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Justice in The Land of the Free

What happened to the rights of the accused in America, wonders CNN reporter Fareed Zakaria in his April 30th, 2015 column ( Legal scholars throughout the world marvel that with “nearly 5 % of the world’s population, the United States has nearly 25% of the world’s prisoners and 50% of the world’s lawyers,” according to Zakaria, quoting former Canadian newspaper publisher Conrad Black’s research. “The United States locks up more people every year than Stalin held in his gulags at the height of his power*”, is another frequent observation among those who have studied the statistics.

According to Black, “the high U. S. conviction rate is not because our prosecutors are so much better, it is because of the plea bargain, a system of bullying and intimidation by government lawyers for which they ‘would be disbarred in most other serious countries, [and which] enables prosecutors to threaten everyone around the target with indictment if they don’t miraculously recall, under careful government coaching, inculpatory evidence.”                

And Conrad Black should know. Black’s newspaper publishing empire once controlled a third of the world’s English language newspapers. Following a U. S. investor initiated investigation he served 37 months in a United States Federal Prison for alleged Fraud and Obstruction of Justice. Most charges were overturned on subsequent appeals and he was released on May 4, 2012. Black returned to Canada upon his release and is barred from returning to the States for 30 years, though one doubts he would ever care to return.

Zakaria also quotes U.S. District Judge Jed Rakoff’s essay for the New York Review of Books, who “wrote that because of the plea bargain, ‘the criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes. There is, more often than not, no ‘day in court,’ no trial, no rights for the accused. The prosecutor almost always gets what he wants. When I served on a grand jury, I quickly realized that it was a rubber stamp for the prosecution, the opposite of its original intent.’”

Conrad Black’s portrayal of the tactics employed by Federal Prosecutors is eerily similar to those we have seen employed against Sam Zherka. In an effort to build a case against our Publisher, at least one of his business associates involved in the case was threatened with incarceration in a facility in Colorado, if convicted, where there is 23 hour lockdown,” a euphemism for “SuperMax,” (again, we are talking about alleged white collar crimes here), by prosecutor U. S. Attorney Jacobson, while others stood there and did nothing. Mr. Zherka is being held without bail, as Conrad Black was, on “garden variety white collar crime” charges, though he has not yet been convicted of a crime. It is difficult for Mr. Zherka to assist in his own defense from Manhattan Correctional, where even in the attorney’s room, there is no expectation of privacy.

As we celebrate Memorial Day, ask yourself if the men and women who died for our country gave their lives so others can be compelled by the government to testify against someone untruthfully to get a better deal for themselves? They did not and the government’s behavior in too many cases should outrage us all.

* Adam Gopnik, The Caging of America, The New Yorker, Jan. 30, 2012