Reason Magazine - Staff

Sports and Election 2008

rbalko@reason.com (Radley Balko) — Sun, 11 May 2008 20:58:00 EDT

USA Today asked the three remaining major-party candidates how they feel about Title IX and about performance enhancing drugs.

Refreshingly, all three said neither steroids nor gender participation are any of the government's business, and that, being private entities, sports organizations should be free to set their own rules free of meddling from the federal government or grandstanding congressmen.

Just kidding. All three favor using the federal government to bend pro and amateur sports to their liking.

DWI for Walking a Bicycle

rbalko@reason.com (Radley Balko) — Fri, 09 May 2008 16:23:00 EDT

Jeff Brown of Columbus, Ohio was arrested for DWI, spent four days in jail, and had his license suspended for six months when he refused to take a breath test after an officer confronted him on suspicion of operating a vehicle while intoxicated. Brown was walking his bicycle across his own front yard. Brown has since made a YouTube video detailing his ordeal.

Via Lawrence Taylor, who notes that in 2005, a woman in Florida was arrested for DWI for operating her own wheelchair while intoxicated. That case, fortunately, was thrown out.

MORE: The appellate court decision describes the facts of the case this way:

The record contains scant details of the underlying facts of this case, but it appears appellant was riding a bicycle on a sidewalk on December 18, 2004, when he was detained by a police officer.

Make of that what you will.

Joe Alston, Top Fibby, Badminton Champ: RIP

rbalko@reason.com (Radley Balko) — Fri, 09 May 2008 09:15:00 EDT

One of the more interesting obituaries I've read in a while:

Joe Alston, an FBI agent who investigated Patty Hearst's kidnapping and a champion athlete who was the only badminton player ever to make the cover of Sports Illustrated, has died. He was 81.
[...]
He had just won his second U.S. Open singles title when he appeared on the March 7, 1955, cover of the sports magazine. At the time, he had been with the FBI for four years.
“That picture really changed my life,” Alston told Sports Illustrated in 1999.
“The bosses said, 'Maybe this isn't the time to have you doing undercover surveillance.' As a result, I continued working investigations – kidnappings, extortions, bank robberies, all the good stuff – the rest of my 30 years in the bureau.”
[...]
He was the FBI's major case coordinator in Los Angeles from 1967 through 1980. His family said he was involved with investigating the 1974 kidnapping of Hearst, the newspaper heiress who was seized by the radical Symbionese Liberation Army, and in the still-open investigation of airplane hijacker D.B. Cooper.
As a badminton player, Alston represented the U.S. eight times in the world men's team championships. He also was the only U.S. player to win the men's doubles title in the prestigious All England Open Badminton Championships. He and Johnny Heah of Malaysia won in 1957.
His son also was an FBI agent and a leading U.S. badminton player in the 1980s.

Back to Atlanta

rbalko@reason.com (Radley Balko) — Fri, 09 May 2008 08:57:00 EDT

Arthur Tesler is the only officer involved in the Atlanta drug raid that killed 92-year-old Kathryn Johnston to fight the charges against him. The testimony to so far come out of his trial really only confirms what we knew about the narcotics division at Atlanta PD from the federal investigation into Johnston's death, but it's still pretty striking stuff:

A former Atlanta police officer testified Thursday that narcotics officers routinely lied under oath when seeking search warrants, a practice that led to police killing a 92-year-old woman.
Former Detective Gregg Junnier told a Fulton County jury that detectives would tell judges that they had verified their informants had bought cocaine from dealers by searching them for drugs before the buy took place.
"I have never seen anyone searched before they go into the house, I've never seen that done, even though officers always swear to it," Junnier said. "It's done that way in 90 percent of the warrants that are written."
But it wasn't just lies to get the warrant to search Kathryn Johnston's home that made Junnier uneasy, he said. He had an inkling something was wrong when he and Officer Jason R. Smith were leading the narcotics team to the front door. He said the northwest Atlanta house differed from the informant's description.
"I said, 'Man, this doesn't look right,' and he said, 'I know,' " Junnier testified. " 'I said what do you want to do.' He said, 'Hit it.'"
A minute later, Johnston was lying on her floor, dying.
[...]
He said the chance to seize a kilo (2.2 pounds) of cocaine also drove the officers, who normally made arrests for much smaller amounts.
In the raid, police fired 39 shots. Junnier was shot in the face, chest and leg. Two other officers were also wounded. Investigators determined Johnston had fired one round from a revolver; the officers were shot in their own crossfire.
Junnier described entering Johnston's house: "She was still alive. She was gasping for air. I heard ... the order to cuff her."
Later that day, he said, the cover-up began.

It would be pretty näive to think these kinds of shortcuts only happen in Atlanta. Prior reason coverage of the Johnston case here.

Tracy Ingle's Website

rbalko@reason.com (Radley Balko) — Thu, 08 May 2008 13:14:00 EDT

The sister of botched drug raid victim Tracy Ingle has set up a website with information about his case, including how to donate to his legal defense.

Summary of Ingle's story here.

I'll Need to See Your Permit

rbalko@reason.com (Radley Balko) — Wed, 07 May 2008 12:54:00 EDT

I don't know which is worse, that the city of Cleveland requires a "music permit" and a "pool table permit," or that failing to obtain one is a criminal offense.

Tracy Ingle: Another Drug War Outrage

rbalko@reason.com (Radley Balko) — Wed, 07 May 2008 10:45:00 EDT

About a month ago I got a call from a reporter for the Arkansas Times inquiring about my research into paramilitary drug raids. He'd been reporting on a raid in North Little Rock involving a 40-year-old man named Tracy Ingle. When he told me the story over the phone, I was floored, even given all the abuses and mistakes I've reported and read about over the last few years. What makes the case especially egregious is not that the police may have gotten the wrong home, that they shot a man, or that they were covering it up or going silent. We've seen all that before. What's mind-blowing about this one is that they've continued abusing the poor guy, even after it should have been clear for some time now that they made a mistake.

From the outset, it should be noted that Tracy Ingle has had some trouble with the law in the past, though nothing violent, and nothing drug-related. He has had a couple of DWI's, and a citation for failing to appear in court. He apparently also agreed to do some repair work on a friend's car that later turned out to be stolen.

That said, what's happened to him over the last few months is pretty outrageous.

Here's the Arkansas Times piece, which I'd encourage you to read in full. And here's a follow-up interview with North Little Rock Police Chief Danny Bradley about SWAT tactics.

I've since spoken again to the reporter and to Tracy Ingle's sister, Tiffney Forrester, who herself is a former sheriff's deputy. I've also had a chance to review the warrants and return sheets (pdf).

The North Little Rock Police Department wouldn't discuss the case with me.

Here's a quick rundown:

• On January 7, 2008 a paramilitary police unit in North Little Rock, Arkansas conducted a drug raid on Tracy Ingle's home. Ingle says he had fallen asleep for several hours, and was asleep when the raid happened. He awoke when the police took a battering ram to his door. Another team of officers approached form the outside of the house, and shattered the window to his bedroom.

• When he awoke, Ingle says he thought his home was being invaded by armed robbers. He reached for a broken gun, a pretty clear indication that he had no intention of killing anyone, but rather was trying to scare away the intruders. When he grabbed the gun, an officer inside the house fired his weapon. The bullet hit Ingle just above the knee, shattered his thigh bone, and nearly severed his lower leg. When the outside officers heard the shot, they opened up on Ingle, hitting him four more times. According to Ingle's sister, one bullet still rests just above Ingle's heart, and can't be removed.

• Ingle was taken to the hospital, and spent a week-and-a-half in intensive care. He was then removed from intensive care—still in his hospital pajamas—and taken to the North Little Rock police department, where he was questioned for five hours. He was not told he was suspected of a crime, and his family wasn't allowed to speak with him. After the interrogation, he was arrested and transferred to the county jail.

• Ingle spent the next four days in jail. He says he was never given his pain medication or his antibiotics. Though hospital nurses told him to change his bandages and clean his wounds every 4-6 hours, Ingle told the Arkansas Times that jail officials changed them only twice in four days. Ingle's wounds became infected during the time he was in jail.

• Police found no illegal drugs in Ingle's home. They did find a scale, which Ingle's sister tells me was an extra she was given when she worked at a medical testing facility. She used it in her jewelry-making hobby. They also found a bunch of small plastic bags. Again, Ingle's sister says these were part of her business. "I was leaving the country for a while, and I stored a lot of my stuff at his house," she told me. "The scale and bags were mine, and are both common things to have for anyone who makes jewelry." Police also found the broken gun and a broken police scanner.

• From those items, the police charged Ingle with running a drug enterprise. They also charged him with assault, for pointing his broken gun at the police officers who had just barged into his home. The judge set Ingle's bail at $250,000, explaining that it had to be set high because Ingle had engaged in a shootout with police—never mind that Ingle didn't fire a shot. Ingle was able to sell his car to pay a bail bondsman. But with no car, his injuries render him basically immobile. He had to walk two miles on crutches and an infected leg to his hearing last week.

• The police obtained a no-knock warrant for Ingle's home about three weeks prior to the raid. The warrant itself (pdf) reads like boilerplate, with no specific references to Ingle (other than his address), or why he specifically posed a risk to police safety, or of disposing of drugs before coming to answer the door. It mentions no controlled buys. It doesn't even mention an informant. In fact, someone scratched out "crack cocaine" and hand-wrote in "methamphetamine" on the type-written warrant, suggesting a cut, plug, and paste job. The Supreme Court has ruled that police must show case-specific evidence of exigent circumstances in order to be issued a no-knock warrant. The mere fact that it's a drug case isn't enough. The warrant for Ingle's home contains no such specific information.

Many times, information specific to the investigation is contained in the affidavit the investigating officer files for the search warrant, not in the warrant itself. Forrester says she has called the North Little Rock Police Department more than 20 times in an effort to obtain a copy of the affidavits. She says they at first refused to return her phone calls. When she was finally able to speak with a lieutenant, he became angry when she told him she had contacted the media. She then says he told her to "dream on" when she asked for copies of the affidavits.

• According to Forrester, Ingle's neighbor had a direct line of sight into the bedroom, and saw the entire raid. His account initially matched Ingle's. But that changed. "We have a witness, a next door neighbor that saw the entire incident," Forrester told me. "He came forward on his own to give a statement to the family. Police never questioned him until a month or so after the shooting, at my insistence. They kept this neighbor in his home, and questioned him for at least four hours, refusing to let the man's wife come home, of for other people to see him. When the police finished intimidating the man, they told him specifically that 'he did not see what he thought he saw.' The neighbor is now afraid to talk to the media." I have not yet been able to speak with the neighbor.

• Ingle's family was able to put up $1,000 to retain an attorney, but can't afford the extra $6,000 the attorney has asked to represent Ingle. Ingle is therefore still looking for representation. He has no health insurance, and no money to pay for medication, or to continue treatment of his injuries.

• Last week, after the Arkansas Times article appeared, the judge in the case issued a gag order, preventing Ingle and any future attorney he may have from talking to the media about what happened to him. This is puzzling. Before today there had been exactly two articles about this case—not exactly a media circus. It's hard to understand why a gag order was necessary. It's only real purpose is to prevent more people from learning about what's increasingly looking like a railroading. And it's only effect is to lend more support to the possibility that it is, in fact, a cover-up and railroading.

As noted, the police aren't talking. And the prosecutor is now bound by the gag order. Perhaps there's some piece of information damning to Ingle I'm not yet aware of—though it's hard to imagine what that might be.

Barring that, what's happening to Tracy Ingle is pretty outrageous.

UPDATE: The Arkansas Times reports that the gag order request in Ingle's case was withdrawn late yesterday. I don't know that this will make the police or prosecutors any more likely to talk about the case, but if I have time this afternoon, I'll try again to give them a call.

UPDATE II: Several people asked in the comments about donating to Ingle's legal defense. You can now do so directly via PayPal at: http://www.justicefortracy.com.

Bush, Lies, and Retarded Monkeys

rbalko@reason.com (Radley Balko) — Tue, 06 May 2008 12:17:00 EDT

Last fall I wrote about Arizona anti-war activist Dan Frazier's tacky "Bush Lied/They Died" t-shirts, and about even tackier attempts by Congress and several state legislatures to ban them. The front of the shirts say "Bush Lied." The backs of the shirts say, "They Died," and feature the names of some 3,000 U.S. troops killed in Iraq.

Now comes a lawsuit (pdf) from the family of one of the late soldiers whose name appears on the shirt. The family's attorneys are seeking to make the suit a class action on behalf of the families of every solider listed on the shirt. One can sympathize with the family and still believe that (a) their suit is ridiculous, and (b) it looks as if they've hired a third-grader to represent them. For example, after arguing that Frazier's enterprise isn't protected by the First Amendment, and that even it is, Frazier should be forced to share his profits with the soldiers' families, the suit then states:

Most respectfully, this is a concept that even a mentally-challenged monkey could grasp, but, apparently, defendants cannot—or, more likely, refuse--to do so, for as defendant, Fraser [sic], stated recently to the Associated Press, he is “not worried” about the outcome of this litigation.

"Most respectfully?" Also, the attorney is asking for $40 billion in damages.

(Hat tip: Howard Wasserman)

Galt's Gulch & Trust

rbalko@reason.com (Radley Balko) — Tue, 06 May 2008 09:12:00 EDT

NPR reports:

John Allison, CEO of banking giant BB&T, calls Ayn Rand's novel Atlas Shrugged "the best defense of capitalism ever written." He says that Rand changed his life, and he's working to ensure that the deceased author isn't left out of the nation's college curricula.
Since 2005, the BB&T Charitable Foundation has given 25 colleges and universities several million dollars to start programs devoted to the study of Rand's books and economic philosophy. In January, the company announced it was donating $1 million to Marshall University in West Virginia.
The money would establish a course dedicated to Rand's Atlas Shrugged and Adam Smith's The Wealth of Nations, and help create the BB&T Center for the Advancement of American Capitalism on campus.

I'm not sure I see the problem, here. Hell, my alma mater had classes on pornography, the Beatles, and the music of Frank Zappa (note: I consider this a good thing). It would be one thing if BB&T were establishing an entire econ department staffed only with Objectivists. But an elective class on the virtues of capitalism that exposes students to Rand's ideas doesn't seem all that nefarious. Of course, some people disagree:

Rick Wilson, a sociology instructor at Marshall and head of the West Virginia Economic Justice Project, says that Rand's philosophy, objectivism, is based on the view that selfishness is the only moral value.
"[Objectivism] goes against the collective wisdom of the human race, I think, pretty much everywhere," says Wilson. "I think it's a curious interpretation of philanthropy to use corporate money to promote, really, an extreme philosophy."

I'm not sure when it became accepted logic that corporate philanthropies should only fund ideas and causes that are hostile to free markets. But that certainly seems to be the prevailing sentiment in the philanthropy world. And Rand's weaknesses aside, I'd say you could make a pretty good case that capitalism, the economic system that accepts and harnesses self-interest, has served humanity pretty darned well.

Jeff Taylor blogged about a similar Allison gift to UNC-Charlotte last March, and wrote about BB&T's lead-by-example capitalism in 2006.

Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?

rbalko@reason.com (Radley Balko) — Mon, 05 May 2008 12:28:00 EDT

First, have a look at this video, from last night's episode of 60 Minutes:

Brady v. Maryland was the Supreme Court case that made it illegal for prosecutors to withhold exculpatory evidence from defense attorneys. The problem is that there's rarely if ever any punishment for breaking the rule, even when it has led to wrongful convictions and imprisonment.

Dallas County District Attorney Craig Watkins, featured in the above video, is now publicly advocating that prosecutors who knowingly violate the rule (that is, who knowingly break the law) should face criminal charges, not just professional sanctions (which also rarely happen).

"Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."
Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.
Such ideas could not be more at odds with the win-at-all-costs philosophy that was the hallmark of legendarily hard-line Dallas County District Attorney Henry Wade and, to a lesser extent, of subsequent administrations.
It is rare for a prosecutor to advocate strict penalties for misconduct – even when it's intentional, said Mr. Gershman, a former New York prosecutor. "I couldn't give you five cases in the last 40 years of criminal charges against prosecutors," he said.

The Duke lacrosse case was great in that it brought national attention to the possibilty of wrongful prosecutions and prosecutorial misconduct. But it may have also fostered the misconception that prosecutors like Mike Nifong are routinely punished when they make the same mistakes he made. In truth, it almost never happens. Still, it's fun to watch law-and-order, "the law is the law" prosecutors backpedal when asked why they themselves shouldn't face charges when they violate the law.

Watkins, by the way, is a rock star. Read my interview with him here.

Giving Them the Rope to Hang Themselves

rbalko@reason.com (Radley Balko) — Mon, 05 May 2008 10:32:00 EDT

Cato's Juan Carlos Hidalgo explains a possible nefarious motive behind Raoul Castro's recent reforms in Cuba.

(Update: Link fixed.)

Updates in Mississippi

rbalko@reason.com (Radley Balko) — Mon, 05 May 2008 10:17:00 EDT

A few new items on the Dr. Steven Hayne debacle in Mississippi.

• The Hattiesburg American—Mississippi's second-largest newspaper—asks DAs around south-central Mississippi if they're still using Dr. Steven Hayne to perform autopsies, in spite of the allegations against him to come out over the past several months. Not surprisingly, all of them said they have no problem with Hayne, and plan to keep using him. At this point, I think you could make a pretty good case that continuing to use Hayne amounts to a breach of ethics.

The paper's editorial board was concerned enough about the responses that they fired off a separate editorial denouncing the prosecutors.

This strikes as three ostriches putting their heads in the sand. How can these DA's be at all confident in Hayne's work given the information that has come out about the pathologist?
The DA's have been asked by the Innocence Project to turn over any documents pertaining to Hayne, including official reports on autopsies.
We hope they are complying. They must, if they believe in justice.
Meanwhile, the Legislature has funded $500,000 this year for a state medical examiner. The state has been without one since 1994 and if more of Hayne's work is found to be faulty, the state will have no one but itself to blame.

Again, it's not surprising. If any of these prosecutors were to admit to having reservations about Hayne, they'd have to admit his testimony may have tainted some of their convictions. Additionally, Hattiesburg is in Forest County, Mississippi. That's the home of Dr. Michael West, who was also once coroner of Forest County. The good ol' boy network runs thick in what locals call the "Pine Belt." One of the DAs interviewed for the article, Jon Mark Weathers, used Hayne in at least one civil before he became a prosecutor.

• Another case has surfaced in which Hayne issued a questionable autopsy report. A woman was jailed for more than a year and lost custody of her kids after Hayne determined her infant daughter died of alcohol poisoning. Hayne based that diagnosis on a toxicology report showing the child died with an astonishing blood-alcohol level of 0.4.

Problem is, a review of Hayne's work by Dr. Leroy Riddick of Alabama determined that there were no other signs of alcohol poisoning, and that Hayne had every reason to question the results from the lab. Subsequent tests showed much, much lower blood-alcohol levels, as low as .02. Riddick says the child died of interstitial pneumonia and myocarditis. The mother was to be charged in the death of her son. I'm told that the charges will now likely be dropped.

• Finally, there's more detail on an odd case of swapped bodies in Clarksdale, Mississippi. In that case, a mother who'd had lingering suspicions about the body county officials told her was her daughter's finally succeeded in having the body exhumed and DNA tested. Testing showed the body was not her daughter, and in fact may have been of a different sex. Hayne performed the autopsy, which also had the daughter's height off by half a foot. To be fair, while something clearly went very worng with Mississippi's autopsy system, here, it isn't yet clear if the mistake was Hayne's. It's at least possible that the county coroner mixed up the bodies before delivering them to Hayne.

Drug Raid/Self-Defense Case Brewing in Columbus, Ohio

rbalko@reason.com (Radley Balko) — Sun, 04 May 2008 11:45:00 EDT

Last Thursday night, police in Columbus, Ohio raided what they thought was a crack house. Though initial reports say some illicit drugs were found, the police thus far haven't been forthcoming about what type or how much. It's starting to look like the place was instead a gambling house.

When the police busted in, two men—who now say they thought they were being robbed—fired at the door. Two police officers were wounded. Both are likely to survive. The two men are being charged with attempted murder. The police say they announced twice before battering down the door, but at least one witness not in the house at the time says he only heard an order from one officer for "knockers" to break out the windows.

One of the two men who fired at the officers is a former Ohio State University football player named Derrick Foster. Foster says he was playing dice at the house when he heard a loud bang at the door, then heard someone say the place was being robbed. That's when he fired his gun at the men breaking down the door.

Foster hardly fits the profile of a crazed cop killer. He has no criminal record. He isn't suspected of drug activity. He has a legal concealed carry permit for the gun he used in the raid. He works a $60,000/year job as a code inspector for the city of Columbus. His last performance review described him as "an asset to the Near East Side." The other suspect's record is quite a bit more spotty. Still, if Foster genuinely thought the place was about to be robbed—and I think it's more than reasonable to believe him when he says that he did—it's reasonable that the other man would too, criminal record or no.

One again we have a someone facing serious charges for shooting at police during a volatile, confrontational forced entry raid to serve a drug warrant. Again we have injured cops, and again we have a guy who otherwise would have no motivation to want to harm a police officer. But instead of questioning if it's a wise policy to put an ordinary citizen in the perilous position of having to determine in the heat of the moment if the men breaking in on him are cops or criminal intruders, the state has again decided to prosecute the citizen—for making the kind of error in judgment it rarely prosecutes police for making under similar circumstances. And the raids will undoubtedly continue.

Oliver Diaz, Jr.

rbalko@reason.com (Radley Balko) — Sun, 04 May 2008 08:50:00 EDT

In Mississippi, state supreme court justices are elected, not appointed. They serve eight-year terms, but can serve multiple terms if they're reelected. Yesterday Associate Justice Oliver Diaz, Jr. announced his plans to run for reelection.

Diaz may face a tough campaign, due in part to the fact that he's one of the more liberal justices on the court. He's also the only justice on the court who seems to give a damn about the sham that is Mississippi's criminal justice system. Diaz was instrumental in building a coalition to throw out Dr. Steven Hayne's absurd two-hands-on-the-gun testimony in the Tyler Edmonds case. My sources in Mississippi tell me the court initially was planning to uphold Hayne's testimony and Edmonds' conviction. Diaz not only succeeded in turning that around for a 8-1 vote for a new trial, he wrote a blistering concurring opinion stating that Dr. Hayne should never testify in Mississippi's courts again (disclosure: he cited my reason article on the Cory Maye case in that opinion). Unfortunately, Diaz wasn't able to convince a majority of his colleagues of his opinion of Dr. Hayne, and so Hayne continues to do the bulk of the state's autopsies.

The other reason Diaz may face an uphill battle for reelection is because several years ago, he was indicted by the Bush Justice Department on public corruption charges. Diaz, a former Republican now backed by Democrats, maintained his innocence throughout the ordeal, refused to plea or resign his seat on the court, and was eventually acquitted on all charges. The Bush Justice Department then indicted him again. And he was acquitted again. His case is now being investigated by Congress to see if it was one of a series of overtly political and questionably meritorious prosecutions of Democratic public officials led by Bush-appointed U.S. attorneys (other prosecutions under investigation include those against former Alabama Gov. Don Siegelman and Pennsylvania medical examiner Cyril Wecht).

One other thing: The federal charges against Diaz stemmed from his relationship with Paul Minor, a plaintiff's attorney in Mississippi who got rich off the tobacco settlement. As Harper's Scott Horton points out, the case against Diaz, Minor, and others was part of a GOP backlash in Mississippi against the rise and enormous influence of trial lawyers in that state. But interestingly, while Diaz is often painted as a friend of the plaintiff's bar, it's worth noting that Dr. Hayne is also a favorite of trial lawyers in Mississippi. Part of Hayne's success stems from the fact that he has managed to win over both the state's prosecutors and the state's trial lawyers (and the county coroners, who often go out of their way to please both). Talk to any medical malpractice defense attorney in Mississippi, for example, and they'll rant about Hayne's absurd testimony in various tort cases for a good ten minutes (I'll have more on this next week).

Diaz's blistering opinion singling out Hayne in the Edmonds case, then, was actually a blow to the state's trial lawyers—the very group for whom the feds and the state's GOP accuse of Diaz of being a shill. His continued presence on the court is important to keep the pressure on the state to do something about Hayne.

It would be unfortunate if South Mississippi's voters were to take Diaz off the bench due to what looks like an overtly political federal prosecution. Right now, at least on criminal justice issues, he's the only justice on the Mississippi Supreme Court who seems to even realize Mississippi has a problem.

Another Isolated Incident

rbalko@reason.com (Radley Balko) — Sat, 03 May 2008 09:47:00 EDT

As part of a massive operation targeting hydroponic marijuana growers called "Operation D-Day" (noting militaristic about that at all), federal agents in Florida mistakenly raided the home of a Cuban immigrant couple.

"I was frightened for my husband because they threw him on the ground," Llorente's wife said. "I was scared.
Llorente said he was just leaving for work when unmarked cars pulled up, Drug Enforcement Administration agents jumped out, threw him down with guns drawn, handcuffed him, stormed into his home and searched for drugs.
"I asked them why they came to my house, they said a neighbor or somebody called and said I had a hydroponics lab in my house," Llorente said. "Then I asked them if a marijuana plant could grow inside my underwear drawer."
The Llorentes said they don't speak much English – they're immigrants from Cuba. They said one of the reasons they came to the U.S. was to escape oppression from the Cuban police.Isabel Llorente said she never thought this could happen here."Never, because they criticize Cuba so much," she said.
"I've never gone through anything like this."She said what made it especially traumatic was not knowing if the agents were really police or imposters. She said she tried to call 911, but they wouldn't let her.
"What added salt to this injury was after the situation – house is searched, door is broken – they just walked away," the Llorentes' lawyer said. "Like, 'We're the government. We made a mistake.'"

It's worth noting that while police say these tactics are necessary because drug distributors tend to be violent and armed to the teeth, this operation apparently turned up just eight guns from 150 homes.

Compensate Much?

rbalko@reason.com (Radley Balko) — Fri, 02 May 2008 08:32:00 EDT

Via Reddit, the 50 most popular pages on "Conservapedia," the reference wiki for right-wingers.

And Don't Even Ask About Purple Nurples and Wet Willies

rbalko@reason.com (Radley Balko) — Thu, 01 May 2008 11:24:00 EDT

Via Fark comes this quote:

The police spokesman said they are ever vigilant and on the lookout for wedgies here.
“You might get away with that in Lincoln or Omaha,” the spokesman said. “But we’re not going to allow wedgies in North Platte.”

Guilty Before Proven Innocent

rbalko@reason.com (Radley Balko) — Mon, 14 Apr 2008 12:00:00 EDT

Ann Colomb scoops a plastic cup of corn from a white pail in her backyard and pours it onto the sod at her feet. A few dozen scraggly chickens scatter as the corn hits the ground, then gather back into a flock to peck up the kernels.

“Grocery chickens are so expensive,” the 57-year-old Colomb explains. “And they’re pumped up with all those hormones. So we raise and butcher them ourselves.” Inside, a less lucky bird stews with gravy and spices in a pot on Colomb’s stove. As she frequently does, Colomb is entertaining guests. She’ll ladle the chicken and gravy over rice for visiting family members, along with a selection of the peppery, butter-laden sides—a mix of Creole cuisine and soul food.

It’s early July in Church Point, Louisiana, and the summer’s bearing down. In front of the Colombs’ modest, two-bedroom bungalow, a large rattletrap fan blows sluggish swamp air across the porch. An unused freezer, an old toaster oven, and a rickety covered swing sit under the driveway carport. Colomb’s husband, James, sits on a lawn chair and dabs the humidity from his face with a handkerchief.

The Colombs live on a mostly black street in a mostly white section of this mostly segregated town of 4,700 in Acadia Parish—the heart of Cajun country. James Colomb spent the bulk of his career working in an oil field, then was injured. The family’s sole source of income now is his disability check. Ann Colomb—“Miss Ann” to those who know her—is a homemaker.

It was from this unlikely setting, the United States alleged, that Ann Colomb and three of her four sons ran one of the largest crack cocaine operations in Louisiana. Over the course of a decade, prosecutors said, the Colombs bought $15 million in illicit drugs with a street value of more than $70 million. Judging solely from the indictments, the government’s case seemed formidable: a trail of police reports throughout the 1990s accusing the Colomb boys of possessing or selling drugs; a 2001 raid on the Colomb home that turned up 72 grams of crack, a Titan .25-caliber pistol, and a rifle; and more than 30 prison informants who were prepared to testify that they had sold crack to one or more members of the Colomb family. In 2006 a jury in Lafayette, Louisiana, convicted the African-American family on federal drug conspiracy charges. Ann and her sons served almost four months in a federal prison while awaiting their sentences, which would likely have ranged from 10 years to life.

But in the ensuing months, the government’s case unraveled, exposing some unsettling truths about the way jailhouse informants are used in America’s courtrooms. In December 2006, all charges against the family were dismissed. The federal judge who presided over the trial was so upset about what happened in his courtroom that he has since taken the rare step of speaking out about it publicly.

The legal fiasco was partly attributable to familiar themes of racism and overly aggressive prosecution. But the Colomb story is mostly about the war on drugs. It shows how the absurd incentives created by the unaccountable use of shady drug informants by police and prosecutors can quickly make innocent people look very guilty.

The case loomed over the family for more than five years. It wrecked their finances. The Colombs’ son Danny was convicted shortly after learning that his wife Elizabeth was expecting their first child. He spiraled into severe depression while incarcerated. He and Elizabeth say they spent their entire savings on attorney’s fees. Ann Colomb had a serious diabetic attack in prison. She too spent her savings on her defense.

Still, the Colombs’ home on Broadway Street is a happier place now, bustling with visiting neighbors and relatives. Ann forges a path through the doddering chickens and makes her way to the front of the house. She sits down in a lawn chair next to her husband and lifts her 3-year-old granddaughter Mariah into her lap. “It’s good now,” she says as she strokes the little girl’s braids. “I’m finally getting to enjoy my grandbabies.”

Ten Years, Four Incidents, One Conviction
Ann Colomb and three of her four sons were indicted, charged, and convicted on federal drug conspiracy charges. The conspiracy indictment allowed the government to piece together a series of disparate events going back more than a decade, only one of which had ever amounted to a conviction in state court.

The indictment lists four “overt acts” over 10 years that prosecutors say indicate a conspiracy. The cumulative amount of cocaine police said was involved in the four incidents amounts to less than a gram. All four incidents also involved deputies from the Acadia Parish Sheriff’s Department, whom the Colombs accuse of harboring a racially motivated grudge against the family, driven in part by the Colomb boys’ history of dating white women. (The Sheriff’s Department declined to comment for this story.)

The only act listed in the federal indictment that resulted in a conviction at the time came in 1993, when a sheriff’s deputy pulled over a car occupied by Ann Colomb’s son from a previous marriage, Sammie Davis Jr., who was 26 at the time; Ann and James Colomb’s son Edward Colomb, then 20; and two other men. A subsequent search found cocaine and marijuana on the other two men and some residue in the car but none on Davis or Colomb. Sammie and Edward were nevertheless arrested and charged with drug possession. Ann and James Colomb say their attorney told Sammie and Edward that if they fought the charges, they would almost certainly be convicted and sent to prison. The two pleaded no contest to a felony possession charge and were sentenced to probation.

“We didn’t know anything about how all of this worked,” Ann Colomb says. “We’d never been in a court before. I didn’t know the first thing about drugs or the law.” The repercussions of that plea would hang over the family for 15 years.

In the other three incidents federal prosecutors claimed were part of the drug conspiracy, state charges were dropped before getting to trial. In one, an undercover police officer alleged that in December 1999 he met Sammie Davis Jr. under the Colomb home’s carport to purchase cocaine. Years later, at the federal trial, the man who built the carport testified that it had not existed in December 1999. It wouldn’t be built for another year.

An assistant to Acadia Parish Sheriff Wayne Melancon referred inquiries to Jerry Stutes, a federal investigator who worked for the U.S. Attorney’s Office for the Western District of Louisiana in the federal case against the Colombs. (Stutes has also worked for the Acadia Parish Sheriff’s Department.) Stutes declined to comment, referring inquiries to the Public Information Office of the Drug Enforcement Administration’s New Orleans field office. That office referred inquiries to the U.S. Attorney’s Office, which did not respond to multiple requests for an interview.

A Divided Town
In 1981 Ann and James Colomb moved their family to Church Point from nearby Carencro, Louisiana.

The family included Sammie Davis Jr. (named for the Rat Pack crooner), now 40, and the four children the couple had together: Edward, now 34; Danny, 33; Randy, 32; and Jennifer, 27. Because Ann and her first husband didn’t finalize their divorce until years after their separation, the surnames of the children can be confusing: Although only Sammie was the product of Ann’s previous marriage, both he and Danny take the last name Davis, while Edward and Randy take the last name Colomb. Jennifer, now married, takes the last name of her husband, Timothy Price.

Church Point has a history of racial unrest. Even today, black residents say, much of the town is segregated, by custom and practice if not by law. There are two versions of Church Point’s annual Mardi Gras parade, one for whites and one for blacks. (Church Point Mayor Roger Boudreaux insists that “anyone is free to take part in either the white or black parade.”) There are separate white and black Catholic churches, cemeteries, and, for the most part, neighborhoods. Blacks in Church Point say they aren’t permitted at the town’s only swimming pool. Mayor Boudreaux says the only pool in town requires a private membership but couldn’t say if there were any black members.

In 1994 fighting broke out in the stands of a Church Point High School football game when Margeaux Coleman was announced as the school’s first black homecoming queen. Coleman at the time was dating Randy Colomb, Ann’s fourth son. Months later, former Ku Klux Klan leader and white supremacist David Duke took part in the town’s white Mardi Gras parade. Black Church Point residents say town officials invited Duke in direct response to the homecoming scandal. Boudreaux says Duke showed up on his own initiative.

Rodney and Lois Carrier grew up in Church Point but today live in Carencro. The Carriers, both white, say they not only witnessed Church Point’s racial bias over the years; they participated in it.

“It’s still a different time in Church Point,” Lois Carrier says. She’s sitting in front of her kitchen window, where, sitting on the sill, there is a collection of black minstrel figurines. “There are still a lot of people there who don’t accept blacks into their homes,” she says. “Black people and white people live in different parts of town. Walk on different sides of the street. We were like that too. I’m ashamed of it now. But yes, we were racist people.”

All of that changed in 1997, the Carriers say, when their daughter Elizabeth began dating a black man—Ann Colomb’s son, Danny. “We weren’t happy when we heard Elizabeth was dating a black guy,” Rodney says. “We didn’t even want to meet him.”

In fact, it took months for the Carriers to agree to meet Danny. “But once we did, we fell in love with him,” Lois says. Danny obtained his Catholic confirmation, and began attending Bible study at the Carriers’ church. “Danny healed us from our prejudiced way of thinking,” Lois Carrier says. “We could finally see past his color, to his heart.” Rodney Carrier’s eyes well up when he speaks of Danny. “Today, I wouldn’t want anyone but Danny for Elizabeth,” he says.

What Danny and his family went through in court also changed the Carriers’ way of thinking. “We were raised to trust the authorities, to have a certain fear of them,” Lois says. “Now, it’s like we’ve lost a lot of that trust. It’s almost a scary feeling, not to be able to trust the people you’re supposed to. What that family went through.…And watching them do Danny the way they did.…”

Elizabeth Carrier says she regularly did battle with Acadia sheriff’s deputies in the late 1990s. “I was pulled over all the time,” she says. “Whenever I left Ann’s house, they’d ask ‘What are you doing with those Colomb boys?’ or ‘Why are you here?’ ” She says the police also would ask her whom she was dating and, when she told them, ask to search her car for drugs. Eventually, she says, she stopped going to the Colombs and instead asked Danny to visit her house.

Brandy Hanks, 30, is a white woman who dated Danny Davis during and shortly after high school. “I was pulled over just about every time I left Miss Ann’s house,” Hanks says. “They’d ask me, ‘Why are you hanging out with those niggers, those drug dealers?’ Or they’d ask, ‘What’s someone like you doing over at the Colomb house?’ And they’d always ask who I was dating.”

It wasn’t just law enforcement. Hanks says the Ku Klux Klan once left a card on her windshield with threats about interracial dating. “People don’t know what it was like—what we went through,” Ann Colomb says. “You don’t know what it’s like to get a phone call in the middle of the night from somebody, saying if my boy Edward don’t stop dating white girls, I’m going to find him hanging from a tree.”

Colomb wipes a tear into her cheek, then grows defiant. “I told him to leave a branch open for me, because if he killed my boy, I was going to string his white ass up right alongside,” she says. “Then I disconnected our phone.”

By the mid 1990s, the Colomb boys say they were regularly getting pulled over. “We couldn’t drive anywhere in town without getting stopped,” says Edward. “They would pull you over, ask to search your car, make a big deal out of it. Sometimes they’d let you go, sometimes they’d take you in and try to get you to plead to something you didn’t do.”

“I’ve battled depression for 15 years because of all this,” Danny says. “I couldn’t leave my house without getting harassed. I still take Lexapro and blood pressure medication. I don’t think I was paranoid when I thought they were going to kill me. I had police try to run me off the road. Other times, it was petty stuff, just to mess with you. One deputy pulled me over and took my license from me for no reason. He never gave it back.”

In February 1996, local authorities claim to have witnessed Danny Davis participate in a hand-to-hand drug deal in a Church Point parking lot. That evening, a police team clad in camouflage, black ski masks, and full SWAT attire stormed the home of Brandy Hanks’ parents, where Danny and Brandy were staying. The police broke the family’s door open with a battering ram just as Hanks’ partially paralyzed mother approached to open it. She was thrown over the back of her couch, triggering a cardiac event that put her in the hospital. The police roused Danny from sleep at gunpoint, handcuffed him, and marched him outside the house, where newspaper photographers and television crews waited with cameras to capture the fallen football star in shackles.

“They pointed their guns at a two-week-old baby,” Hanks says. “My little sister was so scared she peed herself.”

The police found no drugs, weapons, or anything incriminating in the raid. But Danny Davis says they still attempted to get him to plead to a drug charge for a transaction he says never happened. He refused and was never charged. Davis would be hauled into the police station two more times and pressured by local authorities to plead guilty. He refused both times, and both times the charges were dropped.

It was from these multiple run-ins with local authorities throughout the 1990s that the U.S. Attorney’s Office plucked the four incidents included in the federal conspiracy indictment against the family. These incidents—plus a questionable sting on Ann Colomb’s house in October 2001 that turned up two guns and 72 grams of crack—were the only evidence presented by Assistant U.S. Attorney Brett Grayson that the Colomb family ever sold any illicit drugs. The rest of the testimony came from jailhouse informants accusing the Colombs only of buying cocaine, and lots of it.

“They took a bunch of unrelated police harassments of these people over 10 years, coupled it with a parade of jailhouse snitches, and called it a conspiracy,” says Rodney Baum, Sammie’s lawyer. “It was ridiculous.”

The Raid
On October 22, 2001, a local drug task force claimed to have conducted a “controlled buy” of crack cocaine from Ann Colomb. According to police reports, Stevie Charlot, a local crack addict who once toured the world as drummer for a zydeco band, was recruited to conduct the buy. Although police say Charlot wore a wire to record the transaction, they didn’t preserve any recording of it.

In the years between the alleged buy in 2001 and the Colomb trial in 2006, Charlot changed his story several times. In 2002 he told a private investigator hired by Colomb’s defense lawyers (in a recorded conversation) that the buy never happened at all, that he’d made the entire thing up to appease law enforcement officials. Charlot himself was facing a host of drug charges at the time. But Charlot soon was back to his original story, telling the grand jury that “everyone in Church Point dealt with the Colombs,” though he couldn’t provide authorities with the name of a single Colomb drug customer other than himself.

Minutes after Charlot’s alleged drug buy, the local drug task force raided the Colomb home in full SWAT attire, taking down the unlocked front door with a battering ram. They handcuffed Ann Colomb at gunpoint and rummaged through her belongings. James Colomb had to be taken to the hospital with a panic attack and heart palpitations. In a guest room dresser (not Ann Colomb’s panty drawer, where Charlot allegedly told police the drugs were stored), police found 72 grams of crack cocaine, not in rock form, as Charlot alleged, but in round, uncut “cookies,” along with a handgun. The amount of cocaine was significant; a typical “hit” of two to three rocks weighs only a fraction of a gram.

At the time, Ann and James Colomb’s daughter, Jennifer, was staying in the guest room with her then-boyfriend (now husband) Timothy Price. Price, now 26, immediately said the drugs and gun were his. He still does. “I was dealing crack on the side,” Price says. “It wasn’t anything major. And it was stupid. But that stuff was all mine. After we took Jennifer’s dad to the hospital, I heard that they had taken Miss Ann to jail. I can’t tell you how bad I felt. Miss Ann wouldn’t allow a single joint in that house. And because of me, they were trying to say she was some kind of drug dealer.”

Price drove to the police station to turn himself in. “I told them the dope and the gun was mine,” he says. “My mom is a police officer. The gun was hers.”

But Price says the sheriff’s deputies wanted nothing to do with him. “When I told them it was all mine, they put me in a holding cell for about 15 minutes,” he recalls. “Then they came and told me to go home. They said, ‘The dope’s not yours. Tell Edward to come get his momma.’ After that, I didn’t really know what to do.”

Several months later, Price says, Assistant U.S. Attorney Brett Grayson sent him a letter asking him to come in for questioning. By that time, police had traced the gun found with the cocaine to Price’s mother. Nevertheless, Price says, “Mr. Grayson was surprised when I told him the dope was mine.” Grayson and U.S. Attorney Donald Washington did not respond to multiple requests for an interview.

Later, Price says, Grayson tried to convince him to say his girlfriend, Jennifer, had cajoled him into taking a fall for the drugs. When Grayson threatened Price with 10 to 15 years in prison if he continued to claim the cocaine as his own, Price says he decided to get an attorney. When later called before the grand jury, Price acknowledged the gun was his, but on the advice of his lawyer he pled the Fifth Amendment when asked about the drugs.

Today Price says the drugs definitely were his, just as he did immediately after the raid. “I lost a lot of friends and relatives over all of this,” he says. “People looked at me like I was a ghost.” Price was never charged for the cocaine. Five years later, Ann Colomb would take the hit for the cocaine in federal court. Although Price and Jennifer are now married, the Colomb family still hasn’t completely forgiven him. Normally warm, Ann Colomb cools at the mention of Price’s name. Her sons Edward and Sammie roll their eyes when asked about him. But all seem to hold back their disdain now that he’s family.

“He did what he had to do,” Edward says, referring to Price pleading the Fifth. “The drugs were his and he tried to take credit for them. I guess you can’t blame a guy for not wanting to go to jail.”

“He brought drugs into my home,” Ann says. “We can move on from that. Timmy’s going to have to live with what he done. That’s probably enough punishment for him.”

Although the raid was a local police operation, its results soon attracted the attention of Assistant U.S. Attorney Grayson. With the aid of more than 30 jailhouse informants, he would grow it into a major federal drug conspiracy case. The first federal indictment against the Colombs came down in May 2002. Subsequent indictments continued through 2004. The final indictment sought to seize Ann and James Colomb’s home.

One other charge resulted from the raid. When the police came in, they say they found Sammie Davis in a room where an unloaded shotgun was stored in a closet. A police officer at the scene says Davis immediately admitted to him that the gun belonged to him. Davis denies this, explaining that he didn’t even live in the house at the time. (All of Ann’s sons had moved out by then.) Although there was nothing illegal about the gun itself, Davis was a convicted felon, the result of his no-contest plea in the 1993 incident. He’d later be convicted in a separate trial of being a felon in possession of a firearm. The Colomb family’s lawyers believe that news of Sammie’s conviction spread through the federal prison system, inspiring a second wave of jailhouse informants to come to Grayson with new allegations of selling drugs to the Colomb family.

The Government Builds Its Case
Brett Grayson had made a name for himself by bringing down the drug empire of Houston kingpin John Timothy Cotton between 2000 and 2004. But after Cotton’s conviction, defense attorneys alleged that Grayson had relied on improper jailhouse snitch testimony, testimony they say ranged from inconsistent to provably false. One attorney alleged he had proof that a network of federal prison inmates called the “Hot Boyz” were trading and selling information about pending drug cases, including notes from the prosecutors, photos of the suspects, and even grand jury testimony.

But Grayson had collected boxes and boxes of other evidence against Cotton and his associates, so any problems with the snitch testimony, courts later ruled, were “harmless error”—not enough to overturn any convictions. Still, the testimony coming from the inmates at the federal penitentiary in Beaumont, Texas, known as Beaumont Low, troubled U.S. District Court Judge Tucker Melancon (no relation to the Acadia Parish sheriff), who would develop similar misgivings about the jailhouse witnesses Grayson called to the stand to testify against the Colomb family.

It is rare for a sitting federal judge to agree to an interview about one of his cases. Melancon says he can’t remember ever previously speaking with a journalist about the events in his courtroom. But this case bothered him. “I saw some of these [informants] in previous cases,” Melancon says. “It was like revolving-door inmate testimony. The allegation was that there was in the federal justice system a network of folks who were trying to get relief from long sentences by ginning up information on folks being tried in drug cases. I’d heard about it before. But it all culminated in the Colomb trial.”

By the end of 2002, Grayson had found 16 prison informants to testify against the Colombs. According to post-trial motions, Grayson says the informants came to him voluntarily, without solicitation. During the trial, Grayson argued that the informants were credible witnesses because it wasn’t necessarily in their interest to testify. Snitches, Grayson argued, aren’t treated well in prison.

But Grayson’s witnesses had clearly benefited from their testimony when he’d used them in the past, in the form of reduced sentences. One career criminal, Reginald Milstead, had testified for Grayson in a prior case in addition to the Colomb case and in exchange had his life sentence cut down to 10 years—of which he’d already served seven. Another of Grayson’s witnesses had a life sentence reduced to 15 years, according to defense briefs filed after the Colombs’ conviction.

Between June and September 2004, a second wave of inmates sent Grayson letters asking to testify against the Colombs. It began shortly after Sammie Davis was convicted on the gun charge. Grayson signed up an additional 16 witnesses. “Grayson’s home phone number must have been written all over the walls at Beaumont Low,” quips Steve Shapiro, Edward Colomb’s trial lawyer. “He had that whole prison jumping to tell him whatever he wanted to hear.”

Still bothered by what he’d seen at the Cotton trial, Judge Melancon initially attempted to bar Grayson from calling the additional 16 witnesses against Colomb, citing worries that in the years between the Colomb indictments and the trial bad information might have been “trickling” through the prison system and tainting the “search for the truth” that is supposed to be the objective of a criminal trial. But Grayson filed an interlocutory appeal to the U.S. Court of Appeals for the 5th Circuit, which vacated Melancon’s ruling. Melancon was able to exclude just one of the additional witnesses, leaving Grayson with 31 prison informants ready to testify against the Colombs.

The Shady World of Informants
The use of dubious informants is standard practice in drug policing. Narcotics officers routinely recruit drug addicts, rival dealers, and arrestees already facing their own drug charges to make controlled buys from suspected drug dealers or to point out places where drugs might be found. The system is fraught with problems, including a lack of oversight, little accountability, and twisted incentives that encourage shortcuts and corruption.

But even within the already tawdry informant system, jailhouse informants occupy a particularly pernicious niche. Mandatory minimum sentences contribute to the corruption of jailhouse informant testimony. Under federal law, the only way someone serving a mandatory minimum prison sentence can get out early is to provide information or testimony that is of “substantial assistance” to prosecutors. What constitutes “substantial assistance” is solely up to the judgment of prosecutors. Make the prosecutor happy, and you go home early. Tell him something that may well be true but doesn’t quite go far enough to win him an indictment or conviction, and you risk giving up a golden opportunity to cut your time. Critics say it’s a system that suborns outright lying.

“Some of these people would fry their own mother to get out of a 25-year drug sentence,” says Judge Melancon. “You’re going against human nature. And you’ve put in a system that lets human nature run amok, that lets information be passed from inmate to inmate, for pay or otherwise. This is something we need to take very, very seriously.”

The problem isn’t new. In 1990 jailhouse informant Leslie Vernon White, an admitted perjurer, showed a 60 Minutes reporter how, even while in prison, he was able to obtain confidential information about pending prosecutions, then fabricate an incriminating story about a suspect and offer it up to prosecutors in exchange for a reduction in his sentence. Despite doubts about his credibility dating back to the late 1970s, prosecutors continued to put White on the stand until the late 1980s. After much publicity, he was finally indicted for perjury in 1992. White had given a similar interview to Time in 1988, prompting the Los Angeles district attorney to conduct a review that turned
up more than 100 cases potentially tainted by informant testimony. The defense bar later came up with more than 200 more.

In a 2005 report on 111 death row exonerations between 1973 and 2004, the Northwestern University School of Law’s Center on Wrongful Convictions found that 51 involved false testimony from jailhouse informants looking to cut their time. But such studies are rare, in part because of a lack of information.

“We just don’t know,” says Alexandra Natapoff, a professor at the Loyola School of Law in Los Angeles and a leading expert on the use of informants. “The problem is that we don’t require the government to keep track of how informants are used. Where there have been thorough reviews by journalists—in Chicago, for example—we’ve seen common and persistent abuses. It’s bad enough at the federal level. But we really have no idea at all what goes on at the state and local level.”

Judge Melancon says informant abuse at the federal level was made even worse by amendments to the Federal Rules of Criminal Procedure. Broadly speaking, a convicted felon has one year from the date of his sentencing to remember everything he can—to tell the government everything he knows about other criminal activity in exchange for a reduction in his sentence. But amendments passed in 1991, 2002, and 2004 added several exceptions to that rule.

The most problematic of these allows a prisoner to get time off in exchange for information he relays to prosecutors well after the one-year cutoff, if prosecutors believe the prisoner wasn’t aware that the information would have been valuable to them before. Critics say the exception is too vague and too easily manipulated. Prison inmates can now spend the entirety of their sentences monitoring the news and rumor mills for drug prosecutions involving people or places with which they’re even vaguely familiar, then write to prosecutors to offer up information with just enough knowledge of a given town or suspect to appear believable.

“It’s wide open now,” Melancon says. “Everybody in the federal prisons knows what’s going on outside. You’ve got these people with extremely long drug sentences who hear about a drug case in a town they’re familiar with. Now they realize they can tell the government things that happened years ago—true or not—and get time off their sentences.”

Judge James Gray, a drug war critic who sits on the Superior Court of Orange County, California, and also has served as an assistant U.S. attorney, says courts need to give more scrutiny to snitch testimony, and prosecutors need to verify it. “This is a game,” Gray says. “You have lots of people sitting in prison who will do virtually anything to get out. They’ll sell you out in a minute to get out of there. They have nothing to lose and everything to gain. And every guy that guy gives up is going to get his own mandatory minimum sentence. And he then becomes another source of potentially bad information for prosecutors. You can quickly rack up a lot of convictions. But it shouldn’t be surprising if, in the process, you create some cottage industries.”

The Trial
Because there was no appeal, there are no transcripts of the Colomb trial. The account here has been culled from post-trial briefs and rulings as well as interviews with the Colombs, their attorneys, Judge Melancon, and others who sat through the proceedings.

The Colomb trial began on March 20, 2006, with a jury of 11 whites and one Latino woman. There was one black alternate juror. Once Grayson had laid out the four incidents from the 1990s and the details of the 2001 raid, he brought his prison informants into court, one after another, each claiming to have sold enormous quantities of crack and powder cocaine to the Colombs. Most said the transactions took place in public, yet Grayson had no surveillance video, audio recordings, or witnesses to these transactions other than the informants themselves.

Judging from the informant testimony, Edward and Danny Colomb would have been buying some $500,000 worth of wholesale crack cocaine a month in 1994, while both were still in high school. The government alleged that Danny and Edward alone bought more than $15 million in cocaine between 1993 and 1999. Grayson offered no witnesses who bought any of that cocaine, nor did he produce any drugs or money, other than the 72 grams seized in the October 2001 raid.

The Colombs’ lawyers called witnesses who testified to various hard-labor jobs the Colomb boys held during the entire period under question. From 1995 to 1999—the height of the alleged conspiracy—Danny and Edward both took full-time jobs right out of high school doing backbreaking work for a cement contractor in Kaplan, Louisiana. From 1999 through 2000, Danny woke at 3 a.m. and worked until noon five days a week collecting garbage. From 1998 to 2000, while working both these jobs, Danny was also taking night classes at Remington College, where he earned an associate degree in electronics. From 2000 to 2005, he worked full time repairing office machines.

Grayson argued at the trial that he didn’t need to show how or where the Colombs got the money to buy all of that cocaine, or what they did with the money after they’d sold it. During his questioning of witnesses and in his oral arguments, he countered defense evidence of the Colombs’ modest lifestyle by pointing out that drug dealers are frequently robbed of their cash and tend to be deft at hiding and laundering money.

The trial lasted just under two weeks. The jury deliberated for five hours, then came back with its verdict: Edward, Danny, Sammie, and Ann were all guilty of running a drug conspiracy. (Sammie was acquitted on two related charges.) The four were taken into custody, then to a holding prison to await sentencing.

Ann Colomb didn’t do well in prison. “I have diabetes,” she says. “And I couldn’t treat it right in prison. So when I had an attack, they took me to the hospital. Because I was a prisoner, they put me in this cage with these bars and wire. I couldn’t wait with regular people. They kept me waiting in there, like a dog, while I was getting sicker. I couldn’t do anything but sit there in that little cage and look at the walls and wait for the doctor. It took hours. I thought, ‘This is it. I’m going to die in here.’ ”

The prison stint also took a toll on Danny, who was incarcerated just after learning Elizabeth was pregnant. He slipped further into depression. On the hearth in their home, Elizabeth keeps the stack of pictures she and her parents sent Danny while he was in prison. Mixed between family photos, pictures of pets, and wishes from church members were photos Elizabeth took of her bare belly as it swelled with their baby. “The photos got me by,” Danny says. “But I was missing Elizabeth’s pregnancy. And thinking about my child growing up without me was hard to take.”

The Carriers say Elizabeth wasn’t handling it well either. “She lost interest in her pregnancy,” Elizabeth’s mother, Lois, says. “We were worried she was going to lose the baby.”

Grayson’s insistence that the Colomb family be imprisoned while they awaited sentencing surprised both Melancon and the Colomb family’s attorneys. “It seemed mean,” Shapiro, Edward Colomb’s lawyer, says. “He didn’t have to do that.” It also may have come back to bite him. The Colombs’ four months in federal prison introduced them to one brave inmate who came forward with information that would devastate Grayson’s case and set the family free.

The Government’s Case Comes Apart
On the day the Colomb trial began, Assistant U.S. Attorney Joe Mickel, who works in the same office as Brett Grayson, received an extraordinary letter from a federal inmate named Quinn Alex, whom Mickel had prosecuted in a drug case.

While serving time at the Federal Correctional Institution in Three Rivers, Texas, Alex shared a cell with another convicted felon named Charles Anderson. Alex was upset because he had arranged for his girlfriend to wire Anderson’s girlfriend $2,200 in exchange for a file that included information about and photographs of the Colomb family. Alex had heard about the Colomb case from other inmates and planned to use the information he’d bought from Anderson to testify against the Colombs in exchange for time off from his own drug sentence. But after receiving Alex’s money, Anderson was transferred, and he never delivered on his promise.

Alex didn’t write to Mickel to expose the fact that inmates at Three Rivers were illegally sharing information and perjuring themselves in drug prosecutions. He was asking Mickel to prosecute Anderson for stealing his money. But the implications of the letter were profound. It was more evidence in support of the allegations from the Cotton trial about a perjury-generating jailhouse snitch ring in the federal prison system.

Attorneys for the Colomb family would later discover that Alex’s letter implicated several of the witnesses Grayson intended to call at the Colomb trial. In fact, by the time Grayson presented the letter to Judge Melancon on March 24, 2006, three of those witnesses had already testified. Melancon ordered Alex transferred to a nearby facility where he could be questioned by defense attorneys. After consulting with an attorney, Alex took the Fifth Amendment and refused to answer any questions.

The Colombs’ lawyers immediately asked for a mistrial. Perhaps due in part to the fact that he’d already been rebuked by the Fifth Circuit on the issue of informant testimony, Melancon denied the request. The jury in the Colomb case never learned of Alex’s letter. It’s a decision Melancon now says he regrets. “The allegation that money exchanged hands is really troubling,” Melancon says. “Where there’s that much smoke, there must be some fire. I should have declared a mistrial. Had the jury known what I knew, I don’t think they would have returned a guilty verdict.”

Alex’s complaint was more than a mere allegation. Defense lawyers later produced Western Union records documenting the $2,200 transfer. Although he argued against revealing Alex’s letter to the jury, Grayson called just eight more witnesses, far short of the 31 he had originally slated.

More revelations followed. While in the holding facility, Danny Davis met inmate “John Doe” while running prison Bible study sessions, and the two became friends. John Doe served time at Beaumont Low at the same time as many of the witnesses who testified in the Colomb trial. He soon concluded that Davis and his family had been wrongfully convicted. “He told me, ‘I don’t think you’re no drug dealer. And I can’t believe your mama is either,’ ” Davis says. According to the affidavit Doe signed, between 2003 and 2004 he observed witnesses who would later testify in the Colomb case “reviewing documents, including photographs.” He added, “It was obvious to me that these persons and others were preparing to testify against people for something that they did not do.” John Doe’s allegations were specific, verifiable, and consistent with both the Alex letter and the allegations from the Cotton
trial.

Unlike Grayson’s witnesses, John Doe had nothing to gain from coming forward and in fact had quite a bit to lose. “I’m willing to testify in court about what I saw,” he wrote in his affidavit, “because what they did was just cold. However, I am concerned about the danger I am putting myself in, and request that the court protect me.” In May 2006, two more witnesses came forward with evidence that government witnesses lied in the Colomb case. These witnesses also corroborated and confirmed what was in Quinn Alex’s letter and John Doe’s affidavit.

Attorneys for the Colomb family immediately filed motions for a new trial. In a sharply worded ruling issued on August 31, 2006, Judge Melancon threw out all of the Colomb convictions. Moreover, he strongly urged the U.S. Attorney’s Office to conduct a thorough investigation into the allegations of information sharing and ruled that if the government wanted to retry its case, it would have to first present him with the results of that investigation.

“What Judge Melancon did was rather ingenious,” says William Goode, Danny Davis’ lawyer. “The government either had to conduct this big investigation, which almost certainly would have impacted other cases, or they had to drop the charges against the Colombs. There’s no way they were going to conduct that investigation.”

In December 2006, Grayson’s office dropped the charges against the Colombs. Melancon then dismissed them with prejudice, precluding the government from ever bringing them again. Grayson referred all media queries to his supervisor, U.S. Attorney Donald Washington, who then took one last jab at the family. Refusing to admit the Colombs were innocent, Washington told the Lafayette Advertiser, “Though we continue to believe that these defendants were, in fact, trafficking drugs, we have decided not to pursue the case because of witness issues.”

Aftermath
The Colombs are free now and no longer need to worry about the conspiracy case. Ann and James Colomb’s home is safe from the U.S. government’s attempts to seize it. They and their children also say the police harassment has stopped. But the long ordeal took a toll on the family, and Ann and James have no savings left.

Legal experts say the Colombs are unlikely to get any compensation for their wrongful conviction and imprisonment. Last December, they found an attorney to help them with a lawsuit, but it’s a long shot at best, mostly because there’s no one to sue. The prison snitches themselves have no money. Any action against the sheriff’s deputies is well past the deadline set by law and would be difficult to prove anyway.

The most likely target of such a suit would be Assistant U.S. Attorney Grayson and his employer, the U.S. government. But Grayson and the federal government enjoy near total immunity from such suits. Prosecutors are almost completely insulated from lawsuits in order to prevent them from factoring potential litigation into their decision whether to pursue a case. A complaint would have to show that a prosecutor willfully or maliciously pursued charges he knew to be false—both of which are extremely difficult to prove.

After dismissing the charges against the Colombs in December 2006, Judge Melancon strongly urged U.S. Attorney Donald Washington’s office to investigate the allegations of information sharing at the federal prison facilities named in the Cotton and Colomb cases. “The problem wasn’t just this case,” Melancon says. “We potentially have a huge problem with this network in the federal prison system.

The question is how deep and far it goes. It’s worthy of an investigation at the highest levels.” He asked that Washington’s office either conduct its own investigation or have either the U.S. Attorney for the Southern District of Texas (where the prisons are located) or another investigator from the U.S. Department of Justice conduct it.

As of press time, none of the Colomb lawyers, the Colomb family, or anyone else affiliated with the case were aware of any such investigation. Melancon says he’s confident it’s being done, although he’s heard nothing about the investigation since his December 2006 ruling. Phone calls to U.S. Attorney Washington, Assistant U.S. Attorney Grayson, and the U.S. Attorney’s Office for the Southern District of Texas inquiring about the status of the investigation were not returned.

None of the witnesses in the Colomb case has been indicted. In fact, the federal government plans to use some of them again. In May 2006, Assistant U.S. Attorney Todd Clemons indicted seven men in another drug conspiracy case in Louisiana, also stemming from the prosecution of Houston kingpin John Timothy Cotton. According to Alfred Boustany, the attorney for one of the indicted seven, Clemons plans to call witnesses from the same prisons where the allegations of information sharing have lingered, including some of the witnesses from the Colomb case. There are already allegations of information sharing in the new case, including letters turned over by one inmate’s girlfriend in which a prison informant gives other inmates specific instructions on what to say to prosecutors.

Because Judge Melancon is scheduled to preside over that trial as well, he wouldn’t comment on it.

But sources close to the case say that in preliminary court proceedings, Melancon gave federal prosecutors a stern warning that he won’t allow uncorroborated snitch testimony and didn’t want to see a repeat of the Colomb fiasco in his courtroom.

“In my 30 years of criminal defense, the federal court system is the worst I’ve ever seen,” Boustany says. “Especially with drug cases. The government is prodding these people to lie. There’s no other way to look at it.”

Ann Colomb’s lawyer, Gerald Block, adds, “This case scared the hell out of me. These were clearly innocent people. And they nearly went to prison for a long time.”

Last July, Ann Colomb sifted through the half-dozen ratty briefcases cluttering her kitchen counter—cases spilling over with the court documents, arrest records, and statements from her boys and their friends she has collected over the years. She was putting together a short summary of what happened to her and her family to pitch to a Baton Rouge attorney she’d hoped might handle her lawsuit against the government. That attorney declined, as did many others, before she finally found someone to file the suit for her—just before the time limit set by the statute of limitations expired.

“What happened to us should never happen to anyone,” she says. “It breaks my heart that they’re trying to do it again.”

Radley Balko is a senior editor at Reason.

ADDENDUM: On March 13th, after this article went to press but before it appeared in print, Judge Tucker Melancon issued an order stating that on March 10, 2008 he met with U.S. Attorney Donald Washington and several assistant U.S. attorneys (though not Brett Grayson). The subject of the meeting was his order that the allegations of information sharing and perjury among prison informants revealed in the Colomb and Cotton trials be investigated. As a result of that meeting, Melancon determined that his order for an investigation had "been complied with."

The results of that investigation, however, are sealed. A clerk for Melancon said the judge couldn't comment on what was in the report because some of it may pertain to cases that could appear before his court. While that's understandable, it's unfortunate for the Colomb family. Not only will they not get to learn exactly why they were wrongfully convicted and imprisoned, it's likely that the contents of that investigation could be relevant to their civil lawsuit against Grayson and the federal government.

Operation Overdose

rbalko@reason.com (Radley Balko) — Thu, 01 May 2008 19:47:00 EDT

When people who have overdosed on heroin or morphine arrive in emergency rooms, they’re given a drug called naloxone. Public health advocates say a new version of the drug, marketed as Narcan, can be administered outside a hospital setting, potentially saving thousands of lives.

The antidote to opiate overdose comes in the form of a nasal spray that retails for about $10. Because it isn’t possible to administer Narcan in lethal doses, about 40 nonprofit groups and public health agencies across the United States have begun distributing kits containing a vial of the drug and a nasal sprayer to drug users.

The results have been encouraging. In January, Alex Kral of the research firm RTI International looked at 16 organizations distributing the kits and found that they’ve trained 20,950 people in how to give Narcan to an overdosing drug user. The trainees have successfully reversed 2,642 overdoses.

But not everyone is enthusiastic. Bertha Madras, deputy director of the Office of National Drug Control Policy, recently told National Public Radio that she opposes the distribution programs because she believes life-threatening overdoses are an important deterrent to drug use: “Sometimes having an overdose, being in an emergency room, having that contact with a health care professional is enough to make a person snap into the reality of the situation and snap into having someone give them services.” Take away the possibility of a fatal overdose, she argued, and more people will use drugs.

So Long, Seattle

rbalko@reason.com (Radley Balko) — Thu, 01 May 2008 19:56:00 EDT

In November 2006 voters in Seattle overwhelmingly approved a ballot initiative prohibiting taxpayer subsidies to professional sports teams. The vote effectively killed plans to build a $220 million taxpayer-funded stadium, shopping area, and practice court for the Seattle SuperSonics. The team had recently been sold to a group of investors led by the Oklahoma City businessman Clayton I. Bennett, who had threatened to move the team out of state unless he was given a new building.

In 2007 Bennett again unveiled plans for a new stadium, saying, “The net benefit of this building will provide an economic upside and will not be a tax drain.” When that effort also failed, Bennett concluded his only option was to move the team out of state. But to do so he needs to get out of his lease with Seattle’s Key Arena. The city argues that he should have to compensate it not just for the lost rental income but for the benefits the community receives as home to the Sonics. That puts Bennett in the uncomfortable position of now minimizing the team’s impact on the city.

“The financial issue is simple, and the city’s analysts agree, there will be no net economic loss if the Sonics leave Seattle,” Bennett’s lawyers argue in a brief. “Entertainment dollars not spent on the Sonics will be spent on Seattle’s many other sports and entertainment options. Seattleites will not reduce their entertainment budget simply because the Sonics leave.” The Seattle Times reports the team commissioned a survey showing that 66 percent of Seattleites say there would be “no difference” in their lives should the team decide to leave.

Even if Bennett’s legal strategy in Seattle is successful, it’s almost certain to come back to haunt him. If, as Bennett’s lawyers argue and most sports economists agree, money not spent at professional sports events would otherwise be spent on other entertainment in the city, Bennett will have a hard time making his case to voters in Oklahoma City. There he’s pushing for a $100 million subsidy package to fix up the city’s Ford Center stadium and build a new practice facility in the hope of bringing the Sonics to the Midwest.

"You Bet I Did, and I Enjoyed It. And I'll Slap Cuffs on Anyone Who Enjoyed It as Much as I Did."

rbalko@reason.com (Radley Balko) — Wed, 30 Apr 2008 08:26:00 EDT

New York City, home to admitted pot smoker (and pot enjoyer) Mayor Michael Bloomberg leads the world in marijuana arrests: over 370,000 in the last decade for the lowest possible level marijuana offense. More than half were black, despite the fact that just 25 percent of the city is black, and despite the fact that according to survey data, a higher percentage of white people actually use the drug.

The New York City ACLU says the discrepancy comes from the fact that minorities are much more likely than whites to be stopped and frisked. The end result is a much higher percentage of blacks than whites with a pot-related arrest record--and all that comes with that (including the loss of ever getting federal loans to go to college)--even though white people are more likely to actually use the drug.

More here.

Another Isolated Incident

rbalko@reason.com (Radley Balko) — Tue, 29 Apr 2008 08:03:00 EDT

Fish tank, meth lab—whatever.

Brooklyn Park police were looking for a meth lab, but they found a fish tank and the chemicals needed to maintain it.

And a few hours later, when the city sent a contractor to fix the door the police had smashed open Monday afternoon, it was obvious the city was trying to fix a mistake.
It happened while Kathy Adams was sleeping.

"And the next thing I know, a police officer is trying to get me out bed," she said.

And what thorough investigative work precipitated this raid?

Roehl said the drug task force was acting on a tip from a subcontractor for CenterPoint Energy, who had been in the home Friday to install a hot water heater.

"He got hit with a chemical smell that he said made him light headed, feel kind of nauseous," Roehl said.

The smell was vinegar, and maybe pickling lime, which were clearly marked in a bathroom Mr. Adams uses to mix chemicals for his salt water fish tank.

"I said, 'I call it his laboratory for his fish tanks,' " Mrs. Adams said, recalling her conversation with the CenterPoint technician. "I'm looking at the fish tank talking to this guy."

Police say there was no extended investigation, just an interview with the subcontractor.

Still, no one did anything wrong.

"From a cursory view, it doesn't look like our officers did anything wrong," said Capt. Greg Roehl.
[...]
"Everything this person told us turned out to be true, with the exception of what the purpose of the lab was," Roehl said.
[...]
Police say the detective who asked for the search warrant is an 8 ½-year veteran, but he just started working in the drug task force.

CenterPoint energy maintains the home was "unsafe" and it would have "irresponsible" for the subcontractor not to report it.

There Oughtta Be...a New Congressman

rbalko@reason.com (Radley Balko) — Mon, 28 Apr 2008 16:37:00 EDT

Stupid ideas never die...

Congressmen Peter J. Roskam (R-IL) today unveiled his “There Oughta Be a Law” initiative at a press conference in Bloomingdale. Roskam was joined by State Senator Dan Cronin, State Senator Kirk Dillard, State Senator Christine Radogno, State Senator Carol Pankau, State Representative Randy Ramey, State Representative Sandy Pihos, Bloomingdale Mayor Bob Iden and Erickson Elementary School Principal Dr. John Markgraf. Roskam released the following statement:

“As a new member of Congress, I have learned first-hand what most 6th District residents already know, Washington is broken. Partisan politics have hamstrung Congress’ ability to find solutions to the most pressing problems our nation faces.

“The constituents I represent are reasonable folks with sound ideas – and it’s time to send a little more 6th District solutions to Washington.

“Therefore, I am proud to give my constituents the unique opportunity to have their legislative idea introduced in Congress. The very best way to restore faith in our nation’s government is to empower individuals. This is the ultimate definition of representative government.

“Working together, we will send more common sense to Washington and Springfield.”

Results of prior "there oughtta be a law" competitions: drug testing for welfare recipients, and seat belts for dogs.

Jackson's Clarion-Ledger Confronts Dr. Hayne

rbalko@reason.com (Radley Balko) — Mon, 28 Apr 2008 10:40:00 EDT

Over the weekend, Mississippi's largest newspaper confronted controversial medical examiner Dr. Steven Hayne about some of the inconsistencies and inaccuracies in his CV. First, there's the matter of his alleged "board certification." If you'll remember, Hayne told a Jackson TV station last fall that he was board certified in forensic pathology but "couldn't remember" the name of the organization that had certified him. Since then, he's been clinging to an organization called "The American Board of Forensic Pathology," which sounds much like the organization he should have a certification from, but that actually no longer exists.

The American Board of Forensic Pathology sounds official in name but doesn't appear on a list of possible certifications put out by the National Association of Medical Examiners. A Google search for the board turned up only 10 listings.
When the board did exist in the early 1990s, it was administered through a little-known organization, the American Academy of Neurological and Orthopedic Surgeons, whose Web site includes a link to books of Persian poetry written by its chairman.
But in 1995, the academy decided to limit its certification to clinical orthopedic surgery, clinical neurosurgery, neurology and clinical spinal surgery.
All other boards and the certifications the academy offered went away, said Nick Rebel, the academy's executive director.
Hayne said he didn't know the American Board of Forensic Pathology ceased to exist.
But when questioned in a 2004 murder trial if he knew the academy no longer offered board certification in forensic pathology, he replied, "I'm aware of that."
Rebel said no one these days can claim to be "board certified" by the American Board of Forensic Pathology.
Hayne said he believed the board's nonexistence had no effect on his qualifications.

The doctor who proffered the test to Hayne was neurologist, not a forensic pathologist, and was later stripped of his medical license. The article then moves to Hayne's failure to pass the forensic pathology exam of the American Board of Pathology, universally regarded as the only legitimate certifying organization for medical examiners.

This board certified Hayne in anatomical and clinical pathology, but he failed the exam for forensic pathology in 1989. About 80 percent of first-time test takers pass the examination, according to board officials.
Hayne said he failed because he angrily walked out of the exam.
"The questions were absurd, counselor, ludicrous, absolutely absurd," he testified in the 2004 trial. "I convey to the jury the last question, the final straw that broke the camel's back. ... The question was specifically: 'What color is most associated with death?' And it included the color black or white, the color red, the color green.
"In Western civilization, black is associated with death. In the Orient, white is associated with death. Green is a color of decomposition, certainly associated with death. ... Blood is obviously associated with death ... To me, it was just the final absurd question. So I got up, handed my paper to the proctor and said, 'I leave, I quit. I'm not going to answer this type of material.' "
After reading Hayne's version of this event in The Clarion-Ledger, board officials contacted the newspaper.
"As the executive director of the American Board of Pathology I was surprised by Dr. Hayne's description of the 'stupid question' (related to colors associated with funerals) on his forensic pathology examination that caused him to walk out of the exam," Dr. Betsy Bennett said by e-mail. "Dr. Hayne took the forensic pathology examination in 1989. I pulled the text of this examination from our files, and there was no question on that examination that was remotely similar to Dr. Hayne's description."
Hayne responded, "She is flat wrong. She doesn't know what she's talking about."
He said he would stake his reputation and career on that question appearing on the test, saying, "It's like remembering where you were when men landed on the moon."

I would think this would be a pretty easy thing to prove, particularly if copies of the exam are still around. If there's no such question, Hayne's lying, and has been using the "color question" as an excuse for his failing the exam. Of course, even if the question was on the test, it doesn't excuse his misleading statement given thousands of times in court that he's "board certified" in forensic pathology when in fact he failed the exam given by the only organization understood by his colleagues to be the gold standard for certification in the field.

My expose of Hayne for reason here. List of prior articles and blog posts on Hayne here.

Suing the DA

rbalko@reason.com (Radley Balko) — Thu, 24 Apr 2008 12:00:00 EDT

Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor.

Goldstein served 24 years before his conviction was thrown out when the main witness against him was shown to have lied. That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell. Goldstein alleges that the district attorney's office that prosecuted the case routinely used the testimony of so-called "jailhouse snitches" prosecutors knew or should have known weren't reliable.

Goldstein's case is unusual because he's not suing the prosecutor who convicted him, but John Van de Camp, the district attorney who supervised that prosecutor. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein's case to go forward, causing the U.S. Supreme Court to agree to hear it.

Goldstein's lawsuit stems from federal law 42 U.S.C. 1983, which states that "…[e]very person" who acts under color of state law to deprive another of a constitutional rights shall be answerable to that person in a suit for damages," and provides a means for those wronged by government officials to file suit in federal court.

But there are exceptions to Section 1983 suits. In the 1976 case Imbler v. Pachtman, the U.S. Supreme Court carved out a wide exception to the law to exempt prosecutors. The Court said common law tradition grants prosecutors have what's known as "absolute immunity" from civil rights suits, meaning that they can't be sued, provided they're acting in their capacity as prosecutors. Few people enjoy such protections in their own line of work (judges have absolute immunity as well).

But this complete shield from accountability is especially problematic when we're talking about prosecutors. It's a job that's already plagued by incentive problems. We tend to measure a prosecutor's performance based on how many people he's able to throw in jail, not necessarily by how well he metes out justice.

Rarely, for example, does a prosecutor get public recognition for the cases he doesn't take. So we have people in a position where they have the enormous power to take away someone's freedom, incentives nudging them to err on the side of prosecuting aggressively, and absolute immunity from lawsuits should they overstep their bounds.

It's a recipe for abuse.

Generally speaking, it is smart public policy to shield prosecutors from lawsuits when it comes to determining in which cases they'll pursue charges. If we hamstring prosecutors into factoring potential lawsuits into determining whom to charge, we run the risk of bringing politics or the wealth and status of the accused into what should be a question of law, context, and propriety (any more than these things are already factor into such decisions, anyway).

But you could make a good case that absolute immunity takes this idea too far. Even police officers are given what's called "qualified immunity" from civil rights suits, which in 1983 the Supreme Court determined meant, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

That sets a hurdle for lawsuits against the police, but not a wall (some would argue that this hurdle is also too high). It might be time to consider applying that standard to prosecutors, too.

But the Goldstein case doesn't even seek to overturn the 1976 decision in Imbler. That would take an act of Congress—and again, perhaps that's something Congress should consider.

Instead, the suit targets Mr. Van de Kamp as the manager of the district attorney's office. It says that he's guilty of negligently overseeing his office, and allowing his subordinates to use unreliable, uncorroborated testimony from prison inmates.

Given the current makeup of the Supreme Court, I'd be pleasantly surprised if they allowed Goldstein's lawsuit to go forward. But they should.

More broadly, we need to reconsider the idea of absolute immunity for prosecutors.

There's plenty of evidence that this shield from accountability is allowing some prosecutor's offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions.

I recently reported a case in reason magazine quite similar to the Goldstein case. In 2006, Church Point, Louisiana resident Ann Colomb, 57, and her three sons were wrongly convicted in federal court of running a massive drug operation out of their home, thanks largely to the testimony of several jailhouse informants.

Despite the fact that the family's home was modest, and that the sons held down several hard labor jobs and went to school during the years of the alleged conspiracy, the government witnesses — who were offered time off from their own sentences in exchange for their testimony — claimed to have cumulatively sold the family some $500,000 worth of crack each month.

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms.

U.S. Attorney Donald Washington's office had been made aware of this network in a prior conspiracy case, yet his subordinates went on to ask some of the same witnesses to testify in the Colomb case. Even after the extent of the network was revealed in the Colomb trial, federal prosecutors attempted to use some of them again in yet another federal drug case.

Ann Colomb is now suing Washington's office. Whether her suit will be permitted to go forward may depend on what the Supreme Court does in the Goldstein case. As it stands, the family is broke from their criminal case. Though they were cleared of all charges, the government has yet to even apologize to them, much less compensate them for the five years they were under suspicion, of the four months they served in prison.

Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors' offices, but the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed—if uncomfortable—sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

Radley Balko is a senior editor for reason. A version of this article originally appeared at FoxNews.com.