cj#898> Tony Serra: KGB-ING AMERICA

1999-02-01

Richard Moore

dear cj,

this is last thing on the mac before packing and heading off for the airport and
ireland.

i noticed this article in the whole earth catalog and was thinking i'd type it 
in and post it, but fortunately jim sent it to me!

important stuff.

all the best,
rkm

----------------------------------------------------------------------------
From: •••@••.•••
Date: Sat, 30 Jan 1999 15:17:21 EST
To: •••@••.•••
Subject: Fwd:  [] KGB-ING AMERICA

a grim look at the good ol' US of A

Date: Sat, 30 Jan 1999 13:44:11 +0000
To: •••@••.•••
From: Peter Webster <•••@••.•••>
Subject: [] KGB-ING AMERICA

Subject: KGB-ing America

Is the kind of country Tony Serra describes below what you want to leave
our children? We're already well on the way to a police state.

Only the blind can fail to see the destruction of our freedoms on the
pagan altar of <bold>ABSTINENCE</bold>.

R Givens


Newshawk:- Hopwood

Pubdate: January 13, 1999

Source: Anderson Valley Advertiser (CA)

Copyright: Anderson Valley Advertiser

Contact: •••@••.•••

Author: Tony Serra


KGB-ING AMERICA


The late 60s, when I started practice, were marked by a great number of
salient political causes, embodied in demonstrations in Berkeley and San
Francisco. I came to represent the White Panthers, the Black Panthers.
the Symbionese Liberation Army, and a number of other groups like the New
Liberation Front. I confronted a phenomenon then, which we hoped would
diminish, but which has instead increased steadfastly. I'll call that
phenomenon "The Secret Police Motif: Orwellian Prophesy Fulfilled" or
"The KGB-ing of America."


Informants: In every criminal case in our alleged system of justice, some
form of spy mentality is now present. There are degrees of informants. We
probably have more nomenclature for informants than does any other
culture. We have citizen informants, confidential informants,
confidential reliable informants, unnamed anonymous informants,
informants who are precipient informants who are participatory,
informants who are merely eye-witnesses, informants who are
co-defendants, informants who precipitate charges by reverse stings. We
are con-fronting informants and cooperating witnesses at every level:
preliminary hearings, grand juries, and state and federal jury trials.
Our system of justice is permeated by the witness or the provocateur who
is paid by government for a role in either revealing or instigating
crime. It's probably the greatest tragedy of my career, in terms of
whether or not justice is really pursued and whether truth is a
foundation for actualizing justice.



I reason: if the defense went out and bought witnesses-paid $10,000 for
one witness, $20,000 for another, and $50,000 for another for their
testimony - it would be laughable from the jury's point of view they
would soundly reject that type of witness; they would be called
obstruction of justice defendants and the lawyers would he prosecuted.
Obviously, you can't do that. On the other hand, in every major case the
informant or cooperating witness gets something far more precious than
money; they get liberty. They get 20 years or 10 years knocked off their
sentences. They get to settle in a new lifestyle with a new identity and
obtain a job or relocating in the federal or state witness protection
program. The government is paying their witnesses with freedom. The
witnesses have to deliver what the government wants or they don't get
that bargain. As a consequence the courts are rife with false testimony;
every cause is polluted by informants. The adversary system is tainted
because everyone rolls or becomes a government witness and therefore
there is no opposition. Constitutional rights aren't litigated because
cases are determined by how much evidence an informant or corroborating
witness can give you. At every level, the independent judiciary is
eroding.


It's something we confront every day. People in the American sub-culture
experience paranoia because they never know who is a spy or an informant.
There's paranoia in he court system because you never know whether your
co-defendant is recording you. There's paranoia among the lawyers because
you never know if your own defendant is rolling behind your back and
recording you. In my opinion, the singularly unexpected and singularly
and singularly aspect of our system of criminal jurisprudence is the use
of the informant.


Grand  Juries: Back in the 60's the government used grand juries to some
small degree. Today, every Federal case - 99.9% of all Federal cases -
involves indictment by grand jury. That means no preliminary hearing, no
confrontation, and no lawyer present on the behalf of the accused. The
accused isn't there and doesn't see, hear or confront, or cross-examine
his or her accusers. The grand jury system by its nature is secretive; it
is considered a felony to reveal anything that occurred or what your
testimony was.


We have a kind of misplaced historical procedure. We inherited the grand
jury from English Common Law, where they used it to go after the lords
and persons who were otherwise above the law. In a sense it was needed
and justified then. But in our country, it is used now as an instrument
of terror. Everyone fears it. You have relatives testifying against one
another. With no confidentiality privilege with respect to family members
other than husbands and wives, you have parents called to testify against
their children. Children are called to testify against their parents, and
brother against sister, and so on. It lacks all due process. It is
immoral. It is an instrument of oppression. It's another secret tool of
an expanding executive branch.


Mandatory Sentences

"Three Strikes" types of penal laws are prevalent both in federal and
state jurisdictions. Beyond that, in most federal cases, at least in drug
cases, but spilling over into other arenas, the sentence is really set by
the legislative process and by the executive-that is, the law enforcement
agencies. They mandate what sentence is going to occur by how they file
charges. The judiciary lacks power or discretion to vary much, if at all,
from the mandatory sentencing and its attendant guidelines. You have a
fatal shrinking of the balance of powers. We're all taught that our
constitutional form of government works because of its tripartite system:
executive, legislative, judicial. When mandatory  sentencing occurs, the
legislative, actualized by the executive, has swallowed up the judiciary.
We do not have an independent judiciary. We have a rubber-stamp
judiciary.


We never anticipated in the 60s that one-third of the adult black
population in the United States of America would he either in custody or
on probation or parole. We have eliminated a whole generation of blacks
by incarcerating the youth; the ugly head of racism appears both as built
in ~ implied conditions in the law itself - and in how people are
charged. So you have a revisitation of something that we thought was
eliminated in the 60s: weakening of the judiciary as an independent body.
and the recurrence of racism wedded to mandatory sentences that lock
people away for inordinate periods of time.


We all know the platitude that our country presently has more people in
jails or prisons than any other country in the history of the world. That
was unpredictable in the 60s. We thought things were getting better. We
thought  that more freedom was going to occur, more understanding. more
compassion, more brotherhood and sisterhood, more actualization of
constitutional rights, aq more equal division of resources. Those motifs
of the 60s have been sadly aborted. What we have instead is approaching a
police state that is investigated by undercover officers and informants,
with judges' hands tied and prosecutors obtaining prison sentences that
we could never have conceived.


No Bail

The notion of bail is vastly eroding. We have a concept now built into
the law called "preventive detention," a euphemism that probably only
totalitarian states could create. But what that means is that in most
major cases, there's a presumption against bail. They don't have to give
you bail. We're taught as children that in anything other than a capital
offense, reasonable bail must be afforded. A presumption of innocence
underlies our system of criminal jurisprudance; we have a strong history
of not holding people in custody until their guilt or innocence has been
determined. That's not true anymore. Right now, the custodial status in
preconvicted sentences-people who have not yet been sentenced is
astronomical and the jails are filled not only with convicted people, but
with unconvicted people. We think that there are laws that establish
rights to a speedy trial in both federal and state cases, people languish
in custody one or two years awaiting trial. It's what I'll call another
plot, an agony visited upon criminal justice. In the 60s, we were naive,
we were optimistic, and we believed that reform and new and enlightened
ideas would ventilate through the judicial system. Instead, in most
areas, the system has clamped down.


Some of us are crying out. The legal profession cries out like the
miner's canary. We're saying, "The government is too strong. Beware!"
'"The jury system is being poisoned by propaganda. They're not fair and
impartial any more. Beware!" "Racism is creeping back into our system of
justice. Beware!" We hope that if we at least keep an eye on the
situation and report it in a dramatic fashion, then another generation
may do what we thought we were doing in the 60s, and swing the pendulum
back. Because if the pendulum doesn't swing-judicially and courtwise ~ we
are approaching a totalitarian state never before experienced in this
country.


Tony Serra,

the author is a well known North California defense attorney


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