Power Of The Prosecutor

This essay was commissioned by a friend, who shared with me an article from Huffington Post.  The article deals with the incredible power that prosecutors have in today's justice system.  This article does not address the situation in context to sex offenses, which correspond to the claims of the author perhaps even more glaringly than his own assertions.  The full article can be found at www.huffingtonpost.com/2013/01/16/the-power-of-the-prosecutor.

As I have mentioned in other essays, the prosecutors in the legal system have an inordinate amount of power and very few checks as to the abuse and manipulation of that power. The author, Radly Balko, addresses some of these and I'd like to illustrate how they fit into sex offense cases.

"There are too many laws... It is nearly impossible for layperson to keep track of all the laws that are created and modified in any given year."  The civil libertarian and defense Atty. Harvey Silvergate has argued that most Americans know unknowingly commit about three felonies per day." This is obviously a frightening statistic, and in the case of "sex crimes" they are added and modified continuously.

For example, ARS13-3553. the statute under which I was convicted, does not have any exceptions for exemptions built into it.  This means that my ex fiancée who viewed and transported the images in question to the police as well as the police, and the justice system personnel that exhibited these images, are guilty of the same crime than I am.  The power or willingness to enforce or prosecute this law seems to be an arbitrary decision based on the whims of law enforcement and justice system personnel.  I do not wish to imply that Jess, or the police should be charged, but the fact is that they could be and have violated the statute for which I am serving time.

Prosecutors are also protected by immunity that "shields them from liability, no matter how egregious their mistakes." How does this provide a truly objective system?  In Arizona at least, a judge will nearly always rely on the prosecution's case without any investigation to the claims.  Defense attorneys, especially public defenders, will not bother to investigate either, leaving the prosecutor free to embellish, manipulate, and even break the rules of the justice system.

As Balko states, "the prosecutor's job is no longer about enforcing the laws, but about choosing which laws to enforce."

"The laws are vaguely and broadly written."  This is evidenced by the previous scenario regarding ARS13-3553.  Also, the law includes: recording, filming, photographing, duplicating, developing, distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing, or exchanging in any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." In other words viewing an image is viewed with the same severity as actually taking pictures with intent to distribute.  The question of intent is completely absent from the equation.

In fact, in Arizona, a conviction for child molestation only requires proof of "knowingly and intentionally touching the genitals [of a child]." This may appear straightforward, but the state need not prove sexual intent or motivation.  Yet without sexual intent, the innocent actions perform daily by doctors, parents, child care workers, and others become repugnant actions of the predator needing to be punished.  Is not the annual "hernia check" performed in our school days the "intentional touching of the genitals"?  Dr. and gynecological visits, parental medical administrations, and a number of other acts are not exempt by this definition.  I know of at least one inmate serving a life sentence for an innocent actions such as this.  A life sentence with no need to question whether this contact was sexually motivated.

It is also well known that by and large, for prosecutors the justice system is a numbers game.  Elections, promotions, and appointments are based on racking up high numbers of conditions.  There is really no praise or incentive for declining to prosecute in the interests of justice.  I'm sure there are prosecutors, and defense lawyers who are guided by ethical standards, but politics often takes a greater role in the system.

Plea bargains, which were intended to reduce the burdens placed on the horrendously overstretched court system, are seen by some as a tool that lets guilty people off with lighter punishment than they deserve.  In reality however, they are being used as a tool of manipulation by the prosecution.  Multiple charges are often stacked, creating a terrifying prospect to defendants to take a plea.  In my situation I was looking at 100 - 300 years if I'd been found guilty on all charges, for possessing pictures that I had downloaded unseen, many of which had long been deleted.  I'm not defending my acts, but life in prison for this seems kind of extreme.  So I took a plea, not realizing the degree to which I was forfeiting my rights of due process in terms of seeking post conviction relief.  This type of scenario is by far the norm of this yard.  I know of several inmates who claim to be innocent, that took a plea of guilt because the implications of a wrongful conviction were too staggering to comprehend.

The Post article refers to "bringing the hammer down" as a method of intimidation and a showing of brute force.  I, thankfully, was spared the humiliation of SWAT teams busting into my home "guns a-blazin' " but many of my fellow inmates were not.  Most of these "dangerous felons" are rather meek and "nerdy" computer geeks - who might have relied on computer "fantasy" to compensate for an insecurity in human relations.  Yet teams of gun toting law enforcers would burst into their homes and drag them out and cuffs.  I mean, really?  Is this truly necessary or productive in any way to them, the families, or even to taxpayer dollars?  It's a display of might.

We also saw how post 9/11 a whole host of laws were enacted to protect ourselves from the tyranny of terrorism.  Yet again many of these laws could be used to limit our own rights to free speech and are vague and controversial.  Computer monitoring has resulted in a huge spike in convictions of internet-related sex crimes.  Again, not to condone these activities, but is that the intention of these restrictions to privacy?

The notion that "criminality is influenced by politics" is at its most evident in the sensationalism of prosecuting sex crimes.  How often is "tonight's top story" about illegal porn,  allegations of inappropriate behavior, or some kind of sex scandal?  It's a great strategy to rally and stir up the population at large, but the long-term effects on individuals, their families, and society as a whole is both underplayed an overlooked.  Very few of the monstrous and villainous sex offenders with whom I am incarcerated are truly a danger to society at large, and I imagine the same is true in the general population as well, but the prosecutors of this nation are not interested in such triviality.

Comparisons and Contrast

 

I just finished reading a couple books relating to the Arizona Dept of Corrections.  The first was "Wilderness and Razor Wire" by Ken Lamberton.  He was a teacher in Tucson who was arrested for a sex crime that landed him in prison for 12 years.  The second was "Crossing The Yard" by Richard Shelton, who served as a volunteer teaching creative writing workshops in the Arizona prison system for some 30 years.  Ironically, Lamberton was one of his students.  So obviously, I did some reflecting on the similarities and differences to my own situation and also pondered their thoughts and observations.

I'll start with Lamberton.  Obviously, the whole situation is similar to my own.  His crime was also heavily publicized by the media, and he's gone through many similar experiences as an" ex teacher sex offender." Like myself, he has a strong connection to nature, and much of this book is about plants and animals he observed in his Tucson prison yard.  Obviously, we both have a strong desire to write as an "escape" from confinement.

Lamberton also has a similar outlook on prison to my own.  He writes about " easy time" vs " hard time".  Easy time is retreating from emotions and connections as well as ignoring or resisting one's personal responsibility for one's actions.  Hard time is staring it straight in the face and not blaming others, or the state, as many tend to do.  I acknowledge my tendency to do that at times, though I am questioning policies and attitudes of the system, rather than it being the state's fault that I'm here.  Lamberton and Shelton both share my sentiments on the nonexistent notion of correction or rehabilitation.

Lamberton writes: "It is the difference between discipline and punishment: one looks forward and works toward restoration and health, the other looks backward and tears down, dehumanizes, destroys." It's clear to us both which method the ADC subscribes to.

Shelton, as an observer outside of confinement, had this to say: "it made me increasingly aware of how little the department of corrections cared about programs, rehabilitation, or any of the other fine phrases that were still part of their public rhetoric...  I was reminded, if I hadn't learned the lesson earlier at Florence, that  as far as the department of corrections was concerned, volunteers were shit and educational programs, even those bring their own funding and making the prison look good, were of no importance.  The fewer of them the better."

There are also some big differences between Lamberton's situation and my own.  He had an affair with a 14 year old student, in fact they ran away together.  I never acted on my inappropriate attractions, other than to download pictures.  Another difference, very painful to me, is that not only did his wife not turn him into the police (he was identified by an acquaintance in Colorado), she stayed with him and studied law and worked with the lawyers to get him out after eight years.  She ended up getting hired as a paralegal with the firm she was working with.

Incredibly though, after 18 months of being out, the Arizona Court of Appeals reversed the lower court's decision and he had to return to prison for four more years.

Then, there are situational differences that clearly illustrate the direction of the ADC.  Lamberton wrote about the inmate park and a visitor park, both full of plants and the occasional wildlife.  He caught toads with his kids in visitation.  He wrote about sitting under a tree, playing his guitar, and the 75 pound packages of food that were sent to inmates by their families at holiday time.  There is nothing like this in my incarceration.  I was envious of his "posh" situation.

Then later in the book, as time passes, the trees, plants, and flowers get torn up and the "Parks" get shut down.  The Food Care packages are prohibited, and eventually all sex offenders are declared to be a predatory security threat and cannot go "below" medium security yards.

For a short time he was in my complex, but managed, with the help of his wife, to get shipped back to Tucson, an option no longer available to sex offenders.

I think it might even be worse to have those privileges and lose them, though that DOC continues to chip away at the few privileges that remain.  The all day "food visits" were recently limited to 4 hours.  The list of "acceptable" books and magazines are shrinking exponentially and lock downs and strip searches are more numerous and more thorough.

I realize, of course, there's no purpose in comparing my situation to anyone else's.  Each is unique.  Lamberton's wife is certainly not Jess.  That I think my actions were far less directed toward her or anyone is irrelevant.  Did I hurt her any less?  My situation is my own, and it matters little what I believe about it.

I do get some satisfaction in knowing that both Lamberton and Shelton have made similar observations to my own.  Especially as Shelton was not an inmate, it adds a bit more credibility to my own sentiments that he is not merely whining about his own predicament.  Shelton ends his book with some powerful ideas and suggestions toward the prison system as an entity.

" Over the years, I have grown old while the system spins more and more rapidly out of control, an industry that depends for its energy on the processing of living bodies." He dryly quips about how the "product" of the penal system is a rare recyclable product, and that true treatment programs would reduce the recyclable nature of the product, which is not in the interest of the industry.

He notes, and I wholeheartedly concur, that a fraction of the number of inmates could and should be incarcerated - but in a secure mental hospital, as there are those who are criminally insane and dangerous to society.  But that the majority are neither.

Shelton advocates for people to step up and volunteer at local prisons, to see the real story behind the walls and fences.  Though the institution will resist any attempts at transparency, nevertheless, it's promising to read intelligent published literature on this topic; I thought I'd better grab these books before they are banned as well.

I encourage you to read them and other resources that are based on direct observation or objective data as opposed to media sensationalism or fear mongering political agendas.  Someday, that could be you or someone you love.

Appeal To My Readers

 Thank you to all who have taken the time and effort to read my disjointed observations on a variety of topics.  Especially to those who have made comments to the post, or to me directly and indirectly.  Thank you for your words of support and your feedback.

I would love to hear from more of you.  Are there things which might be unclear to you?  Perhaps I am too accustomed to my surroundings and may need to clarify things.  Are there things you'd like me to elaborate on?  Other questions that I haven't addressed yet?

Perhaps you, or someone you know, has had similar or even opposing experience to my own.  Maybe you think I'm a whiny bitch who deserves everything that has happened and more.  Perhaps you might think I'm being a naive  about some things, or maybe you might agree.  I'd like to know what your thoughts are.

If you know of any other sites or resources that might be related to the topics presented, feel free to share them in this forum.  If you have any research that either concurs with or opposes any of my assertions, I like to know about them.  I'm particularly interested to hear about the situations and conditions of convicts, prisons, and sex offenders in states other than Arizona.

If you know of resources that might contribute to my growth, healing, recovery, and spiritual development, emotionally and psychologically, I'm always welcoming of suggestions.  Perhaps other readers might benefit from these as well.

And by all means, pass this blog URL on to others who might have any interest in the topics presented - even if it's just for them to feel better about their own life situations!  Sometimes it's helpful to have a solid, real - life example of "it could be worse".  I feel this way when I see the conditions of those in the maximum security yard where I work.

If any of my essays are appropriate to any publications, or to other web sites, I give my express permission to share them, though I'd love to know about it.

While my intentions of this blog are to promote awareness and to perhaps help others, it is also very much a form of therapy for myself, and I get little true feedback, counting, criticism, or support in this environment and I would welcome any from you all.

Thank you again and I continue to send thoughts of loving kindness (metta), compassion, peace,  and joy to all of you.

Sincerely,

The Caged Bird

(Note from the poster:  The Caged Bird asked me to include a link to this website.  He is in touch with the organization and wanted to connect his blog to their website.   Click on the logo above or here: http://compassionworksforall.org/)

A Father's Lament

I talked to the kids on the phone this morning. On my second call, I had to cut off my time with my son as I had my monthly Buddhist Service. I could not focus on the service, or discussion, as I could only think of my kids. They had been telling me about putting up trees at their mom's and their aunt's (my sister). These were always my activities with them.

My kids were always a center of my life, I could never understand how any parent could "abandon" their kids either physically or mentally. I know I was never the perfect dad, but I tried to be as close as I could. A friend sent me a few more pictures of my "new" son, who I've never met, including one of Jess holding him up and smiling warmly and lovingly into his eyes. I guess there's also a video of him walking. He does not even know I exist, and I feel he's been robbed from me. Even worse, now I'm one of those parents who abandoned their kids. But it wasn't my choice.

So I thought I'd copy a journal entry I wrote several months ago while thinking of my kids. Here it is:

10/26 I've been thinking of my kids even more than usual recently. One reason for this is the approach of Halloween. That was always one of my favorite times with them. I took them most years, whether it was my turn or not. We would usually trick or treat in our neighborhood.

I also usually took them to the All Souls Day/Day of the Dead procession, a huge event in our town that is a cross between the Mexican Day of the Dead and Mardi Gras. It was a big deal with my gang of friends and we constructed elaborate floats on several occasions. I involved the kids in that process as much as possible.

This led me to think of other traditions and activities that I may never have with them again. I used to be "the monster" when we went to any park, chasing them throughout the jungle gyms, up ladders, over bridges, and down slides. They never tired of that game, but when I get out they will be long past it. The same is true for bedtime stories, which we still were doing "when it all fell apart". Of course they were doing much more of the reading then.

Some traditions will still be alive, I hope. "Question time" and "story cubes" were, and I hope will be, a part of every meal. It was a way to create bonding and sharing at the dinner table. I was so very proud when one thanksgiving, and the huge table that included several strangers to the kids, my son stood up and yelled out "question time!"

Another tradition that might live on is "pizza and a movie night" if, that is, I'm allowed to have my own children overnight. Perhaps the movies that we watch will "grow" along with the kids, but I did enjoy watching classic cartoons, and Pixar films, and great kids' movies with them. When I started allowing them to choose, the quality wasn't always of the same caliber!

(Later that day) WOW!! I just got a letter from my daughter. She was telling me how much she missed many of those exact things I just wrote about! She also reminded me about "monster in the theater," where I chased the kids around the aisles after the movie was over and the cinema cleared out.

This led to the unpleasant thoughts about how this punishment of my crime also punishes the kids and has little to do with any recovery or strengthening of communities. It is only destructive. There are so many other productive, constructive, effective and efficient ways to dispense justice, but that is for another day.

Imagine

In pondering and writing about all of the events and circumstances in my situation, I think about the callous and faceless nature of the court system as a whole.

I had very little opportunity to present myself to the courts as the human being that I am. The vast bulk of the process is lawyers dickering with each other, filing motions, affidavits, and petitions. Several of my court appearances were to read a charge and set up another date. Other times, for one side or the other, were to postpone or extend, to set up another date, and so on.

So I wonder, why could there not be a process where a judge just talks with the defendant. The system would probably cry out the courts are already so overburdened and backed up that there is neither the time nor resources for such an endeavor. Yet it seems to me that it would be less cumbersome and time consuming than all of the motioning, posturing, and dickering that goes on now.

I had to undergo extensive psychosexual evaluations, but ultimately they seemed to mean little to nothing to the judge or prosecutor. So why the charade of this procedure? Perhaps as a true component of the judicial system there could be a risk analysis and a treatment proposal that actually carry some weight.

The system itself perpetuates this lack of "cutting to the chase". One should never speak without a lawyer. In most cases the lawyers do the majority of the talking. A lawyer is necessary to navigate the maze and hoops of the system.

But why must it be this way? Ostensibly it is to protect the rights of the accused, but that seems not to be the case. That the courts are "out to get you" should not be the reality, though in my experience and also from listening to and reading about many others, this seems to be so.

I realize that I'm seeing and hearing about only those who have been found guilty and are incarcerated, but the scenarios are both commonplace an astounding. I acknowledge that I can't believe everyone's story, but the truth is that we are already in prison so there's little incentive to lie. Most all that I talk to will readily admit they are guilty, but there are often tales of outlandish assertions on exaggerations that add to the consequences. And relevant circumstances that aid and reduce the offense are dismissed as immaterial. Anything damaging is fact, and anything exonerating is suspicious or irrelevant.

This is certainly true in my case, and I hear similar tales again and again. There is no attempt at real meaningful dialogue in the justice system. That does not have to be the way.

This is also a problem with our whole political system as well. Everyone has an agenda, which is more important than the good of the whole. Compromise, communication, and rationality play little role in the decision-making process.

Of course how can I expect the court system to communicate or to understand me when even my fiancé was unwilling to do so. While the courts might have little or no inclination to understand the big picture, one would expect or hope that their loved ones would. One would be wrong in that supposition.

Is this an anomaly due to individual circumstances? Or is society as a whole buying into a program of condemn first ask questions later. I notice that the media will always sensationalize the negative and condemn well before any attempt is made to see the whole picture, and if that ever happens, it's already too late.

But it's not too late to shift towards empathy, compassion, and understanding. I'm not suggesting to give felons bouquets of roses, but at least give them a legitimate voice in the process and to propose a course of action and a dialogue that has a productive and constructive outcome. You may say I'm a dreamer, but I'm not the only one! Imagine that!

Injustice In Action

I would like to share some more of my experiences with Arizona's injustice system, again with the hope that it might help anyone who might become entangled in the nets of judicial bureaucracy.

When I first was able to view the police reports of my crime (after it had already been leaked to the media) I was completely flabbergasted at the assertion of some 60,000 images of a "dubious" nature. "Known or suspected images of illegal pornography" was the specific wording. A computer program had scanned the computer and external drive and this was the result of that scan.

I realized that there were duplicates of most of the images, as the search included all files that had been deleted for many months. I also realize that it included the vast majority of which were (while I'm not proud of them) of fully clothed or bathing suit images and not illegal.

I repeatedly and vociferously conveyed this to my attorney. She dismissed the objections as unimportant. When the judgment was made at the sentencing hearing, this factor led to an additional 2 1/2 years of prison time. My lawyer made a feeble statement about not relying on a computer to verify this claim.

Upon my initial appeal my new public defender also failed to raise this objection of mine and eventually my appeal for relief was denied for "no issues of factual objections".

Then, I petitioned the court of appeals, representing myself, and I was able to state my concerns and pointed out that this aggravating factor was not "proven beyond a reasonable doubt."

I just received notification that my appeal was denied. Though I really knew it was a long shot, I've come to have little faith or expectation in the justice system, but it still caused some angst, removing yet another layer of hope to an earlier release.

But what really bothers me was the statement as to the reason for my denial: " (the defendant) did not raise this argument below, instead implicitly acknowledging he had possessed tens of thousands of images. Accordingly, we do not address this argument further."

So my lawyers refusal to voice my concerns in court implied tacit agreement. This point cannot be raised on appeal as it was not raised in the trial court, though I repeatedly brought it to my attorney's attention. Even before the hearing she basically had written me off, and was suggesting that I appeal the decision. After the hearing, she again suggested I appeal and that this could be a valid point of appeal. One would think that, as an experienced attorney, she would know that in appealing a hearing, one is limited to the points that had been raised. I suspect that she didn't want to deal with and actually checking my assertion and wanted my case over and done with.

Of course, in retrospect, I should have been more proactive. I naively assumed that the attorney knew what she was doing. I must also point out that I was taken to the courthouse, in cuffs, after being awakened at 3:30 AM. I was not at my mental best, barely able to choke through the statement I had prepared. The prosecutors words and accusations barely penetrated my mental haze.

Would this issue have changed the outcome? I don't know, but I do know that my judge and prosecutor both have reputations of being severe. My public defender told me straight out that with 90% of the other judges I would have had a lighter sentence. Justice is determined by a roll of the dice it seems.

I'd also have the opportunity to raise this issue throughout the appeals process. While I have little hope remaining, I plan to continue to fight and take it to the next level. At least it's something to do.