One senior prosecutor offered the following justification for resisting open-file discovery: “I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided.” The statement was made at a hearing before a federal judge in Virginia who threw out a murder conviction and death sentence as a result of prosecutorial misconduct that included withholding tapes of critical government witness interviews from the defence.[21]
The restrictive scope of discovery of the government’s case was only marginally modified in Conrad Black’s case. Ed Genson described situations in other cases where a judge would afford him five to ten minutes to read a witness’s statement before he had to embark on a cross-examination. At some point an unwritten rule developed that a minimum of thirty days notice would be provided. When Judge St. Eve extended the notice period to sixty days in the Black case, Eddie Greenspan, Black’s counsel from Toronto, noted with bewilderment that his American colleagues were thrilled. It was described as a “minor miracle.” He also confirmed that the statements, which were actual summaries prepared by an FBI agent, routinely arrived precisely as directed by the judge and never a day earlier.
Greenspan described the disclosure process in this fashion: “They throw every piece of paper at you. You receive millions of pieces of paper that aren’t collated or indexed. The disclosure can’t be presented in the Japanese language. That is what it seemed like. In Canada the Supreme Court of Canada set out a series of rational and highly principled rules surrounding disclosure in Stinchcombe.[22] They have absolutely no principles in the U.S.” According to Greenspan there were seven million pages of documents in the Black case, which were several million more than he managed to read personally. He added that during the trial, the prosecution kept turning over more discovery through their case-in-chief.
In Canada, witness statements that are actually statements of witnesses are routinely provided to the defence. Video or audio tapes of a material witness’s statement under oath and the original notes of the law enforcement officials involved with an investigation are basic components of the disclosure package that a Canadian prosecutor presents to the defence in a timely fashion. In America, such a practice would be construed as overly generous and a mistake. It would only provide a defendant in a criminal case with a level playing field. It is more laudable to corrupt the process than to promote its integrity. The overwhelming culture created in the American criminal justice system permits the prosecutors to punish defendants who exercise their right to go to trial and reward the legion of defendants who accept responsibility, plead guilty, and, most significantly, point fingers at others. Justice is effectively bartered in the prosecutor’s office, not fought for in the courtroom.[23] As one American defence attorney noted, “Practicing criminal law has become draining, dispiriting, and completely unsatisfying.”[24] In one case in Tampa, Florida, a lawyer bothered to have his fraudster client’s staggering sentence reduced to 835 years from 845 years with the tangible benefit of moving the sentence farther beyond the next millennium.[25]
The injustice begins with the manner in which indictments are instituted by grand juries under the federal system. Prosecutors decide what evidence will be submitted to a grand jury and are not obligated to inform the grand jurors about evidence of innocence. “The notion was that [grand juries] protects defendants-any defendants-against prosecutorial abuse is a fraud.”[26] The injustice is then compounded when the prosecutor packs the indictment with as many counts as possible. According to Ellen Podger, a law professor at Stetson University College of Law, “what may have once been a single white collar offence can become a multi-count indictment with charges of mail fraud, obstruction of justice, false statements and money laundering.”[27]
Several defence lawyers spoke to me about the built-in advantage that loading of counts in the indictment provides the government. Carmen Hernandez, a former president of the NACDL, emphasized that it is much more difficult to secure an acquittal with so many counts.[28] There is a psychological barrier for jurors to repeat a not-guilty verdict twenty times. This became a tangible hurdle for the defendants in the Black trial. Loading an indictment with a barrage of counts also serves the purpose of forcing guilty pleas.
The defendant who dares to accept the risk and conduct a trial is faced with the dismal prospect of a crushing sentence. Hernandez related to me the example of a defendant found guilty of distributing fifty grams of crack cocaine with a prior felony conviction for simple possession of marijuana. The sentence that would be imposed in such a case would be life imprisonment with no chance of parole. The defendant would die in prison.
Even an old trial warrior like Ed Genson felt trapped by the system’s plea inducement scheme. He shared with me a case that was scheduled for the following week. His client had been in a fight after being punched in the face. The client maintained that his assailant brandished a gun during the struggle. At that point he took out his own gun and shot his assailant once in the heart, instantly killed him. Genson had assessed his chances of winning the trial at about 80 percent. If his thirty-two-year-old client were convicted, he would serve a forty-five-year sentence of incarceration without a reduction of a single day. The prosecutor came with a generous offer that would leave his client serving about four and a half years in prison.
“What choice did my client really have?” he asked me. I had no suitable reply.
The sentencing guidelines that still retain a lot of force[29] were devised over twenty years ago, in theory to normalize the range of sentences imposed by judges and to infuse the process with some sense of due process. With hundreds of amendments added (almost invariably enhancements), the guidelines were used politically to increase sentences. The guidelines presently read like an elaborate tax code.
It is these sentencing guidelines that allowed the prosecutors in the Conrad Black trial to seek with straight faces a twenty-nine-month prison sentence for the star witness and co-operator David Radler, who pleaded guilty (premised on a fraud amount exceeding $30 million), and a dozen years for a minimal player like Mark Kipnis who dared to proceed to trial. The currency of co-operation in “the criminal justice flea market” has vitiated the very uniformity that the sentencing guidelines sought to achieve.
Why didn’t Mark Kipnis testify at his trial? Many, including Eddie Greenspan, believe that he should have. As Patricia Holmes explained to me, the decision began with an assessment of the risks involved under the guidelines that inhibit a defendant’s testimony. If Kipnis took the witness stand and was convicted, then it follows that he must have lied to the court during his testimony, and he would face a two-point enhancement of his sentence under the guidelines. Kipnis potentially would have faced three to five more years in prison. Even belated pangs of remorse offered to a probation officer after conviction could not expunge an enhanced sentence.[30]
Incredibly, the guidelines also permit prosecutors to rely on acquitted or uncharged conduct by a defendant, even for a charge as a serious murder.[31] As Greenspan observed, “If George Orwell were alive today he’d be hitting his forehead and wondering why he didn’t think of that one.” Genson described the unprincipled practice of artificially resuscitating a jury’s not-guilty verdicts as “disgraceful.” For instance, in a situation where a defendant charged with two separate sales of cocaine, one involving a single ounce and the other involving three kilos, a conviction on the lesser charge for the one-ounce sale permits the prosecutor to invite the judge to find on a preponderance of evidence that the defendant was involved in the three-kilo sale. The jury’s verdict becomes moot at that point and any sense of double jeopardy or due process is discarded.
If any Canadian prosecutor were to make a similar submission, he would be ordered to return to law school to relearn the basic rules of fairness and procedure. In America such a shameful practice of “acquitted conduct sentencing enhancement” is de rigueur, and the prosecutors in the Conrad Black trial eagerly attempted to hitch their cart to it.
More than 90 percent of criminal cases end in guilty pleas, magnifying the significance of the sentencing process.[32] Patricia Holmes, who is in the unique position of having been both an assistant United States attorney and a judge before becoming a defence lawyer,