Jurors Beware: prosecutors routinely compromise the truth-seeking process of our criminal justice system by introducing misleading and perjurious testimony

Courthouses are usually adorned with a statue of a blindfolded woman holding a set of scales which is supposed to represent that justice is blind, meaning that the law should be applied fairly and evenly to the competing parties and claims in each case. The function of State and Federal prosecutors is not merely to prosecute crimes, but also to make certain in each and every case that the truth is honored to the fullest extent possible during the course of a criminal prosecution.   However, in reality, an alarming number of prosecutors in our country believe by virtue of their education and high-powered positions that they are something of a divine, elite class of people in our society, and as a result, systematically impose their will over the interests of justice.[1] Government prosecutors are often self-promoters in a good-ol'-boy network with an ingrained us-versus-them mentality.  And whether inspired by malice or excess of zeal, it is no secret that "prosecutors repeatedly have violated [their] duty in courtrooms across the nation… [and those] abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions."  (Quoting Brad Heath & amp; Kevin McCoy, "Prosecutors' conduct can tip the scales," USA TODAY, 11A (Sept. 23, 2010)). 
A renown criminal defense attorney and Harvard Law School professor testified before the House Judiciary Committee that "[o]n the basis of [his] academic and professional experience no felony is committed more frequently in this country than the genre of perjury and false testimony."  And as acknowledged by courts and former prosecutors across our country, prosecutors know full-on they are effectively beyond any meaningful judicial or political review for their insidious practice of serving-up misleading and/or perjurious witness testimony.  For those that understand the justice system, the consequence of this jaw-dropping, despicable phenomena, is that innocent people are convicted every day in our country as a result of prosecutors playing God.[2]
One of the writers for this blog was on trial back in 1984 and facing 40 years in state prison.  A combined total of approximately 30 to 40 witnesses testified (for both sides) over the course of a 3-day jury trial.  During a court recess, two prosecutors believed they were alone in the men's room as they secretly confessed: "whatever side has the best liars will win this case."  Fortunately, a jury of good citizens in Southeast Wisconsin saw right through the prosecution's "liars" and eventually found the defendant not guilty. 
State and federal prosecutors present witnesses before the courts who are allowed, if not encouraged, to lie under oath.  Before taking the stand at trial, Government witnesses are not instructed to testify truthfully.  Instead, prosecutors direct them to "stay consistent" with their previous testimony to the grand jury and their interviews with law enforcement.  A cooperating government witness in a high-profile federal racketeering trial summed up the mindset of the typical prosecution witness. During cross-examination, this informer for the government admitted that the concept of truth meant: 

"If the government said a frog was an elephant, it was an elephant."[3]

See Barry Tarlow, "Perjuring informers brought to the bar," RICO Report, THE CHAMPION at 35 (July, 2002)(emphasis supplied). 
When prosecutors knowingly sit quietly by while a witness they called lies on the stand, is at least the equivalent to a person standing beside you while your home is engulfed in flames that: (1) knows who started the fire; and (2) has the tools and ability to put it out, but chooses to stay silent and do nothing. This author has personally observed, on several occasions, prosecutors remaining silent (some even smiling) to what everyone else in the courtroom recognizes as outright perjury. Yet more egregious and truly conscience shocking, while complicit in perjury (as well as other crimes) the duplicitous prosecutor goes unpunished on a daily basis across our country.
In the end, jurors must summon the courage to challenge those in the government who put prosecutorial zeal and entitlement over truth, or who would put law enforcement interests over the interests of justice.   

[1] One example of their elite mindset, a federal prosecutor in Milwaukee, Wisconsin, commenced a "cavalier" discussion with a grand jury about his view of the laws in our country: 
"Federal law, in order to be a federal crime and to have a crime prosecuted in federal court as opposed to state court, there has to be what is kind of a stupid word, but you know lawyers; they have to come up with stupid words to make themselves look important. And since Congress, of course, is made of primarily lawyers, all our laws are written stupidly, and no one can understand them but lawyers, and that keeps lawyers employed."  
Quoting United States v. Van Engel, 809 F. Supp. 1360, 1365 (E.D.Wis. 1992).  

[2] See Sidney Powell, "Licensed to Lie: Exposing Corruption in the Department of Justice," 38  (2014)(Brown Books Publishing Group)("As a former assistant U.S. attorney of ten years, who served in the Department of Justice and taught there frequently, [Ms. Powell] knew how prosecutors were supposed to proceed. Doing the job right required a strong sense of honor, integrity, objectivity, and fairness. A federal prosecutor has immense, unbridled power along a broad spectrum of discretion. In the hands of the wrong people, the damage that power can cause is beyond measure. A prosecutor does play God."); see also Limone v. United States, 497 F. Supp. 2d 143, 189- 192 (D.Mass. 2007)(During a 30-year cover-up, FBI agents' "imaginative direction and professional ingenuity," in developing a professional assassin's perjury in high-profile murder trial, "was known to, supported by, encouraged and facilitated by the FBI hierarchy all the way to the FBI Director.").  

[3] Based on his cooperation, this fable-spinning deal-maker cut a sweetheart deal with prosecutors which enabled him to keep a $5 million real estate development, his home worth $2 million, and hundreds of thousands (if not millions) of dollars in foreign bank accounts. In the end, the jurors selected in this case from rural Nevada "were no dupes." At the end of a six-week trial the jurors fully exonerated the defendant on all charges after only four hours of deliberations. When interviewed after the case, the foreperson said that in several straw polls, no juror voted to find the defendant guilty on a single count. (Excerpted from "Perjuring informers brought to the bar," at 35).

Jury Nullification.

JURY NULLIFICATION: what prosecutors and judges don't want the public and prospective or current jurors to know.

When a citizen of our country is charged with a crime by federal or state prosecutors, there is a crucial check standing between the accused and the full might of the government along with the pitiless, inherent imbalance of power in criminal proceedings in general: the jury.  Trial by jury is seen as the truth-seeking process to determine guilt or innocence.  The criminal justice system, though, is stocked with former prosecutors now in judicial positions, along with highly technical rules of evidence that most jurors couldn't possibly comprehend. Taken together with the reality that most defendants lack the resources to battle the government on equal ground, which often prevents a defendant from presenting a viable defense, a jury of one's peers is the last safeguard between the defendant and a tyrannical government.
Judges instruct juries before they deliberate that they have a duty to follow the law as instructed by the court­—this, of course, is misleading—and furthermore omits the jury's power to nullify which has been characterized as an aspect of the jury's role in representing the community, a check on overbroad, unjust, or improperly applied laws, and a necessary mechanism for civil disobedience.  During the course of a trial, prosecutors and judges strive to conceal that "[w]hile juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so."  Quoting United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996); see also United States v, Carr, 424 F.3d 213, 219-220 (2d Cir. 2005)("Nothing in our case law begins to suggest that the court cannot also tell the jury affirmatively that it has a duty to follow the law, even though it may in fact have the power not to.")(emphasis added).

The common law jury has the absolute power to nullify, that is, act as judge of the law and the facts and render a verdict based on what it thinks is right.  "Jury nullification" is defined as:
"A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness."
Quoting Black's Law Dictionary, 989 (10th ed 2014).  Some examples of a jury's use of nullification may (1) result from a belief that the conduct at issue should not be criminalized, or, under the circumstances, should be legally defensible; (2) that the prosecutor's actions in investigating the defendant were excessive or outrageous; (3) that the law was extended or misapplied against this defendant because of his membership or association with a group continually harassed and targeted by over-zealous law enforcement; (4) that the crime victim(s) were in actuality the true instigators, or unbelieving; (5) that the defendant's conspirators who gained immunity to testify deserved to be prosecuted instead; (6) that the defendant's political goals or safe-guarding himself (and/or his friends and family) in violating the law are sympathetic or, even if not, were pursued by him with admirable integrity; and (7) that a guilty verdict will create racial strife more disturbing to the rule of law than an undeserved acquittal.
Jury nullification is also a consequence of "the great flood of exonerations" and "glaring truth that some prosecutors cheat and even break the law. It has been proved, repeatedly, that prosecutors across the U.S. have (1) concealed evidence that would benefit the accused; (2) fabricated evidence that would convict the accused; (3) made false statements to judges, juries and defense attorneys; (4) offered perjured testimony; (5) cut sleazy deals with jailhouse informants who will testify to anything in return for leniency; (6) employed junk-science 'experts' who mislead jurors; and (7) intimidated witness." Quoting John Grisham, THE WALL STREET JOURNAL, Consequences for Unethical Prosecutors, A16 August 13, 2018.

Juries have a right to send out questions during their deliberations to a trial judge requesting clarification concerning "the law on jury nullification." See e.g., United States v. Sepulveda, 15 F.3d 1161, 1189-1190 (1st Cir. 1993). In United States v. Bunchan, 626 F.3d 29, 33 (1st Cir. 2010), the trial judge said to the jury:
"So, Ladies and Gentleman, let's turn to how you go about your business. As I told you, you don't have to follow my instructions anymore; in fact, that's the critical part of this. We expect you to, but, then, we send you into a room, we close the door, and we can't tell whether or not you're doing what we ask you to do."
(Id.). In the end, courts have long recognized the undisputed power of the jury "to set an accused free for any reason or for no reason," see supra, 15 F.3d 1190, even if its verdict is contrary to the law as given by the judge and contrary to the evidence.  If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justifies the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by their decision.

Washington Post article about Outlaws member Grasshopper 1%er

Twenty-one years into his nearly 50-year sentence, the graying man steps inside his stark cell in the largest federal prison complex in America. He wears special medical boots because of a foot condition that makes walking feel as if he's "stepping on a needle." He has undergone tests for a suspected heart condition and sometimes experiences vertigo.

"I get dizzy sometimes when I'm walking," says the 63-year-old inmate, Bruce Harrison. "One time, I just couldn't get up."

In 1994, Harrison and other members of the motorcycle group he belonged to were caught up in a drug sting by undercover federal agents, who asked them to move huge volumes of cocaine and marijuana. After taking the job, making several runs and each collecting $1,000, Harrison and the others were arrested and later convicted. When their sentences were handed down, however, jurors objected.

"I am sincerely disheartened by the fact that these defendants, who participated in the staged off-loads and transports . . . are looking at life in prison or decades at best," said one of several who wrote letters to the judge and prosecutor.

In recent years, federal sentencing guidelines have been revised, resulting in less severe prison terms for low-level drug offenders. But Harrison, a decorated Vietnam War veteran, remains one of tens of thousands of inmates who were convicted in the "war on drugs" of the 1980s and 1990s and who are still behind bars.

Harrison's crammed cell at the Federal Correctional Complex Coleman in Florida near Orlando is devoid of the clutter of life on the outside. The space he shares with another inmate has only a sink, a toilet, a bunk bed with cots, a steel cabinet, two plastic gray chairs, a desk and a bulletin board with a postcard of a Florida waterspout.

From a tiny window, he can see Spanish moss draped over trees in the distance.

Forty-five years ago, Harrison served with the Marines in Vietnam. A machine gunner, he was shot twice and was awarded two Purple Hearts. When he came back, he felt as though he had nowhere to turn. He later joined a motorcycle group known as the Outlaws.

Today, prisoners age 50 and older represent the fastest-growing population in federal correctional facilities.

Harrison was approached by an undercover agent who was part of a law enforcement team trying to bring down the group, which had been suspected of illegal activity. He and fellow members of the club were offered a kilogram of cocaine to offload and transport drugs. He declined, saying none of them wanted to be paid in drugs.

"I didn't want drugs, because I really wouldn't have known what to do with them," Harrison said in an interview. "We didn't sell them."

But Harrison and the others took the job because the agents offered cash, and they needed the money. Over a period of several months, they would move what they believed to be real drugs more than 1,400 kilos of cocaine and about 3,200 pounds of marijuana.

Harrison carried a gun for protection during two of the offloads. He didn't use it, but after authorities arrested him and fellow members of his group, he was charged with possessing a firearm while committing a drug offense.

His 1995 trial in Tampa lasted four months. His lawyer at the time argued that "this was a government operation from beginning to end. . . . Everything was orchestrated by the government. . . . He was not a leader. The only leaders in this case, the only organizers in this case was the United States government."

The jury, nonetheless, found Harrison and the others guilty of transporting the drugs.

Harrison was sentenced to roughly 24 years for possessing cocaine and marijuana with the intent to distribute. The conviction on the firearms charge carried a 25-year penalty, meaning he is effectively serving a life sentence.

'I am sincerely disheartened'

"There's no doubt that that's a harsh penalty," said U.S. District Judge Susan C. Bucklew during the sentencing hearing. "But that's what the statute says, and I don't think I have any alternative but to do that."

"I don't have a whole lot of discretion here," she said at another point.

After Harrison and the others were sentenced, several of the jurors expressed shock to learn how long those convicted were to spend behind bars.

"If I would have been given the right to not only judge the facts in this case, but also the law and the actions taken by the government, the prosecutor, local and federal law enforcement officers connected in this case would be in jail and not the defendants," juror Patrick L. McNeil wrote.

Six jurors signed a letter requesting a new trial be ordered, saying that if they had been told by the court that they could have found that the government had entrapped the defendants, they would have found them not guilty.

"Bruce Harrison had never been involved in unloading drugs," said his current lawyer, Tom Dawson. "He didn't arrange for any of these drugs. The government did."

Andrea Strong, a childhood friend of Harrison, said he doesn't claim to have been a saint.

"But, in a compassionate world, this man would not be less than halfway through a sentence for a drug offense that happened 20 years ago," Strong said.. "He would've done his time, paid his debt to society, and be released to his network of supportive family and friends."

Along with tens of thousands of other inmates around the country, Harrison is applying for clemency under the Obama administration's program to release drug offenders who have been in prison for at least 10 years and whose cases meet certain criteria.

"If I got out, I'd go back home and be with my three grandkids and help them out," Harrison said.

Excerpts from "Aging population takes toll on U.S. prisons", by Sari Horwitz, Washington Post; photos by Nikki Kahn.