(The following article was originally posted on the "Support Chuck Turner" blog)
Reflections from Behind the Wall
Topic: Anatomy of a FrameUP
In last week’s first installment of Anatomy of a FrameUp, I outlined my background and lifetime of service. My purpose was to put US Attorney Sullivan’s sting and frameup in the context of my life’s work. This week I will focus on the day of the arrest and my reflections on it. Each of the remaining installments will have three segments. The first will be a narrative describing what happened in that particular segment of the experience and my reflections on it. The second will be an analysis examining what we may learn from my experience regarding the method of operation of US prosecutors; their police force, the FBI, and the court system. The third will focus on proposals for actions in our ongoing fight against prosecutorial terrorism.
Installment 2: Keystone Cops Strike Again:
On November 21, 2008, at 6:16 a.m. I was confronted in my office at City Hall by 10 white men and women, some in police uniforms. One of them barked at me, “Hang up the phone”. I had been talking with my wife, Terri, who had called me 10 minutes earlier, saying that the FBI had just come to our house to arrest me. My first response was “Well it finally happened” and we both laughed since Terri had been saying for years that my political work would result in my being killed or put in jail.
My second response was “Why are they going to arrest me.” She said she didn’t know and went on to say that they forced their way into the house when she told them that I had left for work. She was still relating her experience with them when the FBI accompanied by Boston Police burst into my office and ordered me to hang up the phone.
The large officer at the edge of my desk who had told me to hang up the phone, then ordered me to stand up and put my hands behind my back. As I followed his instructions, I started to laugh which infuriated him. “What are you laughing at?”, he shouted. I replied, “You would never understand”.
The situation was obviously a serious one. At the same time these ten “public safety officers” standing around me in my small office getting ready to handcuff a 68 year old, black, 9 year City Councilor, and lifelong activist seemed so ludicrous that I couldn’t help but laugh. It seemed that somehow I was playing a part in a grade C detective movie or perhaps even a Keystone Cops movie.
At that point, the leader of the group said move and I and the pack of “public safety officials” began to move out the door, some in front of me and some behind. As we walked down the hall to the elevators, I wanted to ask how much each of them earned per hour because it seemed like a tremendous waste of tax payer money. Did they think I was going to make a break for it and they needed ten officers to take me down? Even if they thought I was going to perform an act of civil disobedience, they wouldn’t need ten officers.
When the elevator arrived, it seemed that they all wanted to ride with me so most of us crowded into the elevator and rode to the first floor level where we walked out to the parking area where I saw a traditional red Ford parked and waiting for us. The young, male FBI agent who had interviewed me three weeks before said “Get in the car”. I turned my back to him so he could take the cuffs off, when he again barked “Get in the car”. I then realized that they were playing “We’ve caught the dangerous criminal who will make a run for it, if we take the handcuffs off”. Or maybe it was the “Now that we have arrested this arrogant, loudmouth “Negro” politician, lets show him whose in charge and how difficult we are going to make life for him”.
Regardless which scene they (the young female agent who had also interviewed me was by then standing beside him) were playing, the best thing to do was to try to make myself as comfortable as possible, hand cuffs and all in the back seat of their car. As I listened to them talk, it became apparent that they were getting ready to take me on a 45 minute ride to Worcester, MA. Apparently US Attorney Sullivan had scheduled my arrest to take place on the day that the judge magistrate who would arraign me was at the Courthouse in Worcester.
After about twenty minutes of trying to get comfortable with my hands cuffed behind my back, I started to have the urge to ask if they could at least loosen the cuffs. However, it occurred to me that their objective was to make me as uncomfortable as possible. So it was clear that the best thing to do was to suck it up and understand that my discomfort was miniscule compared to what others endure at the hands of “public safety officers” every day.
Unfortunately, when we arrived in Worcester, they couldn’t find their way to the court house. They kept asking questions of the person on the other end of their radio unit but it didn’t seem to do any good. However, after what seemed to be a half an hour, finally we arrived at the Worcester federal court house and parked in the back. The female officer opened the rear door and said “Get out”. I thought for a moment about resisting and forcing them to have the court officers carry me out of the car into the jail. But then an internal voice said what would be the point or value of an act of resistance at this point.
Sitting in the barren jail cell, with no idea of my crime, I felt very alone. I had no idea what time I would go before the judge. However, I knew I had to find some way to keep myself calm until that moment. Remembering Nichiren Daishonen, the Buddhist monk who had been imprisoned for his views, I began to chant “Nam Myo Ho Renge Kyo” the powerful chant he had developed. After a few minutes I would pause and then begin again.
After about an hour or so, I began to hear this strange clanging against the bars and realized that I was not alone. I assumed that the clanging was a message to stop chanting. At that moment, I was in no mood to take his or her feelings into consideration. I rationalized that whether s/he realized it, my chanting was helping both of us.
Eventually, I dozed off and was awakened by a guard saying that my lawyers had arrived. It was now two thirty. I was told that in a half hour, I would be led into court to begin the most difficult ordeal of my life. While I was being moved to Worcester, Terri had been contacted by Kazi Toure and Steve Kirshbaum, political allies, who when they heard I had been arrested secured legal assistance.
Kazi worked as an investigator for Barry Wilson, a local criminal lawyer, who agreed to represent me at the arraignment. Steve, a steward of the School Bus Drivers Union, asked John Pavlos, also a criminal lawyer, to join Barry. Also through the bus drivers union and the International Action Center, Steve organized a group of men to provide security on the porch of our house bringing a sense of relief to Terri who was being barraged by the ever present, ever insistent press.
In the short time we had before going before the magistrate, John and Barry showed me the affidavit that the prosecutor had given them. The affidavit said that I was being charged with extortion, three counts of lying to the FBI officials who had interviewed me three weeks before, and conspiracy with Senator Dianne Wilkerson, the first Black female state senator. There were also two pictures of a black hand putting something in my hand. I couldn’t see the person’s face but the picture on the wall led me to believe that it had been taken in my district office.
The affidavit identified the hand as belonging to US Attorney Sullivan’s cooperating witness who they only identified as a community business person. The senator and I were accused of being in a conspiracy to extort money from him. The charges of lying to FBI agents were based on the fact that when I was interviewed three weeks earlier on the day of the Senator’s arrest for taking bribes, I was asked three questions by the officers. Did I know a local businessman, Ron Wilburn? Did Mr. Wilburn ever offer to give me a fund raiser? Did Mr. Wilburn ever give me money? To which I answered No, No, and definitely Not. How could I been given money by a person that I didn’t even know. My answers to these questions increased the number of my crimes (counts) from two to five.
After talking briefly about the procedures of the court process and agreeing to meet the following Sunday, the three of us proceeded to court. When the court officer opened the door to the court room, what I saw almost brought tears to my eyes. The court room was filled. There were my wife and one of my daughters in the front row. Around them and back of them were a myriad of other friends and supporters. Despite the fact that Sullivan had arranged that the session would be held 45 miles away from Boston, my family, friends, and supporters were still there with me in my time of need. The moment just confirmed what I have always said, “Our greatest asset in the struggle for justice is the love and support of each other”.
As I turned to look at the judge and prosecutor, I was amazed by the smirk on the face of the person who would be presenting the government’s case, Asst US Attorney McNeil. I assumed he was thinking, “Now we’ve got you!” I said to myself “But you’re not going to keep me without the fight of your life” and smiled back. The formalities went quickly. The prosecutor read the charges. I plead not guilty. The judge said some other things that I don’t remember and released me on my own recognizance with the reminder that if I broke any of the conditions, I would not only go to jail but forfeit a $50,000 bond which meant to me that I would have to give the government $50,000 which would have been an impossibility.
Moving out of the court room surrounded by friends and family, someone said that the Boston City Council President Maureen Feeney had announced at noon that she was stripping me of my Council Committee seats and inviting me to meet with the Council on Monday, the next working day, to decide what they would do. I said to myself, “It’s amazing, a year ago, I went to Maureen as a representative of Team Unity, the four Boston City Councilors of color, and said that if she ran for President, we would support her because we thought she would be a fairer Council President than Councilor Flaherty. Now that’s she President, she’s tried me before I have even been indicted. Looks like we made a bad assumption about fairness.”
Before I could think any more about the irony of her actions, the doors to the outside were opened and in front of us were lights, cameras, and reporters shouting, “Do you have a statement. What have you got to say”. Understanding that to say nothing would be taken as an admission of guilt, I went to the battery of mikes, thinking that it was amazing that during my nine years as a Councilor, I would be lucky if any reporters showed up to cover what I thought were important news stories. Now that I am accused of being a corrupt politician, they all want to hear what I have to say.
So I made it short and sweet. “Let me be clear. I am not guilty of any of the charges. I have served the people of my district with integrity over the last nine years and intend to continue. And Council President Feeney has no right to take away my Council powers, I haven’t even been indicted.” Then it all became a blur as we moved to get into the car and drive to Boston to prepare for Monday’s confrontation with Council President Feeney and the Council.
1) Psychological Warfare:
The first piece of advice that my lawyers gave me was that the objective of those who I was fighting, the US Attorney and the FBI, was winning–not justice, not truth, not honest evidence–winning by any means necessary. As I talk with the men with whom I’m incarcerated, they say that their experience confirms that fact. I’ve heard estimates of the federal conviction rate that run from 92% to 98% with the vast majority of the convictions coming through the accused pleading guilty to try to get a lower sentence because of the fear of trying to fight.
One of the reasons, I believe, that there is a fear of fighting is that the key strategy employed is to convince the person that they have accused that there is no way to win so why even try. Even the way that I was arrested was designed to psychologically intimidate me and establish their power in my mind. It was also racist because it was not used with white elected officials arrested in Boston in the past.
In the cases of both the Senator and I, the FBI came to our houses a little before 6 in the morning, at a time when people are either still asleep or just waking up. Their purpose is to conduct the arrest at a time when the person is not fully conscious. This enables them to more easily implant the thought that they are too powerful a force to resist and creates a fear that further weakens resistance.
Since I was at the office when the FBI came to my house to arrest me and was warned by Terri that they were on the way to the office, they did not have the psychological advantage of surprise and disorientation when they arrived. However, their arrest strategy had other elements designed to psychologically intimidate. Sending 10 “public safety officers” to arrest a 68 year old City Councilor is absurd unless the point is to psychologically intimidate through a “show of force”. Then to have me stand up and be handcuffed made no sense unless their objective was to reinforce the thought that regardless of what position I held before they came, now I am a criminal and under their complete control.
The fact that they initiate the arrests at such an early hour also creates an additional psychological advantage for them. The wait between arrival at the courthouse jail at 6:30 or 7:00 o’clock in the morning and the arraignment that will probably occur in the late afternoon is also psychologically disruptive. The person therefore has to cope with a long period of time without support during which anxiety is bound to develop with a psychologically weakening effect
The staging of the arrest on a day when the judge was in Worcester, 45 miles away from Boston, I believe, was also part of their psychological design. Having me arraigned in a City a significant distance from Boston, they thought would cut down on the number of people who could come to support me as well as give me psychological strength. The implied message of this action was, “You might have support but we can find ways to cut you off from that support, anytime that we choose.”
The other crucial element of their strategy is to begin a process of convincing the public that the person is guilty before there can be any possibility of defense. This element is put into action through their ally, the media. Less than 2 hours after my arrest, the media locally and nationally were carrying the story of my arrest with pictures allegedly showing the crime taking place.
To reinforce the psychological imprint of the early news release, US Attorney Sullivan called an early morning press conference at which he told what I call “The Big Lie” in my next installment. The purpose of the lie was to hide the fact that the criminal scenario had been arranged by him not the Senator and I as he alleged in the affidavit and press conference.
If Sullivan had told the truth in the press conference, I couldn’t have been charged with conspiracy. How could the Senator and I be conspiring to extort money from Ron Wilburn, when Sullivan had been paying Wilburn, the alleged extorted businessman, for over a year to carry out a sting to entrap both of us. As I said earlier, the objective is not justice but winning. To tell the truth would have exposed his plot to frame me. But more about the “Big Lie” in the next installment.
2) Media: The Storm Troopers of Federal Prosecutors’ Psychological Warfare:
While the US prosecutors have direct control over the FBI to aid their efforts, they have indirect control over the media whose hunger for breaking news leads them to publicize the stories of the prosecutors without critical analysis. After the “reporters’ write what they have been given by the prosecutors to convict the defendant in the court of public opinion, the columnists follow up by giving their views to further convince the public that the FBI “Got the right man” or “woman”. All of this often before there has even been an indictment, as in my case.
The other role played by the media in the terror process is to incessantly hound the person and h/er family. It is hard to describe the feelings caused by having tv trucks and reporters’ cars outside your house from early in the morning to late at night. The incessant knocking on the door. The hounding while at work to answer their questions as if you owe them. The knocking on neighbors’ doors to get their opinions. In my case, reporters even called relatives in my home town to get their reaction before I could talk with them.
For me, it was particularly galling because in the past when there were important issues I wanted the media to cover, they acted as if I didn’t exist. However, now having an opportunity to ridicule and harass me, they were constantly at the door. The effect is a emotional wearing down not only through the intensity of their presence but also through the negative stories put in the press as well as on tv and radio. All of this takes place before the defense lawyers even have an opportunity to see the evidence. I believe this barrage of negative energy and coverage is one of the reasons why the federal prosecutors have such a high percentage of those accused taking a plea rather than going to court.
3) The Counts (Charges):
The charges themselves play a key role in the psychological warfare, through the number of counts and the description of the counts. For example, I was charged with extortion which made people think that I was being accused of threatening or coercing, Mr. Wilburn in some way. However, on the first day of the trial, the Judge explained to the jury that to find me guilty they did not have to find that I had put any pressure on Mr. Wilburn. In fact, I didn’t even have to ask him for anything (which I didn’t). All that was needed under the extortion law for me to be found guilty was for me to have been given something with the understanding that it was being given for me to take a particular action. When I heard the judge’s statement, I assumed that the law and its name had been designed by J.Edgar Hoover so that he could take down any elected official he didn’t like.
As I said above, the conspiracy charge would have been exposed as a lie if the truth about Ron Wilburn had been told by the US Attorney at the press conference. By keeping the conspiracy charge alive for two and a half years, they were able to cover the lie but by the time I went to trial, that charge had been dropped. So when the prosecutor admitted on the first day of the trial that Wilburn had been paid $30,000 by them to operate a sting, the fact that they had lied about the conspiracy was irrelevant because there were only four charges and extortion was not one of them. One of the four charges of course was extortion for allegedly accepting a thousand dollars in return for calling a hearing regarding discrimination in the distribution of liquor licenses. This was a hearing that the FBI admitted on the stand they did not want to take place because of the fear that it would embarrass the members of the Licensing Commission.
The other three counts (charges) related to the visit by the FBI agents on the day of the Senator’s arrest. Since I had nothing to fear as far as I knew, I agreed to meet with them. If I had exercised good judgment I would have refused to meet with them until I had consulted with an attorney. It is obvious now and should have been obvious then that the only reason the FBI would visit me on the morning of the Senator’s arrest would be to tie me into her case. The fact that I didn’t exercise good judgment I have to admit is one of the key reasons why I am writing this from a federal prison. Let that be a warning to all. If the FBI come calling, immediately call your lawyer.
The essence of the meeting was their asking me three questions. Do you know Ron Wilburn? Did Ron Wilburn offer you a fund raiser? Did you accept money from him. As I said earlier in this installment my answers were no, no, and certainly not. Even today I don’t remember the twenty five minutes we spent together as he carried out his instructions from his FBI handler. Yes, I’ve seen the pictures. Yes, I’ve listened to recordings of two conversations that lasted about 25 minutes and I’ve seen the transcript of our five minute conversation on the day that it is alleged that he gave me a $1000. But I still don’t remember meeting him. Even he admitted at trial that we had never met before he initiated contact at the request of the FBI. However, those three responses to their questions led to my being convicted for four felonies rather than one and added to their ability to put me in jail for 36 months. The judge also added another unofficial count by saying that he knew I had committed perjury when I testified in my own defense and used that “unofficial count” to add to my time of incarceration.
I recommend six actions that needed to counteract the prosecutorial terrorism practiced by the prosecutors and the FBI. First, the most important action to stop prosecutorial terrorism is to start a national campaign to create a law that makes it legal for prosecutors to be criminally charged as well sued for misconduct. At the present time prosecutors can Not be sued for conscious or unconscious acts of misconduct. The rampant prosecutorial terrorism is a logical consequence, I believe, of the desire of prosecutors at the federal, state, and local level to win by any means necessary and the inability to take legal action against them. “Power corrupts and absolute power corrupts absolutely”.
Even federal judges are relatively powerless to punish federal prosecutors for their misconduct. In Massachusetts, Mark Wolfe, Chief Justice of the Federal Bench, a former federal prosecutor, in 2007 asked the Bar Counsel of the Massachusetts Board of Bar Overseers to take disciplinary action against Jeffery Auerhahn. a veteran federal prosecutor. Asst US Attorney Auerhahn had withheld key evidence in a Mafia case in the 1990s. The panel established by the Bar Counsel took no action until the end of 2010 when they recommended that he be suspended. I am not sure whether that recommendation was approved.
In January 2009, two months before Sullivan resigned to become a law partner with John Ashcroft, former US Attorney General, Chief Justice Wolfe wrote a 42 page memorandum to Sullivan threatening to censure Asst US Attorney Susan Sullivan (no relation) or the US Attorney’s office or both based on her failure to disclose that a Boston police officer gave testimony in court in a Dorchester drug case that contradicted what the officer had told her on many occasions.
Expressing his frustration with continuous prosecutorial misconduct, he stated in the memo, “The egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government’s duties to disclose in cases assigned to this court”.
To reinforce his frustration, he listed nine major cases he presided over during the last two decades in which prosecutors working for US Attorney Michael Sullivan and his predecessors allegedly withheld important evidence. In several cases, he said the misconduct led to mistrials and convictions that were overturned (Boston Globe, January 27, 2009).
Interviewed by Johnathan Saltzman of the Glove after the memorandum was issued, Wolfe said that his only successful sanction in cases of prosecutorial misconduct over two decades occurred in 2002, when he ordered an inexperienced prosecutor to attend a seminar on wrongful convictions after the lawyer repeatedly withheld critical evidence.
It seems clear that if the Chief Justice of the Massachusetts Federal Bench has not been able to appropriately sanction misconduct on the part of prosecutors working for US Attorney Sullivan and previous US Attorneys, we can not expect federal judges in general to stop prosecutorial misconduct. We have to demand justice. We have to demand that prosecutors not be allowed to be above the law; that they be held accountable for their actions. The only way to accomplish this is to pass a law making it legal to criminally charge them as well as sue them for prosecutorial misconduct such as the lie that US Attorney Sullivan sent around the country on November 21, 2008 regarding my arrest.
Second, I think we need a campaign to require federal prosecutors to present to the court at the time of arraignment a statement of the procedures used in the arrests and an explanation of why those procedures were used. I believe this is a critical element in curtailing their use of psychological warfare as well as racism in handling arrests. Forcing them to expose to the court and the public how they conduct the business of arrests, I believe, will force them to end the double standards as well as the terror tactics that we have seen practiced in Boston and elsewhere.
Third, we need to require that affidavit which give the information regarding the crimes that led to the arrest be sealed until the trial begins and that similar action be taken regarding indictments based on grand jury proceedings. The public has a right to know the charges leading to the arrest. However, if there is any validity in the concept that a person should be viewed as innocent until s/he has been convicted by a jury of peers, the prosecutors and media have to be stopped from trying the defendant in the court of public opinion. Also, the sealing of the documents will stop prosecutors from using the pre trial media as a way of building their public image, heightening the possibilities for career advancement. This law would also have to carry criminal penalties for anyone distributing or publishing information from sealed court documents.
Fourth, the area of compiling the counts (charges) needs to be carefully examined for possible reforms. As said above, I believe the counts are part of the psychological warfare process. I couldn’t understand why the prosecutor and FBI kept searching for the book in which Ron Wilburn said he had written his telephone number on the day that he allegedly gave me $1000. I thought that if it could be found, it would actually support my contention of innocence since the jury would question why I was asking him for his telephone number if I had called him four hours before, giving him the signal to bring me $1000. Later, I realized that they would have used it to give me another count which would strengthen in their eyes the credibility of their case and increase the time that I would have to spend in jail if found guilty.
Fifth, we need to consider reforming the grand jury process that leads to indictments moving the court process to the pre trial stage. As now structured, particularly at the federal level, the prosecutors are in complete control of the process and spend months working with the grand jury. This naturally builds a strong relationship between the prosecutor and the grand jury which strengthens their willingness to support the government’s perspective. At the very least, people summoned to testify need to be allowed to have their lawyer present. At this time, only the person summoned is able to be in the grand jury room.
Sixth, we need to begin to train activists to understand psychological warfare; how it’s used; and how to resist it. It is understandable that our educational institutions don’t prepare us to develop our mental capabilities so that we are not susceptible to their psychological terror tactics. We have to appreciate that we are at war with those who use their power to create psychological havoc and mentally coerce people into a mindset where they are afraid to fight back against oppression. We have to arm ourselves with a science of the mind that will enable us to control our emotions even in the face of tactics designed to destroy our psychological stability.
Clearly, the fight to end prosecutorial terrorism will be long and hard. However, if America is to be strengthened as a democracy where the people in reality are in control, we have to develop a criminal justice system that focuses on justice.
Next Week’s Installment: The Big Lie