Courts Crime and Punishment Criminal Justice

Innocent Until Proven…Yadda, Yadda, Yadda? Evidently Not.


A couple of alarming articles surfaced over the weekend that are must reads. First there was the piece from next week’s New Yorker in which Sy Hersh reveals that the Bush administration is stepping up covert operations in Iran. And then there is the following:


In the last few years I’ve seen the principle described below
play itself out in criminal court a couple of times, but always assumed I must be witnessing some kind of awful legal anomaly. Evidently not—according to a fascinating and horrifying article in Sunday’s Washington Times about how previous arrests and charges—even if the charges have been dropped or the defendant has been entirely acquitted—may still be used against a defendant when he (or she) is being sentenced for another crime. The concept is called “acquitted conduct enhancement” (nice little euphemism that) and it is yet another example of how we have gone completely off the rails with much of our sentencing policy in this country.

Here’s the opening to the article.

Nearly a year to the day before he resigned
, Attorney General Alberto R. Gonzales told his prosecutors to pursue the death penalty against a D.C. man accused of running a violent drug gang in Washington known as the “Congress Park Crew.”

But after at least four years of investigation, eight months of testimony and eight weeks of deliberations, a federal jury ruled the government couldn’t prove there was a criminal conspiracy called the Congress Park Crew, let alone that its purported leader, Antwuan Ball, 37, had committed any murders.

Jurors acquitted Ball in November 2007 on every count
of a massive racketeering, drug conspiracy and murder indictment except a $600, half-ounce, hand-to-hand crack-cocaine deal in Southeast Washington seven years ago.

Perhaps thinking his freedom was at hand, Ball cried when the verdicts were read
. Indeed, under federal guidelines, he could expect to be released within a few years.

However, federal prosecutors are asking U.S. District Judge Richard W. Roberts
to send Ball to prison for 40 years, basing their request partly on charges that were never filed or conduct the jury either rejected outright or was never asked to consider.

And then there’s an amazing letter
from one of the jurors on Ball’s murder/conspiracy trial. Here’s an excerpt [after the jump]. But please read the whole thing.

As you remember, Judge Roberts, we spent 8 months listening
to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly. No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.

What does it say to our contribution as jurors
when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case.


(Chapeau tip to Doug Berman at Sentencing Law and Policy who has covered this issue for some time.)


  • What a whiny juror. You can almost hear the whine coming through the ink. Why should I trust this one juror any more than the judge and federal prosecutors?

    It’s typical of liberals who prefer freeing drug dealers and terrorists rather than respecting our government and systems.

  • “Why should I trust this one juror any more than the judge and federal prosecutors?”

    Let’s see. I know there’s an answer here. Hmmmmm. Oh, yeah:

    Because that’s the way our legal system works? It seems we have this due process thingy. (See Amendments V & VI of document known as U.S. Constitution.)

  • Yeah, well the other eleven jurors weren’t whining. Juries have twelve people, so one oddball doesn’t carry much weight with me. And, it seems to me that judges are somewhere in the Constitution, too.

    That juror’s job was done…period! The new motions had nothing to do with him. Why does he butt in? Does he think that his case sets precedence? How can you listen to people like that pompous, self-important one-time legal participant?

    BTW, one of the very worst movies that I ever saw was “Twelve Angry Men,” in which we were supposed to laud the jurors for coming up with the “right” decision by ignoring all evidence and testimony and making up some of their own, probably like your buddy in the letter.

    A debate…over whether the Henry Fonda’s character put the prosecution to an unfair burden, raising questions in deliberations that were never raised during the unseen trial…. …while Fonda was able to counter individual arguments, he failed to overcome the cumulative weight of the evidence.

    Fonda’s character committed juror misconduct by introducing extrinsic evidence (the knife that he bought around the corner, offered to rebut the idea that the murder weapon was unique). …every jury is told they can only consider what they see and hear in court and can’t investigate for themselves, as Fonda did.

    [Fonda] notes that the defense was some young, apparently incompetent and out of his league, public defender

    Make me the thirteenth angry man.

  • Please get rid of the Perez Hilton-level “illustrations” accompanying the posts. They’re bush league.

  • Amendment 5:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [my emphasis]

    Amendment VI:

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. [my emphasis]

    Yeah, well the other eleven jurors weren’t whining.

    And you know this how? Please show me where in the law someone may be jailed for up to 40 years for charges never filed, let alone proven.

  • RP: And you know this how?
    Find letters from the other eleven. Absent that, there’s no evidence of them whining to put on a show.

    RP: Please show me where in the law someone may be jailed for up to 40 years for charges never filed, let alone proven.
    Which assumes that you’ve stated the situation correctly, which is highly doubtful. If you want answers, ask the judge. That matter is up to the court, and appeals may be made to the Supreme Court–which even allows foreign terrorists access to our legal system.

    You guys sure love protecting drug dealers and terrorists, but see some rationalization to put our Pres. and V.P. in prison.

    Now, explain to me where there is a “right to privacy” in the Constitution. That’s a tougher assignment.

  • The real crime here is the total failure of the Congress o conduct what the FEDERALIST called “The Grand Inquest of the Nation”, i.e. Impeachment Hearings against the whole Criminal enterprise known as the Bush Administration. We will be paying a high price for the failure to bring these thugs to account.

    (Though, if I were John Yoo, David Addington, Dick Cheney, Alberto Gonzales, et. Al, I’d sure avoid foreign travel once I’m out of office!)

  • Woody, if you want a “Right to Privacy” see any number of cases but GRISWALD v. CONNECTICUT is as good a place to begin as any. Also see the seminal article on same in HARVARD LR by Brandeis and Warren (1890 something – look it up) which defined the right as the “Right to be left alone.”

  • Here in Orange County we have an 18 year old high school student (Tesoro High School in Rancho Santa Margarita) that is facing up to 38 years in prison for the unspeakable crime of — Hacking the school computer — and changing his grades so that he might get into colleges.

    So that fact that the head of a drug gang in DC might get 40 years for selling a drug that destroys lives does not surprise me.

    It seems that prosecutors and DA’s are no longer searching for justice, but instead are looking for ways to pad their resumes.

  • Good lord, Pokey. What a story. I just checked it out a little further and may post on it if I can get any new info.

    Thanks for your feedback on the illustrations, Evan. My esteemed LA Times pal David Zanizer doesn’t like them either. (Well, mostly he doesn’t like the neonish primary bright colors.) But the majority who comment on them do; even some of the persnickety art director types. And I enjoy them so I’m sorry to say they stay. (It’s likely the “bush league” side to my personality that’s attached to them.)

  • Celeste, who’s more important…Evan (a nobody) and David Zanizer (a soon-to-be has-been) or your esteemed pals Woody and Pokey, who like the spray painted pictures?

    Those pictures distinguish you from other bloggers and are a nice touch. In fact, your selection of the pictures and your comments on them prepare us for the discussions and reveal your emotions about the various subjects–and, give me one more thing over which to disagree with you. Also, without them, I wouldn’t know the looks of Merlin the coffee-sprayed cat and Loup-Loup the killer wolf-dog.

    Keep them.

  • Find letters from the other eleven. Absent that, there’s no evidence of them whining to put on a show.

    Your statement implies that you know how the others feel. Despite your delusions of grandeur, you have no basis to make that claim. Given your generally lazy and whiny (“I don’t have time for this,” “I can’t be bothered with reading three hundred words”), response to such requests and the fact that your usual method of argumentation is mere, unsubstantiated contradiction followed by insults such as “pathetic”, it is not unreasonable for an independent observer to find your comments less than credible and tendentious at best.

    Indeed, the level of disgust/annoyance/outrage that will lead anyone to write a letter in protest is far higher than usually given credit for. Many may very well feel the same way this juror feels from the juror, but didn’t write a letter or the letter was written, but did not reach the writer who wrote the story.

    Which assumes that you’ve stated the situation correctly, which is highly doubtful.

    How have I stated this incorrectly? Show some proof. Astonish all of us.

    You guys sure love protecting drug dealers and terrorists, but see some rationalization to put our Pres. and V.P. in prison.

    When you have nothing else -which is normally the cas with you – start whipping out the strawmen. Please cite where I advocated putting our president and vice-president in jail.

  • Just a nobody here chiming back in, but Woody said that the illustrations “distinguish you from other bloggers”. My point was that they look exactly like what Perez Hilton does. Maybe I also don’t like them because they remind me a lot of the artwork for “Midnite Vultures,” my least favorite Beck album.

    But all that aside, this is quickly becoming one of the most important places for LA news, now that the Weekly is fading into oblivion and CityBeat…well…it has it moments, but I feel like I’m reading an OC Weekly from about 5 years ago that’s been updated, and without Gustavo Arellano.

  • Hey, Evan, very glad to have you here and to have your comments.

    Honestly, not everyone likes the photo scribbles, but as I said most seem to, for whatever reason. And I actually enjoy doing them as I’ve done similar scribbles on…well…a lot of things, for years, so—Perez Hilton, aside—they’re consistant with a decidely loopy side to my own personality.

    And thanks so much for the kind words about WLA. Gradually we will be bringing on more voices so, with any luck, we’ll be able to cover more issues in coming months.

    But please continue to respond. Your voice is welcomed.

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