, 1557 (11th Cir. 1992) (noting that an inveigled person cannot validly consent to be transported because the willingness to be transported is the result of the defendant’s deception). [p. 20-21]

The court misrepresented Chatwin. Chatwin said that a holding is an intentional restraint of a victim against his will, not “[a holding] implies an intent to restrain the victim’s movements contrary to her wishes.” That is, a holding requires an actual restraint, and an actual desire to be not restrained. (In fact, Chatwin concluded that the alleged victim in that case could not have been held because, first, she was persuaded that she ought to cohabit with her alleged kidnapper and, second, because she was free to come and go at will.) Moreover, Chatwin did not discuss the transport element at all, much less how lack of consent might interact with interstate transport to produce a holding.

The court asserted that, “In other words, a victim is ‘held’ or detained when the defendant transports her without her consent.” and then restated that as, “Where, as here, kidnapping is accomplished by inveigling, the ‘holding’ is implicit in the kidnapping and transporting, since inveigling necessarily contemplates that the victim’s apparent consent was in fact obtained by deception.” Although the court cited lots of cases, not one, from Chatwin on down, said anything even remotely like that. No court (other than this one) has ever allowed that merely inveigling someone across state lines could be a kidnapping. To the contrary, when courts have addressed the issue, such as in Chatwin and Boone, they have concluded explicitly that merely inveigling someone across a state line does not suffice for a kidnapping.

As I discussed in Criminal Judges and Judges, the court gave a similarly bogus justification for rejecting my claim that my lawyer’s failure to investigate required setting aside my guilty plea. I made many other claims, such as the claim that my lawyer failed to call to the court’s attention an error in the sentencing calculation that added almost two years to my prison term, which the court rejected on equally specious grounds. Either this judge of fifteen years experience was totally incompetent, impossible given her many other rulings on record, or she willfully twisted the law in order to deny a habeas petition that she knew the law required her to grant.

In order to appeal the denial of my habeas petition, I needed to get a certificate of appealability. To get one, I merely needed to show that reasonable jurists could debate the court’s ruling. That was easy to show for the claim I discussed here, as several courts have addressed the very same issue but came to diametrically opposed conclusions.

Well, the court refused to give me a certificate of appealability. No surprise there. The appeals court also did. Big surprise there. That, however, wasn’t the end.

When someone loses an appeal, he may ask the Supreme Court to review his case. Most of the time, the Supreme Court refuses to even look at it. However, once a habeas petitioner is denied a certificate of appealability by the lower courts, he has the option of applying to a Supreme Court justice for one. The justice must then actually look at the case and either grant or deny a certificate of appealability. In my case, I was clearly entitled to the certificate. However, Justice Ginsburg said no. Then I asked Justice Thomas, who handed my application off to the whole Supreme Court, which then said no.

In short, one district court judge, three appeals court judges, and at least five Supreme Court justices decided that they were above the law, so that they could preserve a conviction that they had to know was illegal. What happened to me had nothing to do with justice.



Criminal Judges and Justices

Back in 2002, I was accused of sexual assault by a 15 year old girl. The US District Court of Connecticut assigned me a federal defender, Thomas Belsky. Belsky failed his professional responsibilities at almost every turn and thereby coerced me into entering a guilty plea. His criminal behavior put me in prison for just under nine years. However, this essay is not about him but about the courts, which allowed him to get away with his villainy.

When a defense lawyer fails to do his job, his victim may file a habeas corpus petition. (Actually, I filed something slightly different. However, I’m writing this essay for legal laymen, so I’m going to gloss over legal technicalities and skip over things that didn’t apply to my case.) If the court grants the petition, it has to, as much as possible, reset the criminal proceedings to just before where the lawyer failed. For example, if the lawyer advises his client to plead guilty where a competent lawyer might have advised him to go to trial, the guilty plea is set aside. The defendant gets to decide anew, hopefully with a competent lawyer’s help, whether to plead guilty or go to trial.

My habeas petition was really large because I detailed all the things that Belsky did wrong. In this essay, I will detail just one of the claims that required setting aside my guilty plea: Belsky did not investigate my case and thereby made my plea involuntary. To win on this claim, I had to allege in my petition and later prove in a hearing:

  • Belsky did not investigate my case.
  • No competent lawyer would have failed to investigate my case.
  • There was a reasonable probability that, had a competent lawyer investigated my case, he would have advised me that I had a good chance at trial.
  • Had I been so advised, I would have gone to trial.

Here’s what the district court had to say about this claim. The quotes are all from the court’s ruling.

Next, Mr. Wells contends that counsel was ineffective in advising him to plead guilty without conducting an investigation, and thus claims that his guilty plea was not knowing and intelligent. [P. 15 of the district court’s ruling and I’ve omitted a footnote]

I had alleged that Belsky didn’t investigate, and the government didn’t deny my allegation. So, the court accepted that Belsky did no investigation and acknowledged that this is potentially grounds for setting aside my guilty plea.

According to Mr. Wells, if counsel had conducted an investigation of the victim, he might have obtained evidence showing that she lied, was mentally disturbed, manipulative, and had told three different stories about their encounter, [P. 15]

This is the court’s summary of what I alleged Belsky should have investigated. It’s rather incomplete, but never mind that.

and this information should have caused counsel to advise Mr. Wells that he had a ‘good chance’ at trial.

If counsel had given him such advice, Mr. Wells says he would have insisted on going to trial. [P. 15-16]

With this, the court completed its recognition that I had alleged sufficient facts to require vacating my guilty plea.

Putting aside the fact that this argument is, in essence, not about the scope of counsel’s investigation, but rather “a complaint about strategy cast in investigatory terms,” see Greiner v. Wells, 417 F.3d 305, 322 (2d Cir. 2005) (where petitioner’s “failure-to investigate” and “failure-to-introduce evidence” arguments are identical, they implicate trial strategy), and even assuming, arguendo, that counsel acted unreasonably by not undertaking an investigation, [P. 16 NB: The Wells case the court cites has nothing to do with me; the name is a coincidence]

Once the legal babble is stripped away, what the court said is that Belsky’s decision to do no investigation was one that a competent lawyer might have made. However, that simply is not the law. Barring extraordinary circumstances (none of which were even suggested in my case), a lawyer must investigate the case against his client.

Mr. Wells has failed to demonstrate that the investigation he describes would have uncovered sufficient exculpatory or favorable evidence that would have caused competent counsel to recommend against pleading guilty to kidnapping and go to trial on the three-count indictment. [P. 16 and the ruling goes on for three more pages detailing what I had failed to demonstrate]

To explain what’s wrong with this, I need to explain a little habeas arcana. To win on my claim, I had to allege and prove four things. Suppose that I had only alleged three of them. A hearing would have been pointless, since proving my three allegations would not have justified granting the petition. In a situation like that, a court is allowed to dispense with the hearing and deny the petition. To do this, the court must prove that the petitioner can’t win even if he proves all his allegations at a hearing.

The court didn’t give me a hearing, which means that it was obligated to do the proving. That is, the court was obligated to prove that no matter what an investigation turned up, competent counsel would have told me to plead guilty. I wasn’t obligated to prove anything. Yet, here the court is denying my petition because I hadn’t proven an allegation.

Any judge who deals with criminal cases knows that a defendant’s lawyer must investigate the case against his client. Any judge who deals with habeas corpus cases knows that he cannot dismiss a petition for failure to prove an allegation unless the petitioner has been given a hearing at which he has an opportunity to prove that allegation. This judge knew that Belsky had done wrong. She knew that she had not given me an opportunity to prove my case (she denied my request for a hearing later in that very same ruling).

A habeas petitioner doesn’t have the right to appeal the denial of his petition. He has to get a “certificate of appealability”. This judge refused to give me one, so I asked the appeals court for one. Getting a certificate of appealability should have been easy; all I had to show was that the ruling was debatable. It was more than debatable; it was clearly wrong.

The appeals court refused to give me the certificate of appealability, without giving a reason. The Supreme Court could not be bothered to hear my case.

This is intended to be an essay, not a book. I therefore haven’t discussed the numerous other claims in my habeas petition. However, the district court rejected them all, largely with equally spurious verbiage. The appeals court refused a certificate of appealability on all issues, giving no reason, and the Supreme Court wasn’t interested in any of them. Nor have I detailed how the Supreme Court itself violated the law when I asked it for a certificate of appealability (on another issue). If one puts all this together, what it adds up to is a judicial system made up of judges who only obey the law when it suits them. When it doesn’t, they pervert the law or hide behind procedures that allow them to ignore the law.


Who Is the Criminal, the Convict or the Government?

I recently read an article in the online USA Today, Scores in N.C. are legally ‘innocent,’ yet still imprisoned, which should give anyone pause. Here’s what it says:

There is a federal law that says that a felon may not possess a gun. The federal government thought that certain North Carolina crimes were felonies. They imprisoned a bunch of people who had committed those crimes and were later found with a gun. Now they realize that those crimes were not felonies and that these people are not guilty of the crime they are in prison for. Instead of trying to get these people out of prison, the federal government is doing its best to keep them in prison.

I could say a few things about this. However, it’s already been said by, among others, the Supreme Court and the authors of the Constitution:

Berger v United States, 295 U.S. 78, 88 (1935):

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Imbler v. Pachtman, 424 U.S. 409, 427n25 (1976)

The possibility of personal iiability also could dampen the prosecutor’s exercise of his duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At trial, this duty is enforced by the requirements of due process, but, after a conviction, the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. Cf. ABA Code of Professional Responsibility EC 7-13 (1969); ABA, Standards, supra, 3.11.

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort….

Constitution of the United States of America, Amendment V

No person shall … be deprived of life, liberty, or property, without due process of law….

The Mutation that Will Kill America

The authors of the Constitution sought to create a government that would do only what was necessary for a government to do and that would respect individual rights in the doing. What they wrote was flawed in many ways, most notably in its sanctioning of slavery. Yet, though that resulted in civil war, neither it nor the other flaws in the Constitution doomed America. It was trust that the courts would properly interpret the Constitution that sealed America’s fate.

The Constitution expresses what the government may do by stating its various powers. So, for example, “The Congress shall have power to lay and collect taxes”. It sometimes limits the powers, as in, “No tax … shall be laid on articles exported from any state.” However, the Constitution is almost mute as to what the government may use its powers for. Although the Constitution’s authors had definite ideas about that, the courts care little what they intended or even whether the government uses its powers for legitimate purposes.

It’s been that way pretty much from the beginning. For example, there was a case back in 1824, Gibbons v. Ogden, that concerned the limits of Congress’ power to regulate interstate commerce. The particulars of the case are dead history but part of the Supreme Court’s reasoning is profoundly important. The Court reasoned that the authors of the Constitution expressed themselves fully in the words of the Constitution and thus that the only limits to the government’s powers are those found in the text of the Constitution. The government could use its powers for good or for evil, without regard for their intended purposes, and the only check on government misuse of its powers was to be found at the ballot box. In contrast to the Court’s rejection of external limits to the powers granted to the government, the Court has elsewhere eagerly embraced extra-Constitutional limits to the rights protected by the Constitution.

Gibbons remains the law of the land, with predictably awful consequences. In the 1942 case of Wickard v. Filburn, the Supreme Court ruled that Congress could tell a farmer that he could not feed wheat he’d grown on his own farm to his own farm animals, on the ground that doing so could affect interstate commerce. And in the 2005 case of Gonzales v. Raich, the Supreme Court ruled that Congress could forbid the purely intrastate use of marijuana for medical purposes, applying the reasoning of Gibbons and Wickard. What’s truly revolting is that the Supreme Court observed that medical marijuana could save lives—and this fact played absolutely no part in the Court’s reasoning.

In today’s highly interconnected world, most activities affect interstate commerce and so fall under the government’s power to regulate interstate commerce. In combination with the government’s other powers, notably the virtually unlimited power to tax, essentially every aspect of American life is subject to some kind of government control. The Constitution’s authors may have intended a limited government that protected individual rights but what America now has is Leviathan.

It is easy and proper to blame Leviathan on those in government who rejected limited government and individual rights. Yet, as the Supreme Court said, the American people have the power to restrain their government. They chose not to. Instead, they demanded that the government take on burden after burden, and ceded right after right that the government said (usually correctly) it had to abrogate if it was to carry those burdens. How did this come to pass?

The Constitution’s authors understood rights as limits on government action. However, historically speaking, the ink was barely dry on the Constitution when a new kind of right was invented. The American people decided that they were entitled as individuals to goods and services that were not earned by their own efforts. Of course, it would not do for each person to decide what he was entitled to and take it; that would be theft. Instead, the government was given the jobs of deciding who was entitled to what and of expropriating what was necessary to provide the entitlements.

Americans demanded ever more and diverse entitlements and, today, most people believe that government should provide anything a person might need. Today’s political fights are mostly over what qualifies as a need and how the needs should be met. Politics has ceased to be about solving the problems of the polity; it has become the whining of children demanding their turn at the public teat and the wails of those sacrificed to the public’s gluttony. No matter how principled, politicians have had to become panderers—today, most are proud to be—pimping the government to obtain votes. And the courts, having abandoned their responsibility to apply the principles of limited government and individual rights when interpreting the Constitution, play Pilate to the demands of the people.

It is easy to see where the voracious demand for entitlements will take America. The signs are visible today. Entitlements continue to grow. As people complain about taxes, the government cuts corners on the entitlements it provides directly and compels the private sector to provide others. Entitlements are “paid for” by borrowing, inflation, and neglecting the legitimate purposes of government. Expropriation and regulation sap productivity. The government and the public engage in massive denial. And then….

One day, America wakes up to a government that can’t pay its bills. So, it prints money—hello, hyper-inflation. The private sector is also tapped out—and can’t even print money. Those who depended on entitlements have to hope for charity—from those barely able to survive, much less support hordes of parasites. Far too many people, steeped in the belief that they are entitled to that which they did not earn and who therefore never learned how to earn those things, latch onto some con man who promises to give them what they demand. We’ve seen this movie before, in many variations…what comes after will not be America, no matter what it is called.

And that is an optimistic scenario.

Americans could reject en mass the idea of entitlements and demand of each person that he be responsible for himself or suffer the consequences. Elected officials—and several of their successors—could commit political suicide by refusing to perpetuate the entitlement society. Or, the Supreme Court could do an about-face that would require dismantling most of the government. None of these have any reasonable chance of happening, so America cannot escape its fate.

It is no news that the public is swayed by passion and desire. To give it absolute power would mean a society enslaved by whim. Elected officials, acting within the limits imposed by a constitution, should damp the public’s excesses. Yet, to get elected, those officials must heed the public’s demands, even the illegitimate ones. In the interplay between electorate and elected, abstract principles take a back seat to passion and desire. Courts, isolated from politics, are the reflective mind that should ensure that principle is not sacrificed to exigency.

The American courts abandoned that essential function. That left no part of the government able to curb abuses of power instigated by, approved of, or tolerated by the public. Such abuses were then inevitable. The cancer of entitlements will kill America but the mutation that allows this disease to flourish is the courts’ abandonment of a principled interpretation of the Constitution.