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What First Amendment?

Reflections From Behind the Wall

Anatomy of a FrameUp

Chuck TurnerThis is the fifth of eight installments describing my two and a half year struggle with the Justice Department that led to my being a convicted felon at the USP Hazelton work camp in the mountains of West Virginia, in the fourth month of my 36 month sentence.

On the afternoon of December 16, 2008, a group of supporters and I were sitting in my office at City Hall, flush with the excitement of having organized a spirited rally at City Hall. Steve Kirshbaum, an organizer and leader in the International Action Center (IAC), had asked IAC's President Ramsey Clark, former Attorney General under President Lyndon Johnson, to come to Boston to give support. We thought Ramsey's appearance in Boston would increase the visibility and strengthen our campaign to counter the media stories, designed to convict me in the court of public opinion. 

We all were feeling the high that comes from seeing your plans work well. There had been morning stories in both daily papers and a strong turnout at the afternoon rally. The media was there in full strength so we expected to have strong evening coverage. Even if there was negative spin, they couldn't hide the fact that Ramsey had come to Boston to support me. Personally, having a world renowned human rights fighter come to Boston, praise my work, and assert his faith in my innocence was a needed emotional uplift. While I thought we were waging a good fight and the media was a little less cutting than at the time of my arrest, the wear and tear of hearing and reading negative descriptions of me as an alleged criminal were emotionally draining, to say the least. 

Terri and the family were strong in their support, but I knew that they were feeling the emotional pressure as much if not more than I. In fact, seeing the effect of the stress on Terri, my family, and friends was the most difficult part of being targeted. I felt it was more difficult for them to hear me described so negatively than it was for me. I was used to it. Even though they had heard negative discussion of me during my years on the Council, this barrage was more intense and continuous. So having Ramsey standing beside me, praising my work, and committing himself to be part of our fight was emotionally gratifying and would give everybody a needed uplift, particularly Terri and the family. 

As the conversation turned to what challenges the next few weeks would bring, my friend and investigator for Barry Wilson, lead lawyer in my legal team, Kazi Toure foreshadowed a cloud that was to engulf all of us for the next eleven months when he said Sullivan's assistant, John McNeil had called to say that he wanted me to sign a "protective order". "What's that", I asked and Kazi explained that it was an order that would require that once we received the discovery (their evidence against me), we couldn't talk publicly about anything in it. 

My immediate response was "Why would I sign that. It's a gag order. They see the campaign in the court of public opinion is working and they want to shut it down." The thoughts were coming faster than I could get them out. What about the pictures on the day of my arrest? What about the release of the conversation between Feeney and the Senator designed to remove the cloud of suspicion hanging over her based on her involvement in getting the license for Wilburn? If I signed the order, why should I have any faith that they wouldn't continue to leak evidence whenever they wanted? Everybody agreed that it didn't make sense so Kazi said he would call Barry who was on vacation to let him know I wouldn't sign it.

A few days later, Kazi and I sat down to talk about life, organizing, and the struggle. During the conversation that ranged far and wide, Kazi said that he had talked to Barry who said that he understood my sentiments and concerns. At the same time, he said that I needed to recognize that since protective orders were used in many cases, particularly high profile cases, it might be difficult to avoid signing. Also, conversations with the Senator's lawyer indicated that she had already signed it in order to expedite receipt of the discovery. 

I knew that I was not making the situation easy for Barry and his need for the evidence but still I felt that I couldn't consent to signing a gag order. I knew that the only evidence they had were the pictures and three recordings that had been referenced in the affidavit issued on the day of my arrest. So there were no surprises that we should worry about discovering.  

Also, I had to talk about the case and my innocence during the upcoming campaign for my Council seat. I was afraid that Sullivan would try to tie what I said into their "evidence" and I would wind up sitting in jail waiting for the trial and trying to figure out how to pay for the forfeited $50,000 bond. In addition, given what my ancestors had endured with the hope of freedom for future generations, what would they say at the thought that I had given up my First Amendment rights for fear of going to jail.  

Terri supported my campaign in the court of public opinion but was very concerned every time I talked with the media. Her fear was that Sullivan would find a way to use what I said against me. Fortunately, she agreed that signing the protective order would be a major mistake. Without her support, the emotional strain around this issue would have been unbearable given my lawyers' tension at the thought that they would not receive the discovery until 21 days before the trial. With Terri's support, I stood firm in my opposition to signing. We would wait for Sullivan's next move.  

On January 5, 2009, Sullivan's and McNeil's  next move became clear when they filed a motion with Judge Magistrate Hillman requesting that he require that I sign the "gag" order in order to receive any of the evidence that they had gathered. Even some of the reporters and columnists who had been attacking me began to question how Sullivan could be requesting such a requirement given the pictures that he had released on the day of my arrest.  Our legal response was to challenge the motion and ask that Judge Magistrate Hillman not approve it. However, two months later he signed the motion, creating a court order saying that I had to sign the protective order or my lawyers would have to wait until 21 days before the trial to receive any of the discovery. 

A few days later Kazi said that McNeil couldn't believe it, when Barry told him that I was not going to sign the order and that we would wait to receive the discovery.  Both my lawyers, Barry Wilson and John Pavlos, were very concerned about their ability to provide the type of defense needed if put under that constraint but honored their commitment to follow my lead in terms of handling the trial from a political perspective. 

At that point, I thought that the issue was resolved and that there was nothing to do but wait for the trial date to be set so we would know when we would receive the evidence. Again, my thinking was that the government's evidence was so weak that while the wait was a tremendous constraint, my legal team could still mount a winning defense. While they were not necessarily as convinced as I, they continued to accept my position. From time to time Kazi would remind me of what I was giving up in terms of their ability to win the case.  While I certainly did not want to lose and go to jail, I reminded Kazi that my belief was that life's purpose is to test our ability to live by principle. I felt I had no choice but to refuse to sign. 

Much to my surprise, Sullivan and McNeil had one last move to try to force me to sign the order. Approximately, a month after I refused to sign, Kazi called to say that a new motion had been filed. In this motion they requested that Judge Magistrate Hillman require that I take the evidence without having to sign the order. Had the First Amendment been repealed, I asked myself. How can Sullivan and McNeil ask a judge to require that I give up my right to speak freely? Even though my lawyers had indicated that I was willing to wait until three weeks before the trial to get the evidence, they now were going to force me to take it despite my opposition. This was another one of those moments when the only thing I could think to say was "They have no shame". 

My legal team thought that I had no alternative once the motion was approved. I would have to accept the evidence or be in contempt of court. I had a different view. Since a date had not been set for trial, from my perspective, we were still in the court of public opinion phase of the process. To me, the key question was whether a judge in this phase would find a City Councilor in contempt of court for refusing to give up his First Amendment rights. My answer was no he wouldn't. So when Judge Magistrate Hillman approved the order, I told my team to let McNeil know that I had instructed them to send the evidence back unopened if McNeil sent it and to file a motion to have Hillman's position on the motion reconsidered by the judge who would preside at the trial, Judge Woodlock. 

Judge Magistrate Hillman didn't find me in contempt and Judge Woodlock agreed to have a hearing regarding reconsideration of the motion. At the hearing, he said that he found it reasonable that a protective order be issued in order to assure that the trial was tried in his court not in the media. In addition, he said that though Judge Magistrate Hillman's order said that my legal team could receive the evidence 21 days before the trial, he thought that if given the evidence that soon I might release information before the trial and "taint" the process, "poison the well."

When Barry began to question the overriding of an order given by another judge, Judge Woodlock said, "....You asked for a reconsideration. It's sometimes the case that one should be careful about what one asks for". He went on to say that he hadn't made a final decision but was leaning toward what he called "the old standards" where the defendant received the evidence after the prosecution had conducted a direct examination of a witness. 

Barry continuing to argue the appropriateness of the 21 days said, "Now if we go back to the old rules, the old rules are also going to mean that we're going to have to stop and break because even in the old rules you've got some time--".
Judge Woodlock shot back, "They sometimes do, they sometimes don't. but we'll see how things work out, if it comes to that; but this is a circumstance in which your client hold the keys to the shackles that he describes."
 
While Judge Woodlock kept saying that he had not made a final decision, it was clear to me that he was prepared to make the situation as difficult as it needed to be in order to force me to sign the protective order. Obviously, if we couldn't get the information until after the prosecution examined each witness and have little to no time to examine it, a defense would be impossible and Judge Woodlock would say that it was my decision that had created the difficulty not his.   

Then, as if to balance the situation, he said he shared my concern about the level of publicity given my arrest as well as whether it was necessary to arrest me rather than issue a complaint and have me appear in court. He asked all the parties involved in the decisions to give affidavits explaining their reasoning both in terms of the arrest as well as the release of the pictures. However, after he received them, he chose not to make public the affidavits by the key officials and said nothing more about the government's actions. 

After the hearing, I felt that Judge Woodlock had put me in a box. I could continue to refuse the discovery. However, while he said at the hearing that he had not made a final decision, it seemed likely we would not receive it 21 days before the trial to use to prepare a defense. In all probability, we would receive the portions relevant to the witnesses the government put on the stand after each witness had been examined by the prosecution, making defense virtually impossible.  

Therefore, I relented and informed Barry that after the election I would accept the discovery under the terms offered. My reasoning was that once I won the election, my only objections to signing the order would be the principle of not compromising my First Amendment rights and the possibility that the US Attorney's office would use the situation to release again  some of the discovery. However, I felt that the publicity around the issue and the involvement of the presiding judge provided protection. Yes, I was compromising my First Amendment rights, but I thought my ancestors would understand given my fight to resist signing the order.

The day after my 20% margin of victory in the November Council election, I released a statement to the press saying that I viewed my election victory as a victory in the court of public opinion and that it was now time for me to concentrate on a victory in federal court. To strengthen the likelihood of that victory, I had ordered my lawyers to accept the evidence in order to prepare a defense for the trial that was due to begin in March, 2010. Thus approximately a year after my arrest, my lawyers began to receive the evidence the prosecution would use to try to convict me of a crime I didn't commit. 

B) Analysis:

1) Waging a Political Defense: 

Let me be clear before I begin this piece. I am not a lawyer. I have not worked with lawyers extensively or been involved in numerous legal cases. As an activist, I have been supportive of some who have been on trial but usually as an outsider not as an active participant in the defense. I begin with this disclaimer so that you will understand that what I am saying is from the perspective of a legal novice. That said let me begin. 

When the police came to arrest me at my City Hall office, I laughed. Clearly, they were serious and I was about to begin the hardest and most serious fight of my life. Yet, the idea that at age 68, I was being arrested for a crime I didn't commit was so ridiculous the only reasonable reaction was to laugh. 

I didn't even know what my crime was but I did know that the motivation to charge me with a crime had to be political. When Terri called to tell me the police had been to our house and were on their way to arrest me, I said "Well its finally happened". Terri and I both laughed because she had said for years that my political work would either get me killed or arrested. Better to be arrested than killed I thought and laughed again.  

What I didn't realize as I went through the pressures of my first day as an accused felon was that the hardest part of the next two years would be the effort to wage a political defense. By political defense, I mean a defense that is constantly and continuously calling the public's attention to the injustice that is being perpetrated. When you are accused of a crime that you didn't commit because of the political objectives of your accusers, you have two alternatives. You can leave your defense up to your lawyers. Allow them to go through the discovery and develop a strategy to persuade the jury of your innocence. 

The other alternative is to attempt to educate the public inside and outside of court. before and during the trial. It a dangerous strategy because as my lawyers constantly warned me, the opposition will listen to what you say to understand the type of arguments that your lawyers will make in court so that they can be fully prepared to counteract your defense when the trial finally takes place. The problem is that you don't know how long it will be before you go to court. If you remain silent during this period, you allow the opposition to implant the idea of your guilt in the public's mind. The result is that even if your lawyers are able to convince a jury of your innocence, you have not enabled the public to grow in its understanding of how injustice in the system works in  your case or in general. 

I was fortunate that I had two lawyers, Barry Wilson and John Pavlos, who understood the politics of power as well as the injustice that undergirds the legal system in which they practice. They understood how the system was weighted against their clients. They appreciated that if the defense allow the prosecutors to be in control they are in fact colluding with the injustices that are being perpetrated. Yet, they are lawyers and looking for the balance between the the politics of the situation and the legal framework. 

As I related in installment four, there was a continuous debate that went on with my lawyers and I regarding the balance. They appreciated my perspective; they supported my politics; yet they were the ones who not only had to handle the day to day details of working within the legal structure to prepare for trial but also to develop a defense that could bring victory. Just as the prosecutors are focused on winning, every defense lawyer is intent on winning. That is their job. That is their responsibility. If they are not committed to winning, they should not be defense lawyers. Therefore, they want to have a client who will accept their views on how to win.

Frankly, I realized that at times if not continuously in the eyes of my lawyers, I was THE CLIENT FROM HELL. The core problem was that from my perspective, when you wage a political defense, you must take risks that may weaken the chances of winning in order both to educate the public as well as maintain your principles. Probably, the clearest example of this tension between my lawyers and myself was the issue of the protective order. 

Protective orders are a relatively standard part of the legal process, particularly in high profile cases. They are viewed by judges as the tool to prevent the cases from being tried in the media as opposed to the courts. If you don't sign them, the judges have the power to keep all the evidence from your lawyers until just before the beginning of the trial or even later.. Without the evidence, obviously the construction of a defense is virtually impossible. Therefore, while my lawyers understood why I was unwilling to sign the order given my political campaign, given the unscrupulous nature of the US Attorney and his assistant, and given my belief in my freedom of speech, they still felt that I was making it much more difficult for them to do their job which is to build a winning defense based on the evidence. 

Nonetheless, they were willing to live with the restriction that they wait until 21 days before the trial to receive the evidence. They were not pleased with that situation, but they appreciated my politics and therefore were willing to continue as my lawyers in a situation where other lawyers might have walked away. However, Judge Woodlock increased the level of difficulty 100%.  At a hearing in July 2009, eight months after my arrest he indicated that he was leaning toward using the old standard rather than the 21 days recommended by the judge magistrate. 

The old standard was one where the defense did not receive the evidence regarding a particular witness until after the prosecution had finished their direct examination of the witness. Obviously, Judge Woodlock was trying to force me to sign the protective order by creating a situation where if I didn't sign the order, my lawyers would have no chance to examine the evidence before the trial began. Thus I submitted to the reality that the only way to avoid losing the trial and avoiding jail was to sign the order. However, I exercised my legal prerogative and waited until I had won the election.  

The day after the election, I announced that I would sign the order. A few weeks later, over a year after my arrest, my lawyers were able to examine the evidence and realized that I was telling the truth when I said there was no evidence against me beyond what was in the FBI's original affidavit. However, there was volumes of information that Sullivan and McNeil hadn't wanted me to talk about like the fact that the innocent businessman who the Senator and I were extorting had been hired by Sullivan almost a year and a half before my arrest and had been paid almost $30,000 to entrap us. 

Unfortunately, however, the debate over the elements of my political defense had to continue. As my lawyers examined the evidence, they reached the conclusion that the prosecution did not have enough evidence to build a credible case. From their perspective, there was no reason for me to take the stand with all the dangers that arise when the defendant testifies. From my perspective, I had to testify. 

At age 59, I had run for office not only to use the office to organize but also to raise the standards of political representation at the City level. Given that objective, how could I now say that I would not take the stand to face my accusers. From the    standpoint of principled politics, I felt that whenever an elected official is accused of betraying h/er public trust, there is a moral responsibility to testify. My lawyers didn't see it that way, but I did, so the debate continued until the day I took the stand.

2) Double Standard: 

The idea of requiring the defense to sign a protective order is reasonable if the objective is to keep both sides from leaking information so that the discussion of the evidence stays within the framework of the court. Its even more reasonable in high profile cases where there is an intense focus by the media. Unfortunately, particularly in high profile cases, there seem to be no ethical standards for the prosecutors' behavior regarding distribution of evidence that are enforced. It seems that invariably in high profile cases, there is a release of evidence by the prosecutors in the early stages. To then put a restriction on the defense when their rights have already been abused is to exercise a double standard that becomes part of the process of prosecutorial terrorism. 

An examination of my case reveals the way this double standard operates. "Photographic evidence of my alleged guilt" was released less than an hour and a half after my arrest. This is a strategic move in a case involving a politician where one of the objectives is to destroy the credibility of the target before there is the opportunity for a defense. Given the vulnerability of politicians, such an early attack can be devastating regardless of the outcome of the case. 

While there were a number of hearings in the spring of 2009 with Judge Magistrate Hillman regarding the protective order, he did not ever deal with the issues my legal team raised regarding the improper use of the evidence by the prosecution. At the July 2, 2009 reconsideration hearing, Judge Woodlock acknowledged the inappropriateness of the early release of the evidence as well as questioned whether there was a need for an arrest. He then ordered that affidavits be written by all parties in the U.S. Attorney's office and the Boston Police Department who were parties to the decision making. 

Unfortunately, that was the last we heard of the issue. The affidavits by low level officials who were not key to the decision making process were made public. The rest were sealed which meant that neither was there a public disclosure of the reasoning of high level officials nor was there any statements from Judge Woodlock regarding misconduct by the prosecutors.  

The reality is that the US Attorneys and their assistants work closely with the judge magistrates and the district judges on a daily basis for years. It is a psychological reality that when you have close on going relationships in work situations, the ability to criticize your colleagues becomes more and more difficult given the perception of the potential effect on those relationships. 

Mark Wolf, Chief Justice, of the Massachusetts federal bench is admired by many for his willingness to stand up and challenge the prosecutors in a way that other judges do not. The question that the public has to examine is how we can eliminate this double standard in terms of the public disclosure of evidence before the trials begin if we do not put controls on the prosecutors' behavior. The ability to maintain just standards from within seems to have been missing in the past, still is missing today, and will be missing in the future unless we take action now. 

Before leaving the issue of protective orders, my case raises the question of who does the protective order protect. In my case, Sullivan and McNeil's frenzy over getting me to sign the protective order before receiving the discovery grew out of their knowledge that once we had the evidence, we would discover that it showed that the Senator and I couldn't have been involved in a conspiracy to extort money from Wilburn because Wilburn, as McNeil admitted on the first day of my trial, had been hired a year before I was arrested to entrap the Senator and I. 

The discovery we waited a year to receive also showed that on June 5, 2007, less than two months before Wilburn gave me enough money to "take your wife out to dinner", he tried, based on orders by his FBI handler to get the Senator to agree to involve me in the entrapment web he was weaving around her but she refused. In addition, the discovery showed that before I volunteered to file a hearing order regarding discrimination in the distribution of liquor licenses on June 22, 2007 in response to the Senator's email on June 19, 2007 to the Council, Wilburn had given the Senator $1500: $500 on June 5, 2007 and another $1000 on June 18th.

At a hearing at the Moakley Court House on June 3, 2010 in front of Judge Woodlock where the Senator changed her plea to guilty, Asst. US Attorney McNeil offered the Court as background for the reason that Wilburn gave the Senator the $1000 on June 18th the following testimony: 

"With respect for Count 3, on or about June 17, 2007, Wilkerson spoke with the cooperating witness on the telephone about her continuing efforts to obtain Dejavu a non-transferable license. She told the cooperating witness that she 'talked to the Mayor' that morning and had also spoken with the Mayor the night before about the license for Dejavu. She told the cooperating witness that she had been informed that the Mayor's assistant could help in obtaining the license to sell beer and wine until a full liquor license freed up. The cooperating witness expressed his appreciation for Wilkerson's efforts and told her 'I want to give you something' I want to see you Monday (June 18th)."

So before the Senator sent her email to the Council asking for help which led to my hearing order, she had secured the Mayor's cooperation in getting the license and had received $1500. Obviously, if we had received the discovery without the protective order, we would have exposed Sullivan's whole rotten scheme to make it look like I had something to do with an operation to get Wilburn a liquor license that was fully underway with the cooperation of the Mayor according to Wilkerson before she even reached out to the Council. 

When she did reach out, she didn't reach out to me as she had been asked by Wilburn on June 5th. She reached out instead by email to the Council as a whole because she wasn't speaking to me at the time because of my opposition to her advocacy for a Northeastern dormitory at the corner of Ruggles and Columbus. 

Why didn't my legal team bring these issues out at the trial to expose the government plot to frame me, you ask? While the conspiracy charge was kept in place for almost two years, it was dropped just before the trial without explanation by Asst US Attorney John McNeil. However, at the Senator's Plea hearing on June 3, 2010 four months before my trial, while dropping the conspiracy charge against the Senator, McNeil asked the judge to keep it in place in my case.

Excerpt from June 3, 2010 Plea Hearing for Senator Wilkerson:

The Court: And with respect to the Conspiracy, the Government's declining to move forward on the Conspiracy with respect only to Ms. Wilkerson?

Mr. McNeil: Only with respect to Ms. Wilkerson. 

The Court: Not with respect to the other alleged coconspirators? 

Mr. McNeil: That's right.

The Court: All right. 

Why, you ask, didn't he drop the conspiracy charge against me on June 3rd? I believe because he wanted to maintain the fiction, the illusion of the conspiracy in the mind of the public up to the last possible moment in order not to expose the lie he and Sullivan had been perpetrating for two years. That's why Sullivan and McNeil had to have a protective order. The purpose was not to protect anyone against my actions. The purpose was to protect the Lie they were perpetrating regarding the conspiracy and my guilt. However, he had to drop it before the trial, otherwise my legal team would have exposed their deceptions to the jury. 

The question that obviously has to be asked is if there was this kind of deception and misconduct around the purpose of the protective order in my case, how often does this kind of deception and misconduct go on in other cases across the country? Let me repeat, if we don't enact laws that allow prosecutors to be prosecuted as well as sued for their misconduct, this kind of injustice will go on and other men and women will be convicted and sit in jail just like me, innocent of the crimes for which they have been framed by prosecutors "gone wild".

C) Action Steps: 

We have stated in previous installments the need for legislation limiting the release of information by prosecutors before trial. We have also suggested that there need to be financial penalties to those releasing as well as those publishing evidence. We need these tools to prevent the prosecutorial terrorism that is practiced in US courts every day. However, while we are waiting for Congress to take the necessary action, we need to have the Justice Department establish watch dogs, inspector generals so to speak, who would have the power to sanction those prosecutors who abuse their power. Without mechanisms to check abuses of power, they are guaranteed to continue. Power corrupts and absolute power corrupts absolutely. 

As a means of generating more political pressure for action to assure prosecutorial fairness, there needs to be research committees as I have mentioned in previous installments. These research committees need to be part of a national structure with units in each state. In the area of protective orders, we need to be assessing how these orders are used and documenting whether they are being used fairly or fraudulently to perpetuate the double standard discussed in my case. We need to have the ability to identify whether the prosecutors are leaking evidence that will poison the well of public opinion against the defendant while preventing the defense attorneys through the use of protective orders from balancing the discussion. 

We need justice within the practices of the criminal justice system. It is clear that justice is missing. It is clear that those in charge of the system are benefitting from the injustices. The number of Americans being put in prisons at all levels has quintupled over the last 36 years rising from less than 500,000 of all races in 1975 at the beginning of the War on Drugs to 2.3 million today with over 1 million black men and women incarcerated. We now have a higher percentage of our population in jail than any other country in the world as well as a higher percentage of minorities in jail . The numbers continue to grow despite the drop in crime rates and the correction officers union is alleged to be the fastest growing union in the country. 

The question I believe is whether the people of this country will continue to believe the propaganda promoted by prosecutors and their allies that the problem is not in the operation of the criminal justice system and its prosecutorial system but in the lack of character of those arrested. It is time for us to decide whether we intend to have our children's children grow up in a fascist state parading as a democracy with the government imprisoning an increasing number of its citizens while targeting for prosecution those who call and fight for justice. Where do you stand? What are you willing to do? If not now, when?  

Next Installment: Three Ring Circus 

 

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