Former Ohio Congressman James Traficant was released after spending seven years in Federal prison for racketeering, tax evasion, and fraud. His comments on prison life as told to Fox Network’s Greta Van Susteren:

“I come from seven years up at Rochester…a lot of good guys in there. They’re sort of like family in a way. It’s a different experience.”

“The first place I went was Allenwood, and I think the reason I went there is there were a lot of illegal immigrants there. And they knew I had the troops on the border…I think I was put in a position to be hurt.”

“Then I went to a place called Ray Brook up in upstate New York, known as “The Gladiator School. There’s a lot of violence. Well, it was a medium high…most political figures go to some camps in country clubs. I didn’t.”

“I mean, I was a prisoner, but I understood the dynamics of prison life. And now what you have is, they want to keep the prisons open, keep the jobs going. They’re putting 20, 30 years on some of these young people, and it’s out of hand.”

It would be great if Traficant uses his intelligence and his verbal skills to speak out on the need for prison reform–on how overcrowding in the prisons causes violence and inhumane conditions. He can use his ties to blue collar America to explain the problems with the prisons and how long prison sentences make people feel helpless. He can talk about how people who feel helpless feel like they have nothing to lose and turn to violence to get what they want. But on the other hand if he is going to whine about how he did not get special treatment because he is a ex Congressman he would be violating the great rapport he is supposed to have with the common man. He will lose his credibility and he will lose an opportunity to attempt to reform the prison system which he knows first hand.

The California Assembly on the last day of its 2009 session passed a statute cutting prison expenditures by 300,000,000 dollars and calling for the early release of 17,000 inmates. The state budget called for a reduction in the prison budget of 1.2 billion dollars. Approximately $700,000,000 can be saved by administrative actions controlled by Governor Schwarzenegger. This leaves the budget $230,000,000 dollars in the red.

Last August Governor Schwarzenegger and Democratic leaders came up with a plan to reduce the prison budget by 1.2 billion dollars. Specifically the plan would have required that:

— Inmates with less than 12 months to serve, who are over age 60 or who are medically incapacitated could be released from prison and given home detention with electronic monitoring.

— Sentences for certain property crimes will be lowered to misdemeanors, meaning convicts won’t have to spend time in prison. Those include vehicle theft, petty theft with a prior conviction, receiving stolen property and check-kiting, a scam that primarily targets banks with fraudulent deposits.

— Allow more inmates to gain early release by completing educational, vocational or substance abuse rehabilitation programs.

— Ease supervision for thousands of parolees, making it more difficult to send them back to prison for violations.

This plan was approved by the State Senate last month. But the Senate caved in and accepted the State Assemblys plan which will leave a $230,000,000 hole in the budget and will release less prisoners. The Assembly plan would allow the reduction of parole supervision of some low level offenders thus preventing them from being sent back to prison and it would allow some offender to earn reductions in their prison sentence by completing rehabilitation programs. But it would not provide an early release program for elderly or medically incapacitated inmate and it would not redesignate some crimes currently chargeable as either felonies or misdemeanors as misdemeanors.

But more importantly it does not solve the problem of the two ton elephant in the middle of the room. A panel of Federal judges has found that state prisons are unable to provide medical and psychiatric care to all of the inmates in the vastly overcrowded prison facilitities. They ordered the state to reduce the prison population by 40,000 within the next two years and to provide a plan on how this will be done before the end of the month. The state is appealing the order to the U. S. Supreme Court. The Supreme Court denied a request by the state to delay the formation of a plan to reduce the prison population.

When we last visited the story of Mark Ciavarella Jr. and Michael Conahan, about a month ago, the former Luzerne County Pennsylvania juvenile court judges had allegedly received kickbacks from a private jail in exchange for sending kids to the facility. In the process they denied the kids the right to an attorney and ran roughshod over the kids constitutional rights. Senior U.S. District Judge Edward M. Kosik rejected a sweetheart deal they made with prosecutors to spend a significantly below guideline sentence of 87 months in prison.

Wednesday, the Grand Jury indicted them in a 77 page indictment covering 48 counts of racketeering, extortion, bribery, money laundering, fraud and other crimes. The indictment was made public yesterday.

The indictment also seeks the return of 2.8 million dollars wrongfully obtain by Ciavarella and Conahan.

The arraignment on the indictment will be Tuesday.

In a series or regional meetings the United States Sentencing Commission has heard testimony that the Sentencing Guidelines for possession of child pornography are too high. According to an article in the National Law Journal, several judges testified at a Chicago meeting that guidelines for possession as contrasted to guideline for conveying or manufacturing child pornography are too high.

According to Chief Judge Gerald Rosen of the Eastern District of Michigan the guideline for the individual who receives a single video on-line may be greater than the guideline for the individual who repeatedly rapes a child over a period of time. Chief Judge Frank Easterbrook of the Seventh Circuit Court of Appeals pointed out that while a bank robber may get ten months a person charged with downloading child pornography may get 480 months.

The factors that judges must consider in sentencing an individual, for possession of pornography under the Sentencing Guidelines are part of the problem. For example the use of a computer to possess child pornography or the use of file sharing will significantly increase a sentence. Judge Rosen stated that the commission might consider volume of the pornographic material instead of the technology used to possess it.

The Sixth Circuit found that probable cause supported the search warrant in United States v. Dyer and affirmed the conviction.

A Tennessee police officer swore out an affidavit for a search warrant for a cabin rented by Stacy Lee Glance and used by Glance and Kenneth J. Dyer. The bulk of the information in the affidavit came from an unnamed confidential informant who was facing drug charges and hoping to get the charges dismissed in exchange for his/her assistance in convicting Glance and Dyer. Glance went to trial and was found not guilty. Dyer entered a conditional plea allowing him to challenge the search warrant on appeal.

The informant claimed to have seen a drug deal involving methamphetamine in the cabin. The authorities corroborated some minor details of the informant’s statement. The informant took the officer to the cabin. Cars owned by Glance and Dyer were outside the cabin. Furthermore Dyer and Glance were seen at the cabin. Dyer and Glance have criminal records for methamphetamine related crimes and Dyer had an outstanding warrant for methamphetamine from North Carolina.

On this information the Sixth Circuit found that probable cause supported the warrant. The issue here is the reliability of the information received from the informant. The problem with this is that all of the corroborating evidence involves innocent behavior. All we really know is that the informant knows Glance and Dyer. We also know that the informant has reason to provide false information since any information that he/she provides will be used to dismiss the charges against him/her or to ameliorate the sentence for his/her criminal behavior.

In another Seventh Circuit case involving a sexual predator the Court affirmed the conviction of Eric D. Zahursky. Zahursky repeatedly contacted “Shelly” (United States Secret Service Special Agent Ryan Moore) who claimed to be 14 on an adult chat line. Eventually they made arrangements to meet for sex at a Starbucks in Valparaiso, Iowa.

During the chat room discussions “Shelly” asked Zahursky to bring condoms, and K-Y jelly . When Zahursky arrived at the Starbucks he was arrested by Moore while another agent searched his car. In the car the agent found the condoms, the jelly and directions from Zahursky’s Illinois house to the Starbucks. On appeal Zahursky challenged the search. The Court found it to be a valid search under the automobile exception to the Fourth Amendment’s warrant requirement. The automobile exception started with The Supreme Court’s decision in Carroll v. United States It allows for a search of any vehicle for which there is probable cause that evidence of a crime will be found due to the mobility of the vehicle and the decreased expectation of privacy in a vehicle. The Court found that there was probable cause that the condoms, the K-Y jelly and other evidence of interstate travel (an element of the offense) would be found in the vehicle and therefore the search was legal even though it started before it was discovered that the K-Y jelly and the condoms were not in Zahursky’s pockets.

Another issue on appeal was the admission at trial of evidence of Zahursky’s other contacts with juveniles on chat lines and the use of a witness called “SS” who Zahursky lured into have sex five years prior to the trial when “SS” was fourteen. The appellate court found the evidence appropriate. Evidence cannot be admitted solely to show bad character or a propensity to commit a crime. But the appellate court found that the trial court admitted the evidence under Rule 404(b) of the Federal Evidence Code. Under Rule 404(b) evidence is admissible if

(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged;
(2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue;
(3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and
(4) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.

The appellate court found that the evidence was admissible to show knowledge, motive, and intent. The chat line evidence shows Zahursky’s interest in juvenile sex and therefore is admissible to show his motive in contacting “Shelly.” The numerous discussions on the chat line indicating the girls’ ages is admissible to show lack of mistake.

Zahursky argued that the chat line evidence should be excluded because the probative value of the evidence was substantially outweighed by excessively prejudicial details. But the court did not find that the chat line evidence was unduly prejudicial because Zahursky was unable to prove that as a result of the evidence the jury decided the matter on emotional grounds.

Finally the appellate court remanded the matter to the trial court for resentencing since the trial court erred in enhancing the sentence under the Federal sentencing guidelines for unduly influencing a minor. Based on Seventh Circuit precedent the court found that the enhancement was not appropriate when the “minor” is an agent.

Joseph Thomas was pulled over by an officer for a traffic violation. The officer then properly checked to see if Thomas had any warrants. The officer found no warrants in the name of Joseph Thomas but he did find a warrant in the name of Joshua Thomas for having six outstanding parking tickets. For some unknown reason Joshua Thomas’ warrant had Joseph Thomas’ drivers license number on it, although it had different addresses.

Thomas sued in Federal court on various state and Federal grounds, including violation of his Fourth Amendment and Due Process rights. He argued that under Illinois law officers had no right to prosecute individuals for failure to pay parking tickets.

The Seventh Circuit ruled that Thomas did not have standing to sue under the grounds that there was no right to arrest someone for failure to pay parking tickets since it was Joshua Tomas, not Joseph Thomas who failed to pay his parking tickets.

Thomas’ Due Process claim was that he did not receive notice that he could be arrested for not paying traffic tickets. But the Court easily denied this claim since Joseph Thomas did not have any outstanding parking tickets he would not have received notice even if the city gave such notices.

As to the Fourth Amendment claim the court citing Supreme Court decision in Atwater found that if there is probable cause for the arrest there is no Fourth Amendment violation even if there is no right to arrest the defendant under the statute.

But the problem here is that Thomas suffered a grievous wrong. He was arrested and forced to put up bail for a crime he did not commit. But there appears to be no remedy for the wrong. Usually in these cases you argue the lack of probable cause. But that’s a tough standard to meet. Without really discussing it the Seventh Circuit seems to accept that the officer had probable cause to arrest Thomas based on the fact that the warrant for Joshua Thomas had Joseph Thomas’ license number on it.

Cameron Todd Willingham was killed by the State of Texas on the false claim that he committed arson resulting in the death of his three children. That is a result of a study published in the New Yorker He was convicted of murder in a two day trial. The primary evidence against him was that of two fire inspectors. His attorney did not call any experts.

In 2005 after many years of complaints the State of Texas formed a commission to study the use of forensic evidence in murder trials. Willingham was one of the first cases to be studied by the commission. The Commission hired Craig Beyler, a noted arson expert to review the case.

In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. . . . . What’s more, Beyler determined that the investigation violated, as he put it to me, ‘not only the standards of today but even of the time period.

A panel appointed by the Innocence Project found that “each and every one” of the indicators of arson [used at Willingham's trial] had been “scientifically proven to be invalid.”

At Willingham’s trial Douglas Fogg the assistant fire chief of Corsicana, Texas, where Willingham lived with his family and Manuel Vasquez a deputy fire marshal testified that the cause of the fire was a liquid accelerant. But all of the scientific evidence indicates that each of the factors used by Fogg and Vasquez to prove that the fire was caused by a liquid accelerant actually proves the contrary. all of the evidence when examined in light of scientific tests indicates that the fire was accidentally started, probably by a heater that was in the children’s room.

Yesterday a statute took effect in Texas. All prosecutors and parole boards now have access to DNA evidence for crimes for which the statute of limitations has passed. This will allow them to use the information to attempt to lengthen the sentence of individuals for crimes in which the statute of limitations has not passed.

For example, say a defendant’s DNA matches that in a rape twenty years ago. Since the statute of limitations has passed he cannot be convicted for the old crime. But now he is charged with a rape that happened last year. The prosecutor could use the evidence of the old rape to attempt to get the defendant the maximum sentence in the newer crime.

If the information is only given to prosecutors and parole boards the law may well violate Wardius v. Oregon In Wardius the Supreme Court said that due process demands that discovery must be mutual. In other words if a statute allows a prosecutor access to information it must also allow the defense access to the information.

If the defense is given the information, the cost of defending the case goes way up as defense counsel needs to hire experts to test the DNA and challenge the validity of the police lab’s testing of the twenty year old substance.

While the law allows evidence to be used at sentencing that may not be admissible at trial, the use of DNA to show prior criminal activity where there was no trial or adversarial testing of the evidence may also violate due process. DNA evidence is very incriminating. Yet we know it is not 100% accurate and before its use to aggravate a sentence it should be subject to a jury using a beyond a reasonable doubt standard.

Yesterday’s posting described some of the evidence that Jaycee Lee Dugard is suffering from the Stockholm Syndrome. After I published the article more news came out supporting the proposition.

Phillip Craig Garrido, along with his wife Nancy, is charged with kidnapping Dugard 18 years ago. It is alleged that they kept Dugard and her two children, who he allegedly fathered, in their back yard in Antioch, California. Garrido owned a specialty printing company. According to some of his clients Dugard was the creative force behind the business. The clients were told that Dugard was Garrido’s daughter. She met with the clients. She spoke to them on the phone and she drafted their products and made changes in the products at their direction.

In none of the conversations with the clients did she tell them that she had been kidnapped or that she was not Garrido’s daughter. At no point did she suggest that she was being kept against her will or that she wanted to escape.

It is clear that Dugard had numerous opportunities to escape and to send messages to the authorities for help. But she did not take them. Presumably she could have asked any of the clients for help or she could have passed them a note asking them to call the police. She was kept in the back yard of Garrido’s house. She could have climber over the fence with her two daughters. After all a news photographer climbed over the fence to get into the yard and take pictures. But until last week there is no record that she tried to escape.

Dugard was eleven years old when she was kidnapped. While she never went to school after she was kidnapped, to work in a printing shop you must be quite literate and to handle the graphics portion of the work you must be quite talented. Someone had to teach her and it was probably Garrido who taught her. This meant that they worked closely together. This reinforces the Stockholm Syndrome. Victims often feel dependent on their oppressors. In addition to food, and housing Dugard was apparently dependent upon Garrido for education and training.

But working in Garrido’s business raises other questions. One of the characteristics of the Stockholm Syndrome is that the victim is isolated. Dugard interacted with clients and worked on projects with the clients. This questions how strictly she was isolated from others. It seems that isolation is more important in the early stages of the kidnapping. Once the victim feels totally dependent on the abductor the need for isolation may not be so great. In fact when she was discover by the UC police she was on the UC campus with Garrido and her children. They were interacting with others on the campus, handing out religious pamphlets.

Another characteristic of the Stockholm Syndrome is that the victim feels “love” towards the abductor. Once these feelings of love develop it may no longer be necessary to keep the person isolated. She apparently felt sufficiently in love with Garrido that she had no desired to report him to the authorities. She may have even enjoyed her life with the Garridos and her work in the print shop.

The good news is that Dugard is literate and she had job skills. This should help her become integrated into the community.

One thing for sure. It should be an interesting trial.