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by Andrew Kreig
The story of how authorities denied a white-collar Boston convict medical care that might have detected the man's Stage IV cancer is one of several horrific news columns in recent days about our prosecution and prisoner system.
Salvatore F. DiMasi is a former speaker of the House in Massachusetts serving an eight-year year term on corruption charges. DiMasi, one of his state's leaders in its landmark program to expand health care, was himself denied medical care for months by federal authorities after he discovered lumps in his neck, according to a Boston Phoenix column this week by civil liberties lawyer Harvey Silverglate. "By the time he was treated, the cancer had reached stage IV," Silverglate wrote, adding:
"Question: what do the federal government's "war on terror" and its "war on political corruption" have in common? Answer: torture."
Silverglate, above left, has been an adjunct law professor at Harvard Law School and private litigator for many years. He reports that DiMasi was imprisoned far from his home state despite the recommendation of his sentencing judge and denied medical care because authorities either wanted to break his spirit or simply did not care about his health.
There are several similar reports over recent days that should give us all pause. After all, it is our justice system, created with our taxes and by officials whom we select.
Update: An Alabama federal judge implicated in the most notorious political prosecution of the last decade not only remains on the case, but issued a decision July 5 that former Alabama Gov. Don Siegelman is not entitled to a new trial on corruption charges and must face resentencing on corruption charges Aug. 3. The decision was issued by U.S. District Judge Mark Fuller, a Republican whose private company received some $300 million in secret federal payments while he issued many pro-prosecution rulings in the trump-up charges against Siegelman. Siegelman, governor from 1999 to 2003, was his state's most popular Democrat before he was targeted in 1999 by Republican prosecutors in a case continued by President's Obama's Justice Department as they closed ranks.
The case illustrates the vast scandal regarding the judge and the Justice Department. Yet no one in authority even wants to look into the mess except to ensure that Siegelman is packed away to prison and all secrets remain hidden.
In May, for example, it was revealed that the married Judge Fuller was involved in a multi-year affair with his court clerk, also married. Fuller's wife filed for divorce, seeking access to family records on finances and suggesting also the judge had been improperly using drugs. Before then, the House Judiciary Committee received sworn testimony from a Republican Alabama lawyer, Jill Simpson, who swore she heard a fellow Republican tell her Fuller had been picked even before Siegelman knew he was being investigated in 2005 to "hang" the defendant. She said she stepped forward because she knew that the Bush administration was secretly enriching Fuller with the no-bid awards and that the judge "hated" the defendant because Siegelman, as governor, had named a prosecutor to look into a claim Fuller was trying to bilk the state's pension fund out of $330,000.
But authorities apparently have done little to follow up the many years of such allegations, except to stick together and support the powerful and wealthy judge, chief federal judge from 2004 to 2011 in Alabama's Montgomery-based district and shown above right in a photo by freelancer Phil Fleming. Fleming says the judge requested the portrait in a celebratory mood moments after the jury's 2006 verdict in the Siegelman case. Over the protest of our Justice Integrity Project and two Alabama news outlets, the state judge presiding over Fuller's divorced sealed the file in apparent violation of Alabama precedent. This way, Fuller can receive more privacy regarding his financial, romantic and other practices than accorded other litigants in the state. Details below.
In other news: Destroying the soul, published by the Vanderbilt University humanities professor Colin Dayan in the Washington Post July 5, describes the vast cruelty and expense required to keep prisoners in sensory deprivation in SuperMax cells.
Also, in the Post, longtime litigator Brendan V. Sullivan Jr., the defense lawyer for former Alaska Sen. Ted Stevens during his 2008 corruption trial, described as a whitewash the Justice Department's new disciplinary report for prosecutors who illegally withheld evidence from the defense. That caused an unjust conviction for Stevens, at left, and doubtless the Republican's loss of a senate seat by a narrow margin in an election just after the now-vacated verdict.
"The underlying misconduct represents a shameful chapter in the Justice Department’s history," Sullivan wrote. "But the department’s failure to punish wrongdoers makes the scandal worse, and the failure makes a mockery of the attorney general’s effort to establish a standard of propriety that the goal of prosecutors is to do justice, not to win at all costs."
Many such well-documented tales of abuses and cover-ups occur, but we hear of few reform actions that are effective. That's why our own reporting occasionally focuses on the news media or on politicians, as in a report the Chicago Tribune was caught outsourcing some of its local coverage to overseas-based scriveners using phony "bylines."
That out-sourcing scandal surely was an aberration. But the long-term trends of cost-cutting and the false-economies of privatization are continuing, if not growing. On Monday, we excerpted a story about an unemployed woman in Alabama who was imprisoned for 40 days because she couldn't pay a $179 speeding ticket. She now faces more than $3,000 in additional costs to pay the private contractor that jailed her in a system recalling the debtors prisons of the 1800s Dickens era in London. One of my Alabama sources, an attorney, wrote say the situation was not unusual. My source described the region's high unemployment and poverty, and government officials' heartless schemes to allow politically connected private companies to extract profits from defendants. We previously considered the justice system to require government operation for reasons of accountability.
But government control is no panacea. Also in Alabama, my friend Roger Shuler blogged this week on how state-run University of Alabama -- where he worked for 19 years is -- much like Penn State University because both are heavily involved in scandals that few have wanted to investigate, as illustrated by the Jerry Sandusky sex scandal at Penn State.
This would all seem discouraging, if not hopeless -- except for the tireless crusaders such as those featured here. They bring these abuses to wider attention.
In that spirit is Louis Manzo, a former New Jersey assemblyman and Jersey City mayoral, who gave a lecture at a local library last week describing vast federal abuses in its unsuccessful prosecution of him on corruption charges. The sting that helped propel former New Jersey U.S. Attorney Chris Christie into the governor's mansion, and Manzo's analysis is excerpted on a video that will be played by local Channel 51 for a month in Jersey City.
Particlarly important in Manzo's talk is a segment near the beginning. In it, he describes flaws even in the case's guilty pleas, which are normally counted as part of Christie's success in the probe. Manzo argues that prosecutors exhibited enormous contempt for the public in using their powers to target selectively local politicians and then pressure them into unfair guilty pleas. Channel 51 (Comcast), Jersey City, NJ via YouTube, Defendant Louis Manzo lectures on the Bid Rig III investigation, Louis Manzo, June 2012 at Jersey City Miller Branch Library. Speak NJ Show producer Yvonne Balcer's 30 minute edition of 90-minute presentation. Broadcast on Channel 51 Mondays at 10:30 p.m. and Tuesdays at 9 p.m. (EDT) for one month. "A lot of people pled guilty," Manzo said. "Some people pled guilty to crimes they could not have committed....The FBI and the USAO have an uncomplicated view of Hudson County politicians. To them their are just two types -- the crooked and the dead." This, he said, scores political points with voters statewide, who falsely assume that Justice Department officials are well-motivated.
Most are, of course. But what about the exceptions?
Several of the situations noted above underscore serious problems in accountability. In the case of DiMasi, Silverglate noted the defendant's trial judge, Chief U.S. District Judge Mark L. Wolf of Boston, recommended that the Bureau of Prisons keep the defendant at Ayer, in Massachusetts. Instead, authorities imprisoned him in Lexington, Kentucky, frustrating medical treatment and family visits. As disclosure, I formerly worked as law clerk to the judge two decades ago. But the legal reform work of the Justice Integrity Project is entirely independent of him or any input, aside from what I read in news accounts.
That said, I am inspired by the former prosecutor's national leadership in urging the Justice Department to hold its personnel -- including prosecutors, FBI agents and prison officials -- to high standards of conduct. Wolf, at left, served at the Justice Department as assistant to Attorney General Edward Levy in the 1970s helping establish the Office of Professional Responsibility, and was deputy U.S. attorney in Massachusetts during the beginning of the Reagan Administration.
Nominated by President Reagan to the bench in 1985, Wolf is most famous for presiding over the successful federal prosecution of New England's Mafia leadership in a case initiated more than two decades ago, and then spotting prosecution irregularities. Post-sentencing for most defendants, the judge convened a special investigative hearing resulting in a 600-page judicial finding of prosecution irregularities. This forced more than 20 federal prosecutors and agents to lose their jobs. Also, it prompted federal indictments on murder charges for two former leaders of Boston's FBI agents for their role in coddling murderous informants, including James "Whitey" Bulger, who is himself facing charges involving 19 murders. See my column from last year on the arrest: FBI Confronts Its Demons By Busting Mobster Whitey Bulger,
In the DiMasi case, he was convicted in 2011 of seven of nine charges relating to payments to him and several colleagues from Cognos, Inc., a contractor that obtained some $20 million in state contracts. Corruption by public officials is abhorrent, of course, but the judge doubtless believed he was sentencing the defendant to an appropriate prison term -- not a term of death via denial of medical care.
Silverglate -- who authored in 2009 the landmark book Three Felonies a Day: How the Feds Target the Innocent -- wrote of the DiMasi case this week:
America was outraged when it learned of abuses committed by enlisted personnel at Abu Ghraib. As details of waterboarding and other enhanced forms of interrogation emerged, a vigorous national debate ensued. But when the news broke recently that Salvatore DiMasi, a former Speaker of the Massachusetts House convicted of political corruption and now serving time at a federal prison, was subjected to treatment so Borgia-like, so inhumane as to constitute a form of torture, the community mostly yawned.
There is compelling evidence that DiMasi was subjected to torture-lite in his assignment to a faraway prison in Lexington, Kentucky, there to serve his eight-year sentence, rather than at the nearby federal prison hospital at Fort Devens in Ayer. At the time of DiMasi's September 9, 2011 sentencing, US District Court Chief Judge Mark Wolf recommended to the Federal Bureau of Prisons (FBP) that DiMasi serve his sentence in Ayer. Wolf expressed concern about DiMasi's then-diagnosed heart condition and the prospect of forcing his cancer-stricken wife to travel long distances for visits. Yet the distant Kentucky assignment was callously selected by the FBP, a subdivision of the Department of Justice (DOJ).
The final word in this goes to Brendan Sullivan, who is based in Washington at the prominent firm Williams and Connolly. While working at a business trade group in 2008, I obtained Stevens' presence in giving a featured speech at an industry seminar on homeland security, and I also contributed to his Democratic challenger, now-Sen. Mark Begich. Nonetheless, I was at the forefront in arguing upon my return to journalism that Stevens was the victim not simply of prosecution misconduct, but a political prosecution to help authorities obtain a highp-profile Republican scalp in case the Democrat Barack Obama won the 2008 election, as he did.
Sullivan provides some praise for the DOJ's 672-page internal discipline report in the Stevens case, released in May. Sullivan wrote, for example, that Attorney Gen. Eric Holder "deserves credit for recognizing the extent of the prosecutors’ misconduct and seeking an immediate dismissal."
But Sullivan faulted the DOJ for concluding in its internal report in May that some prosecutors engaged in “reckless professional misconduct.” Sullivan said, "This new term in the law appears to be an effort to characterize wrongdoing of a lesser grade than “intentional.” Sullivan went on to write this week:
The department’s actions in this matter have fallen too far short. The underlying misconduct represents a shameful chapter in the Justice Department’s history. But the department’s failure to punish wrongdoers makes the scandal worse, and the failure makes a mockery of the attorney general’s effort to establish a standard of propriety that the goal of prosecutors is to do justice, not to win at all costs.
The department has said that such misconduct happens only rarely. But most times the defense does not find out when prosecutors hold back exculpatory evidence. The Innocence Project has shown in recent years that there is widespread injustice in our system and many wrongful convictions. It is hard to catch a wrongdoer prosecutor. When we do, the punishment must fit the crime.
The Justice Department’s failure to adequately punish is unbecoming to the department and unfair to the thousands of honest prosecutors who do follow the law. If we don’t learn from these mistakes, we are doomed to repeat this miscarriage of justice. And if this can happen to a U.S. senator in a Washington, D.C., courtroom, it can happen to anyone, anywhere in America.
:: photo courtesy of miss_millions via Creative Commons license ::
Andrew Kreig is a Washington-based non-profit executive, attorney and investigative reporter who directs the non-partisan Justice Integrity Project, a legal reform group.