Reason Magazine - Staff > Radley Balko

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.

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.

Burn the Byrne

rbalko@reason.com (Radley Balko) — Tue, 15 Apr 2008 07:00:00 EDT

Last month, police in Kentucky went on a 24-hour drug raid blitz. According to local media accounts, the raids uncovered 23 methamphetamine labs, seized more than 2,400 pounds of marijuana, identified 16 drug-endangered children and arrested 565 people for illegal drug use.

That's quite a day's work.

What inspired the blitz? Complaints from the citizenry? A vicious string of drug-related murders? An outbreak of overdoses?

No, none of that.

It seems that they were concerned that the federal government is about to turn off the funding spigot.

"During 'Operation Byrne Blitz,'" a local television station reported, "state police and highway patrol agencies, local police and sheriff's departments, and drug task forces throughout the country conducted undercover investigations, marijuana eradication efforts and drug interdiction activities. The collaborative effort, named for the federal grant program which funds many of the anti-drug efforts, underscored the impact that cuts to this funding could have on local and statewide drug enforcement."

The federal grant they're referring to, the Byrne Grant, is problematic for a lot of reasons. Chief among them is the way it warps police priorities by tying drug arrests to the federal teat.

The grants are often tied to arrest statistics, which encourage police officers to target low-level drug offenders instead of major dealers and suppliers. The grants often create multi-jurisdictional "drug task forces," which—because their authority extends across several counties—many times aren't directly accountable to anyone.

It was a Byrne-funded task force in Tulia, Texas, for example, that in 1999 arrested and prosecuted 46 people of drug crimes based on the word of an undercover police informant later found to have fabricated evidence.

Another task force wrongfully arrested and prosecuted 28 people in Hearne, Texas the next year, this time based on the word of a criminal police informant. In fact, the situation got so bad in Texas that the state eventually banned multi-jurisdictional drug task forces.

Because most Byrne grants are also tied directly to drug arrests, they encourage local police departments to use their manpower and resources on nonviolent drug offenses instead of more serious crimes like rape, robbery, or murder.

Surprisingly, it was the Republican-led Congress that started phasing out Byrne grants in the 1990s, a trend that has continued through the Bush administration, though they haven't yet been eliminated completely.

It's a good idea.

Even if you happen to be a supporter of the drug war, these grants do little to help fight it, and only serve to make local police departments less accountable and less transparent. Even the White House Office of Management and Budget has been sharply critical of the program.

Unfortunately, Congressional Democrats (and many Republicans) can't resist the easy, positive publicity that comes with a press release announcing the procurement of federal crime-fighting pork for the local police department.

Congress is now discussing bringing back Byrne grants in full force. One leading senate proponent of re-funding the grants is, unfortunately, Democratic presidential frontrunner Barack Obama.

But let's go back to Kentucky.

Kentucky Justice and Public Safety Secretary J. Michael Brown told one local media outlet of the Byrne-grant bltiz, "The impact of our drug task forces can be clearly seen in the success of this one-day blitz. While combining these efforts in a 24-hour period makes a statement, it's important to remember that these types of activities go on every day, and are a critical tool in eradicating illegal use."

That's one way of looking at it.

But here's a different possibility: If police in Kentucky can go out and find 2,400 pounds of marijuana in 24-hours anytime they want, just to make a political statement, that might be a pretty good sign that the grants—and the drug war in general—aren't working.

Radley Balko is a senior editor for reason.

Is This America's Best Prosecutor?

rbalko@reason.com (Radley Balko) — Mon, 07 Apr 2008 17:30:00 EDT

In 2006, Craig Watkins became the first African-American elected district attorney of any county in Texas history. More interestingly, the 40-year-old Watkins was elected in Dallas County, where the DA’s office has long been known for its aggressive prosecution tactics. A former defense attorney, Watkins says the Dallas DA’s office has for too long adopted a damaging “convict at all costs” philosophy, an argument bolstered by a string of wrongful convictions uncovered by the Texas Innocence Project in the months before he was elected. Watkins ran on a reform platform, and pulled out a surprising victory against a more experienced Republican opponent.

After taking office, Watkins dismissed nine top-level prosecutors in the office. Nine others left voluntarily. He established a “Conviction Integrity Unit” to ensure proper prosecutorial procedures, and began working with the Texas Innocence Project to find other cases of possible wrongful conviction. reason Senior Editor Radley Balko recently interviewed Watkins by phone.

reason: What inspired you to not only not put up obstacles to a group like the Texas Innocence Project, but to actually work with them proactively to seek out wrongful convictions in Dallas?

Watkins: We had had several exonerations here in Dallas County before I was elected. So as a result of that, we felt it was something we needed to look into, to see if anyone else we may have prosecuted in this county was wrongfully convicted. We take seriously our charge by the code of criminal procedure to “seek justice.” That’s one our responsibilities, to make sure innocent folks aren’t convicted. And we find they are or have been, we have to do everything we can to rectify the problem.

reason: How should a prosecutor balance his time and resources between prosecuting present-day cases and looking for cases of wrongful conviction?

Watkins: Well, before we got here, there was no one working on innocence cases. So there was no balance, because no one was doing it. We just decided to start a whole new section of the office dedicated solely to innocence. And they’re not only looking for bad convictions, they’re also looking at what policies and procedures we can put in place to keep them from happening in the future. So we aren’t really taking time away from prosecutions. We’ve just added positions that didn’t exist before.

reason: What specific steps did you take after winning office to address this issue?

Watkins: The first thing we did was set up this “Conviction Integrity Unit” in the district attorneys office. We immediately staffed it with two attorneys and two investigators, and told them to look at 400-some-odd cases for which there was DNA available to test. So their responsibility right now is to look through those 400 cases to see if there’s reason to suspect a wrongful conviction. If they find cases, we’ll then collect the DNA and test it. If it shows the person in prison is innocent, we’ll start proceedings for an exoneration.

In addition to that, the unit has the responsibility of training the younger lawyers here in the office on the ethical side of a prosecutor’s job—things like the importance of properly dealing with exculpatory evidence. And we intend to have this section here in this office forever. This is not a pilot program. It’s something I’d like to see spread across the country—where DAs will actively seek out convictions that were obtained unfairly.

reason: What are some common stakes you’re seeing repeated in these innocence cases? Do they tend to be willful mistakes, or more due to negligence?

Watkins: It’s a combination of things. Negligence, prosecutorial misconduct, faulty witness identification. It’s just been a mindset of “conviction at all costs” around here. So we changed that philosophy. We aren’t here to rack up convictions. We’re here to seek justice. Once we can get over that win at all costs mentality, I think we’ll see fewer and fewer of these wrongful convictions.

reason: You talk about the mindset of winning convictions at all costs. The legendary law-and-order Dallas prosecutor Henry Wade, who held the job you now hold for many, many years, embodied that philosophy. He’s known to have actually boasted about convicting innocent people—that convincing a jury to put an innocent man in jail proved his prowess as a prosecutor.

Watkins: Oh yeah, it was a badge of honor at the time—to knowingly convict someone that wasn’t guilty. It’s widely known among defense attorneys and prosecutors from that era. We had to come in clean out all the remnants of that older way of thinking.

reason: It’s hard to imagine anyone opposing what you’re doing—seeking out and freeing the wrongfully convicted. Do you have critics?

Watkins: We’re encountering a lot of criticism right now. I think a lot of it is motivated by political party. The Republicans are losing power in Dallas County, and they’re trying to regain it. So they’re doing whatever they can, even making the political mistake of attacking the work we’re doing on wrongful convictions.

reason: What possible arguments could they make against freeing innocent people?

Watkins: Initially, their argument was that it’s not the role of a prosecutor to look for bad convictions—that that’s the role of a defense attorney. But that didn’t work very well for them. And it’s wrong. Both the criminal code of the state of Texas and the American Bar Association’s code clearly state that the job of a prosecutor is to seek justice. That means if a person is guilty, you try to convict him. If he’s not, you don’t. And if you have reason to believe someone has been wrongly convicted, you have a responsibility to fix that.

Their new argument is, “Is this cost effective?” Is this unit we’ve created a net benefit for Dallas County? I guess my response to that is that if we find even one more person who has been wrongly convicted, then yes, it is cost effective. So I think their arguments are off base. And they’re going to have a hard time convincing the public that what we’re doing isn’t necessary.

reason: Dallas County has the highest exoneration rate in the country. That’s in part because of a fluke. In the 1980s, the county started sending biological evidence to a private lab to be tested. That lab kept all of the evidence pretty well preserved, enabling it to be used in DNA testing today. So Dallas is one of the few places in the country where evidence from that era can still be tested. Do you think the system in Dallas was particularly corrupt or broken to cause all of these wrongful convictions, or would we be seeing the high numbers of exonerations we’re seeing in Dallas all over the country if similar efforts had been made to preserve evidence in other places?

Watkins: I think it’s mostly because evidence was preserved in Dallas. I don’t think there was anything unique about the way Dallas was prosecuting crimes. It’s unfortunate that other places didn’t preserve evidence, too. We’re just in a unique position where I can look at a case, test DNA evidence from that period, and say without a doubt that a person is innocent. They can’t do that in other places. But that doesn’t mean other places don’t have the same problems Dallas had.

reason: Your approach to your job is unique enough that it’s earned you some headlines. What do you think about the way we look at the role of a prosecutor today? Are the incentives too geared toward rolling up convictions?

Watkins: Well we’ve obviously had this political mantra over the last 30 years about “getting tough on crime.” And I think too often, buried in that mantra is the implication that there’s no room for fair justice. We’ve stripped away protections for the accused. And as a result, I think many prosecutors went into a case with blinders on—like everyone was guilty. The more convictions you won, the better your chances to get re-elected or to move on to higher office. We’re now seeing the fallout from that mentality. Hopefully, the problems we’re now encountering will help it to change.

reason: What reforms or checks should DA’s offices put in place to guard against wrongful convictions?

Watkins: Well you know police departments file cases with us. We need to guard against being a rubber stamp for every case the police department sends our way. We need to be more skeptical. We also need to train prosecutors to think about their jobs in a different way. We shouldn’t be judging young prosecutors by how many convictions they win, or by how many people they put in jail. I’d also like to see a change in the way appellate courts look at these cases. Appellate courts are often too reluctant to second-guess a jury. But if there’s evidence there that makes you question whether the jury got it right, I think they need to be more willing to open their minds and take that second look.

reason: But it’s established law in most places that appellate courts give considerable deference to the jury’s verdict. When they do intervene, it’s generally on procedural issues. They tend to pass on actually reviewing the evidence in a case. Seems like a tall order to change that.

Watkins: I think the mere fact that we’ve had so many exonerations ought to move them to take a closer look at the evidence in criminal cases. You’re right that cases are generally appealed on technical issues. But take eyewitness identification. It’s been proven time and time again in studies that eyewitness identification is extremely unreliable. Yet police, prosecutors, and juries still tend to put a lot of faith in them. And these same studies show there are some basic steps you can take make eyewitness identifications more reliable, but that also would result in fewer identifications, and fewer prosecutions. But if there are procedures available to increase the validity of a form of evidence, and police and prosecutors aren’t using it, then they’re deliberately increasing the chances of a wrongful conviction in order to get more convictions. And defendants aren’t getting a fair trial. And I think that’s something the appellate courts ought to look at.

You also have to look at changes in technology. We have new methods and procedures that are better and more reliable than the old way of doing things. But the law tends to be static. If we’re consciously not using the methods proven to be more effective and more reliable, we’re not giving defendants the fairest possible trial. Appellate courts should be looking at that, too.

reason: Given the novel approach you’ve taken to the job, what are your prospects for getting reelected?

Watkins: Oh, I don’t know. I mean, I don’t think about it all that much. I go into my job looking to make sure we administer justice in a fair way. I hope my record will speak for itself. I hope people will see that we take a balanced approach, here. We convict the guilty, and we free the innocent. I’d hope that that’s what people would ask from a district attorney, and from a fair criminal justice system.

Radley Balko is a senior editor for reason.

Forfeiture Folly

rbalko@reason.com (Radley Balko) — Fri, 07 Mar 2008 07:51:00 EST

For most of their lives, Luther and Meredith Ricks worked at a steel foundry near Lima, Ohio. They say they’ve lived frugally and managed to save more than $400,000 over the years; they don’t trust banks, so they kept their savings in a safe in their house.

In June 2007 two burglars broke into the couple’s home. Luther and his son were attacked, and his son was stabbed before the elder Ricks was able to shoot and kill one of the intruders. The local police determined that he acted in self-defense and cleared him of any criminal wrongdoing. But they also found a small amount of marijuana in the house, which Ricks says he was using to manage the pain from his arthritis and a hip replacement surgery.

Ricks was never charged for the marijuana. Asset forfeiture laws nonetheless allowed the police to confiscate the couple’s life savings. Although the federal government had nothing to do with the burglary investigation, the Federal Bureau of Investigation soon stepped in and claimed the money for the feds.

Such seizures were supposed to become more difficult after Congress passed the Civil Asset Forfeiture Reform Act in 2000. But David B. Smith, author of the legal casebook Prosecution and Defense of Forfeiture Cases, says the courts have been steadily mitigating the 2000 bill’s impact, both by narrowly interpreting the protections it grants defendants and by being overly deferential to prosecutors when determining if they’ve met the new evidentiary standard. One provision of the law, for example, says explicitly that the government must reimburse defendants for court and attorneys fees in forfeiture cases the government loses. But Smith argued a case in 2007 in which the 3rd Circuit Court of Appeals refused to reimburse the legal fees of several defendants who were able to reclaim money seized by federal agents from a courier.

Ricks told a local newspaper the FBI informed him he has to prove he earned the money legitimately to get it back. Smith says that’s not quite correct. The 2000 law shifted the burden of proof from the owner of the seized property to the government, although it’s still a lower evidentiary standard than in a criminal case. “The FBI would need to show by a preponderance of the evidence that Ricks earned the money through illegal drug sales,” Smith says. Unless the bureau comes up with more evidence, that seems unlikely, given that the amount of marijuana in Ricks’ home was small enough that he wasn’t even charged.

Of course, most people in Ricks’ position aren’t familiar with the latest developments in forfeiture law. And they can’t afford to hire a lawyer who is, because the government has taken all of their money. At press time, several advocacy groups were mulling plans to offer Ricks legal representation.

Silencing the Dead

rbalko@reason.com (Radley Balko) — Fri, 07 Mar 2008 07:08:00 EST

Is an attorney released from the attorney-client privilege after his client dies? In North Carolina, the answer apparently is yes—but only if it helps prosecutors.

Lee Wayne Hunt is serving time in that state for a double murder he insists he did not commit. He was convicted in part due to lead-bullet analysis, a discredited forensic technique formerly used by the Federal Bureau of Investigation. The FBI now admits the technique is flawed but insists it’s under no obligation to do anything about the people convicted because of it.

The other evidence against Hunt, an admitted marijuana dealer, was testimony from two fellow dealers. After one of those dealers, Jerry Cashwell, committed suicide in prison, his lawyer came forward to say that prior to his death, Cashwell told him he alone committed the two murders for which Hunt was convicted. Upon learning that Hunt had been convicted based on faulty forensic evidence and the word of a convict who subsequently made a confession exonerating Hunt, the court did not grant Hunt a new trial. Instead it referred Cashwell’s lawyer to the state bar for an ethics investigation into a possible breech of attorney-client privilege.

That’s odd, because in 2006 the North Carolina Supreme Court ruled that prosecutors can force an attorney to divulge information that might help their case if the client who supplied the information has died. The opinion was written by I. Beverly Lake, now a lawyer in private practice representing Lee Wayne Hunt. “It makes no sense,” Lake told The Washington Post, “that a lawyer can be required to divulge information from a dead client to the state but then not be allowed to do the same if it helps a defendant.”

Data: Handout Bonanza

rbalko@reason.com (Radley Balko) — Mon, 31 Mar 2008 15:00:00 EDT

Since the 2000 presidential campaign, George W. Bush has often said that taxpayers spend their money more wisely than the federal government. That sentiment seems to clash with the administration’s willingness to prop up businesses and programs with federal subsidies, rather than leaving that money in citizens’ hands to spend as they see fit.

The Cato Institute’s Chris Edwards looked up the total number of subsidies handed out by the federal government since 1970. The chart below includes subsidies for states, cities, individuals, nonprofit groups, and businesses. The total number of subsidy programs has increased 25 percent since 2000.

Another Drug Raid Nightmare

rbalko@reason.com (Radley Balko) — Tue, 18 Mar 2008 16:30:00 EDT

Imagine you're home alone.

It's 8 p.m. You work an early shift and need to be out the door before sunrise, so you're already in bed. Your nerves are a bit frazzled, because earlier in the week someone broke into your home. Oddly, they didn't take anything; they just rifled through your belongings.

But the violation weighs on your mind. At about the time you drift off, you're awakened by fierce barking from your two large dogs. You hear someone crashing into your front door, as if he's trying to separate it from its hinges. You grab the gun you keep for home defense and leave your room to investigate.

This past January that scenario played out at the Chesapeake, Virginia, home of 28-year-old Ryan Frederick, a slight man of little more than 100 pounds. According to interviews since the incident, Frederick says when he looked toward his front door, he saw an intruder trying to enter through one of the lower door panels. So Frederick fired his gun.

The intruders were from the Chesapeake Police Department. They had come to serve a drug warrant. Frederick's bullet struck Detective Jarrod Shivers in the side, killing him. Frederick was arrested and has spent the last six weeks in a Chesapeake jail.

He has been charged with first degree murder. Paul Ebert, the special prosecutor assigned to the case, has indicated he may elevate the charge to capital murder, which would enable the state to seek the death penalty.

At the time of the raid, Ryan Frederick worked for a soft drink merchandiser. Current and former employers and co-workers speak highly of him. He also recently had gotten engaged, a welcome lift for a guy who'd had a run of tough luck.

He lost both parents early in life, and friends say the death of his mother hit particularly hard—Frederick discovered her in bed after she had overdosed on prescription medication. After the deaths of both parents, Frederick grew close to his grandmother, who then died two years ago.

Friends and neighbors describe Frederick as shy, self-effacing, non-confrontational, and hard-working. He had no prior criminal record. Frederick and his friends have conceded he smoked marijuana recreationally. But all—including his neighbors—insist there's no evidence he was growing or distributing the drug.

According to the search warrant, the police raided Frederick's home after a confidential informant told them he saw evidence of marijuana growing in a garage behind the home. The warrant says the informant saw several marijuana plants, plus lights, irrigation equipment and other gardening supplies.

After the raid, the police found the gardening supplies, but no plants. They also found a small amount of marijuana, but not much—only enough to charge Frederick with misdemeanor drug possession.

Frederick told a local television station that he was an avid gardener. A neighbor I spoke with backs him up, explaining that Frederick had an elaborate koi pond behind his home and raised a variety of tropical plants. He'd even given his neighbors gardening tips on occasion.

One of the plants Frederick told the local television station he raised was the Japanese maple, a plant that, when green, has leaves that look quite a bit like marijuana leaves.

So far, Chesapeake police have given no indication that they did any investigation to corroborate the tip from their informant. There's no mention in the search warrant of an undercover drug buy from Frederick or of any extensive surveillance of Frederick's home.

More disturbingly, the search warrant says the confidential informant was inside Frederick's house three days before the raid—about the same time Frederick says someone broke into his home. Frederick's supporters have told me that Frederick and his attorney now know the identity of the informant, and that it was the police informant who broke into Frederick's home.

Chesapeake's police department isn't commenting. But if true, all of this raises some very troubling questions about the raid, and about Frederick's continued incarceration.

Special prosecutor Paul Ebert said at a recent bond hearing for Frederick that Shivers, the detective who was killed, was in Frederick's yard when he was shot, and that Frederick fired through his door, knowing he was firing at police.

Frederick's attorney disputes this. Ebert also said Frederick should have known the intruders were police because there were a dozen or more officers at the scene. But some of Frederick's neighbors dispute this, too. One neighbor told me she saw only two officers immediately after the raid; she said the others showed up only after Shivers went down.

What's clear, though, is that Chesepeake police conducted a raid on a man with no prior criminal record. Even if their informant had been correct, Frederick was at worst suspected of growing marijuana plants in his garage. There was no indication he was a violent man—that it was necessary to take down his door after nightfall.

The raid in Chesapeake bears a striking resemblance to another that ended in a fatality. Last week, New Hanover County, N.C., agreed to pay $4.25 million to the parents of college student Peyton Strickland, who was killed when a deputy participating in a raid mistook the sound of a SWAT battering ram for a gunshot, and fired through the door as Strickland came to answer it.

In the case where a citizen mistakenly (and allegedly) shot through his door at a raiding police officer, the citizen is facing a murder charge; in the case where a raiding police officer mistakenly shot through a door and killed a citizen, there were no criminal charges.

Over the last quarter century, we've seen an astonishing rise in paramilitary police tactics by police departments across America. Peter Kraksa, professor of criminology at the University of Eastern Kentucky, ran a 20-year survey of SWAT team deployments and determined that they have increased 1,500 percent since the early 1980s—mostly to serve nonviolent drug warrants.

This is dangerous, senseless overkill. The margin of error is too thin, and the potential for tragedy too high to use these tactics unless they are in response to an already violent situation (think bank robberies, school shootings or hostage-takings). Breaking down doors to bust drug offenders creates violent situations; it doesn't defuse them.

Shivers' death is only the most recent example. And Ryan Frederick is merely the latest citizen to be put in the impossible position of being awakened from sleep, then having to determine in a matter of seconds if the men breaking into his home are police or criminal intruders.

You wonder how many people can honestly say they'd have handled it any differently than he did.

Radley Balko is a senior editor for reason. This article originally appeared at FoxNews.com.

"Someone Has To Start Wondering What the F Is Going On."

rbalko@reason.com (Radley Balko) — Fri, 07 Mar 2008 15:00:00 EST

Ed Burns is co-creator of HBO's critically acclaimed series The Wire, now concluding its fifth and final season. Burns is also the co-producer of Generation Kill, a forthcoming HBO miniseries based on journalist Evan Wright's book about the first stages of the war in Iraq. Burns is also a Vietnam veteran, a 20-year veteran of the Baltimore police force, and a teacher in the city’s public schools. He’s an outspoken critic of the drug war, the growth of prisons, and the structure, incentives, and organization of police departments.

reason Senior Editor Radley Balko recently interviewed Burns via telephone. Responses should be sent to letters@reason.com.

reason: This season of The Wire focuses pretty heavily on the media. What do you think the media does well when it comes to covering criminal justice issues, and what do you think it does poorly?

Ed Burns: I think a lot depends on who’s doing it. In specific cases, you can do extremely well as a reporter. My problem is more with the basic philosophy of how it’s done. It’s like a laser beam. They cover a specific aspect, or a specific trial, or a specific murder in a way that simplifies things, that makes them very stereotypical. It only takes one sentence to name the victim of a crime and the street where the crime took place. So they’re really only reporting something that we know is going to happen—because the conditions are there to make it happen—but they doesn’t go beyond that. There’s no context in crime reporting. That’s the problem.

reason: Slate’s media critic Jack Shafer has said that the media is at its absolute worst when covering the drug war. Do you agree with him, and if so, why do you think that it is?

Burns: Take just the term “war on drugs.” I mean, they’re not warring on drugs. They’re warring on drug addicts and the users and the small-time dealers. They’re warring on neighborhoods. They’re warring on people who can’t stand up to them. They’re not warring on major dealers.

You can follow it in any city, I don’t care how small it is or how big it is. If the paper is pretty avid about covering who’s getting locked up, you’ll notice that they’re not getting the big guys. They’re not getting the big stakeholders.

I think their whole approach is almost as if they were trying to separate us, trying to separate the classes by saying, “Look what’s happened down there. Look at these people down there, these people and what they’re doing.”

When I was teaching, you’d have a kid in, say, his junior year of high school. And you’d give him a list of things he could possibly do when he gets out. He could be a doctor, lawyer, all this kind of stuff. We’d make one of the options “drug addict,” and there are kids who always check it off.

The media reports as if these kids have all of these options, and they consciously make this decision to become a drug addict, and to risk the consequences of going up to the corner and getting themselves killed. That decision was made for him long before that kid got to be in the 11th grade. A lot of guys don’t even get that far.

This idea that there are lots of options for these kids and they choose a life on the corner, that’s too simplistic. But it’s the way these things get covered.

reason: We interviewed your co-producer David Simon just before The Wire’s fourth season. He said that though The Wire may be cynical about institutions, it treats its characters with a lot of affection. But the last two seasons seem to have gotten even more cynical. Many of the characters who show promise seem to either succumb to character flaws, or actually get punished for doing the right thing. Are viewers to take anything away from The Wire other than that our major institutions are failing, and there’s little reason for hope?

Burns: Well, I don’t think there’s much reason for hope if you keep doing the same thing over and over again, even though you know it’ll never work. Dietrich Bonhoeffer once said that if you get on the wrong train, running down the aisle in the opposite direction really doesn’t help. Basically that’s what we’ve done, we’ve gotten on entirely the wrong train, and we keep sprinting down the aisle in the other direction, trying to pretend that if we run fast enough, we can get it together and turn things around. We’re losing more than we’re winning, and there’s no reason for it.

I mean, if you go into West Baltimore, or East Baltimore, or any of these cities in the ghettos and you pick up a stone and you throw it, you’re probably going to hit a nonprofit. They’re all over the place. They aren’t working, because again we’re all on the same, wrong train. The nonprofits are fragmented. The whole thing is fragmented. It just doesn’t work.

So no. I don’t think we’re being cynical. I think we’re being factual. We’ve been fighting the drug war for 30 years. Thirty years of failure. But there’s some reason that we persist in this. What is it? We never explore why that is. But you just can’t spend this much money and get these few results and continue on like this. Someone has to start wondering what the fuck is going on.

reason: Critics have said the city of Baltimore is really the central character in the The Wire. Recently, we’ve seen some interesting developments in violent crime statistics. Large cities like New York and Los Angeles have continued with improvements that started in the 1990s, but smaller and medium-size cities like Baltimore, Cincinnati, and Indianapolis seem to be getting bloodier. Do you have any theories as to why that might be?

Burns: Yeah, sure, absolutely. I think New York’s murder rate is under 500 this year in 2007 and that’s out of a population of 8 million people. Baltimore’s murder rate was somewhere around 282 for a population of around 600,000 people. So we’re very close to New York just in raw numbers. The reason is that New York has an economy. There’s a vitality there. There are things happening. People have jobs.

In places like Baltimore, Detroit, and Cincinnati, the jobs that were there are gone. The manufacturing-based jobs are gone, and without that kind of job, it’s very, very difficult to jumpstart the economy. There’s no prospect for Baltimore having jobs in the near future. If you look at Baltimore now, what you’re seeing is a very decayed inner core. The east side of the city is being bought up by Johns Hopkins [the university and hospital]. They’re building a biotech park which is going to employ 6,000 people, but of those 6,000 people, you’ll be lucky to get three people who were originally from those neighborhoods. They just aren't qualified.

reason: You've said that too many narcotics police today have developed a gung-ho, cowboy mentality. You traced this trend back to the 1972 movie The French Connection. Could you elaborate?

Burns: Well, it’s just dumb. The Godfather, or The French Connection, which came out in the early '70s, those movies set the stage for both sides of the drug war. In The French Connection, [Detective] Popeye Doyle had this very cynical, harsh, rough, law-breaking type of drug style that sort of set the tone in how street narcotics guys work. Very flippant. What the movie didn’t pick up, and what you didn’t see, is all the intense surveillance and hard work that would go into a drug bust back then. But they put out the idea of this guy who cracks heads, especially in that scene they went and they shook the bar down. That became iconic. And that is the way the cops were afterward. I mean, you’d see white cops in black neighborhoods looking like Serpico, and they’re not undercover. It was just this mindset that took over of how you’re supposed to dress and act and the way you’re supposed to be.

The Godfather had a similar effect on the other side. It basically taught these emerging heroin gangs how to do business, how you set up your structure, with the code and the organization, the way you should have a boss, under-bosses—you know, capos. It got black, inner-city heroin dealers into the same mindset.

reason: How common do you think that is—drug dealers taking tips from the entertainment world? I’ve actually read that some dealers actually get advice from The Wire, particularly when it comes to communication systems they can use to evade police surveillance.

Burns: Well, if they’re looking at what we’re telling them, they won’t be learning much, because the technology has been out there. The Marlo Stanfields of today—those types of guys who I think of as mid-level drug dealers—there are just so many of them. They’re like the salmon going up the river. There’s really no way for law enforcement to stop all of these guys. There’s just too many of them. So the ones who take a modicum of precautions, the ones who are smart enough to stay low key, they’re completely under the radar screen, because it would just take too much work to even figure out who these guys are, and how to catch them. Only the really, really careless ones get caught.

reason: What effect do you think shows like Cops and Dallas SWAT have on police culture and police attitudes?

Burns: I can’t answer that question. I don’t watch any television.

reason: What’s your feeling on the militarization of domestic police departments, particularly as it relates to the drug war?

Burns: I think this whole thing was driven by the concept of numbers. You can quantify numbers, so if you’re in a war and you’re racking up numbers—numbers being arrests—it sets that military tone. Sort of like the way we’ve historically measured the success of wars in terms of casualties. The police departments that work in these hard neighborhoods are basically armies of occupation. Their job is to keep these people suppressed.

In Baltimore two years ago, they locked up 115,000 people from a population of 600,000. Now, let’s assume that they didn’t lock up anybody under the age of 8 or over the age of 70. They didn’t lock up that many white middle class people. That’s an awful lot of people from one particular group getting put behind bars. And many times, they’re getting locked up for things like sitting on the stoop drinking a beer, pissing in the alley, or just jaywalking in the street.

reason: The old “broken windows” theory, right?

Burns: [Laughs] Yeah. James Q. Wilson's trick. It doesn’t work. In fact, what it does do is alienate the police department from the community. So you’re an army of occupation, and because you’ve alienated the community, and you’re not getting any information. That’s a bad situation.

It’s the same thing they discovered in Iraq, oddly enough. Once they got away from the idea of suppression, they started getting much more information from Iraqis. The soldiers and Marines in Iraq basically use many of the techniques developed by law enforcement. They do the same type of searches. They gather the same type of information. They collate it the same way. They use cell phone data. They’re doing everything that law enforcement normally does. But they’re only successful when they’re connected with the people. In Baltimore, they’re not connected to the people because they’ve alienated everyone in the neighborhood.

So when you need to know something, when you need information, where do you go?

reason: What do you make of the "Stop Snitchin'" movement, the street campaign that discourages people from cooperating with police, which seems to have started in Baltimore?

Burns: Well, again, it’s something that’s incidental. It’s a symptom. If the police were connected, if the police were actively involved with the people in the neighborhood, the amount of information they would be getting would be so great that the whole idea of snitching wouldn’t be important. When I was a cop, having informants was a rare thing. They were looked down upon. I had sometimes as many as 50 guys working for me. I didn’t have to go out on the street. I could sit by the phone and just wait for the information to come. But you got that by being decent to people, working with them, helping them out on their little charges, stuff like that. That’s a lot of work and a lot of money comes out of your pocket to keep them happy and cooperative, but the amount of information you get back is profound.

Cops aren’t taught to do that anymore because today it’s all about numbers. You can get a number by just going up on the corner and grabbing somebody and getting a bag off of him. That’s the easy thing. If taking a guy in for drinking a beer on the street is a “1,” and catching the kingpin is a “1,” well, it takes two minutes to catch the guy with the beer can. It could take you two years to catch the kingpin. If numbers is all the department cares about, then the guy who pursues the kingpin is wasting his time.

And it is all about numbers. It’s how they talk, how they rate themselves. The fact that the murder rate in Baltimore stays constantly above the norm would be seem to be an indication that maybe they should try something different. But they’re bankrupt. They don’t have any idea what they need to do because they’re separated from the people. They’re not of the people. You’re policing as an army of occupation, not as police in the community. And that just doesn’t work.

reason: David Simon once wrote that you are “the living manifestation of lost wars,” since you were a soldier in Vietnam, a cop fighting the drug war, and a teacher in the public school system. Do you agree those three wars were or have been lost? Are there any institutional similarities you’ve observed that contributed to those three failures?

Burns: Well, we definitely lost Vietnam. And we lost Iraq. And we’ll lose any war where we allow an insurgency to exist. As for the war on drugs, I don’t think we’ll ever recover from the mindset we’ve gotten into to fight it. The educational system is an absolute and total disaster. And that of course is fueling the drug war, because there are so many kids who have no alternative but to spend their time on the corners.

The failure is institutional because no one sets out to lose these wars. This is dangerous stuff, self-defeating stuff. Education has no relevance. It doesn’t mean anything to these kids because they can’t connect to it. They spend those eight years or nine years in school because they have to. Of course, they have to learn something. And what they learn is how to sit quietly in a corner and make the school become a kind of training ground for the corners. The administration and the teachers basically become surrogate cops. And the kids play through these fantasies with the stand-in “cops” until they’ve tested their mettle enough to go up on the corners and try it with the real guys.

We’ve had 20, 30 years of this stuff, and 20, 30 years of spending billions of dollars on failed systems. And if you go to one of the private schools and see these kids in action and then go to an inner city public school, you can see the chasm. There’s separation even in the way of being, in the way they think, in how they operate. It’s profound, but it’s nothing new. We’ve been doing this for a long time.

reason: What reforms do you think are necessary? What can policy makers do to make public schools more effective?

Burns: Five years ago I couldn’t have given you an answer to that question. But I’ve learned about a program right now in Harlem. It’s been around for 12 years now. It’s called the Harlem Children’s Zone. The basic philosophy is so logical and so obvious. What works in the middle class is that you have input, the healthy positive input into an infant every day of that child’s life, as an infant and as a young child. Somebody’s always there. That’s how we raise our kids, and the success rate is very, very high. There are some failures in the middle class and the upper middle class, but the success rate is high.

That’s what they do in Harlem in the Children’s Zone—with about 35,000 kids. From birth, someone is with that kid until he gets out of college. They’re normal kids—not geniuses or anything—but they will be able to break the cycle of poverty and of drugs in those neighborhoods because those kids are not focused on drugs and poverty. They’re focused on the positive aspects that come from traditionally raising kids where you expect things from them. You tell them how good they are, you boost their egos, and you light the fires under them. That’s how you do it. That’s how it’s done in most middle class homes. I mean, that’s how simple it is. In Harlem, it cost them $4,500 a child.

And in talking with Geoff Canada, who runs the program up there, they’ve had 2,200 different groups—around 2,200 groups that have come to see their program. People who come to watch are impressed and want to go back to other states, to other countries, with the hope of implementing the program. Yet there isn’t another Children’s Zone that I know of anywhere in the country.

reason: Is that from a lack of funding?

Burns: From what Geoff surmises, it’s more about turf. If I come into your turf and let’s say you’re running a rehab center, or you’re running a day care program or whatever, that’s your little fiefdom, you know what I mean? That’s your little piece of the pie. You’re not going to give that up easily. You’re going to fight anything that tries to change that. You don’t want to be beholden to some bigger process, where you’ll then have to belong to something bigger and show results. No one wants to do that because they’re already not showing the kind of results that these types of processes require.

Maybe you’re showing anecdotal results. You know, “I saved this kid but I lost those 20 others.” These kinds of little empires are all over the place, and unfortunately, they have the ears of the politicians. It’s something where you have to almost come in and cut the Gordian knot and just do it. It makes absolute sense, but of course, we’re not focused on this, so we’re focused basically on surviving and shorter-term goals.

reason: You just finished shooting an HBO miniseries based on Generation Kill, Evan Wright’s book on the early stages of the Iraq War. You said earlier you believe Iraq is going to be a failure just as Vietnam was. Did you draw on your experiences in Vietnam at all in that project? Do you see many parallels between the two wars?

Burns: Just knowing the military was a big asset for me in helping to shape the series. The thing about Iraq is that it is the same scenario as Vietnam. There’s an insurgency that’s taken hold in the population, and once that happens, you might as well leave. There’s nothing you can do. And Iraq is getting ready to explode on us. Actually, it’s already exploded on us, but it’s going to continue to explode on us and we’re going to eventually be forced out. Or we’ll retire to these super bases and just try to drain the country of its oil. But we will never win the hearts and minds of those people. Fundamentally that was what we set out to do, to bring democracy to that country.

The same thing happened in Vietnam. These insurgencies are national movements. These people don’t want us in their country. And once that happens, once that mindset’s there, you know you’re in trouble. What we’re doing now is paying the Sunnis not to kill us. That only lasts for so long.

reason: How would you describe your personal politics?

Burns: Liberal. Liberal to radical. I’m pretty fed up with what’s going on.

reason: Is there any concrete policy you can think of that would lead to the more community oriented style of policing you’ve described?

Burns: You would have to change the nature of the institution. You’d have to stop making it a numbers game. Now, how do you do that with people who've been inculcated with this idea that it’s all about numbers? These guys have got computers, they've got charts, they’ve got all this kind of stuff, and it all revolves around locking people up. Clearly, that’s not the way to go. But it's how they sell themselves to politicians, and how they sell themselves to these community relation groups. This stuff is about locking people up.

The police should be focused on the most serious crimes, and in Baltimore the most serious crimes are murder, rape, and robbery. So you try to diffuse the other stuff, but you have to start putting your resources into those. Because if a person kills someone in the neighborhood, the neighborhood knows who did it. If the police don’t catch that person, and that guy’s walking around having beaten a murder, all the police credibility goes out the window.

It’s the same thing if you go up on the corner and you roust an addict while the guy sitting across from the addict has a gun. Everybody in the neighborhood knows he’s got the gun because he’s the bodyguard. And you don’t grab him. The people are thinking, well, maybe the dude is paying the police off. Why else would they grab the harmless addict but not the guy with the gun? Again, the problem is that the police are operating without information, and playing to the numbers. If I’m locking you up for petty stuff, you’re not going to be telling me shit. If I’m locking you up two and three times a month, you’re especially not going to tell me anything.

So how do you change all of this? You change the numbers game. You require police to reconnect with the people, and you start focusing everybody on the major crimes, the ones that make living very, very difficult—murder, rape, and robbery.

Radley Balko is a senior editor for reason.