ONLINE: EXCLUSIVE: U.S. prosecutors hold all the power

Tilted is, an account of the trial of Conrad Black, as witnessed by a veteran criminal lawyer and journalist who witnessed the trial from start to finish.

Steve Skurka shows how the trial was “tilted” from the outset by an American justice system that stacks the odds against the defendant, and a prosecution that played the “class card” in an attempt to demonize Black for his wealth and excesses. He also shows how Black attempted to tilt the trial in his own favour by using his wealth to mount a powerful defence.

The following is an exclusive excerpt from Tilted, which hits the shelves Feb. 23.

The United States federal system gives prosecutors the power to hold back the statements of witnesses until their evidence-in-chief is completed. [Conrad Black’s defence lawyer, Edward] Genson described situations in the past where a judge would afford him five to ten minutes to read a witness’s statement before he had to embark on his cross-examination.

At some point an unwritten rule developed that a minimum of thirty days’ notice would be provided. When Judge [Amy] St. Eve extended the notice period to sixty days in the Black case, [Black’s Canadian defence lawyer] Eddie Greenspan noted with some bewilderment that his American colleagues were thrilled.

It was described as a “minor miracle.” He also confirmed that the statements, which were actually 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 [R. v.] Stinchcombe.

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 rather 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. As one American defence attorney [Craig Horowitz] noted, “Practising criminal law has become draining, dispiriting and completely unsatisfying.”

The injustice begins with the manner in which indictments are instituted by grand juries under the federal system. Prosecutors choose the evidence that grand jurors hear and are not obliged to inform jurors about evidence of innocence. “The notion that [grand juries] protect defendants - any defendants - against prosecutorial abuse is a fraud.”

The injustice is then compounded when the prosecutor packs the indictment with as many counts as possible. Several defence lawyers spoke to me about the built-in advantage this provides the government. Carmen Hernandez, the current president of the National Association of Criminal Defense Lawyers (NACDL), the largest group of criminal defence lawyers in America, emphasized that it is much more difficult to secure an acquittal with so many counts.

There is a psychological barrier for jurors to repeat a not-guilty verdict twenty times. “Let’s give the prosecutor one,” is the overriding temptation. 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 roll the dice 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 feels 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. He maintained that his assailant brandished a gun during the struggle.

At that point he shot his assailant once in the heart and instantly killed him. Genson had assessed his chances of winning the trial at about eighty per cent . If his thirty-two-year-old client was 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.

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