It's not about drugs

 

The administration has moved on from using drugs as the premise for what is happening in our hemisphere. It is not about drugs, certainly not fentanyl, or, perhaps not even about oil, nor Venezuela. It would be a mistake to allow them to move on. Keep their brutish template always in mind.

In the Southern District of Alabama, there have been 27 cases involving 93 defendants prosecuted under the MDLEA. Of those, I have represented 13 defendants. Mobile is one of the 6 or 7 port city districts that prosecutes these cases with DC/DOJ having the overall responsibility for their oversight.

There are two different types of MDLEA cases; the random sea patrol case and those that develop from intelligence. There might very well have been intelligence involved in some of the bombings of the boats. For legitimate reasons we are not privy to them. That serves as no defense to what amounts to murder on the high seas.

See Here

While Rand Paul might sensibly argue that these boats could not reach the United States, that proverbial ship has sailed. The MDLEA is premised on something called extra-jurisdictionality. We have argued these cases on all manner of issues involving the law of piracy, law of the sea, international law, maritime, etc. We have failed.

Only two of my cases had a trajectory linked to the United States (DR to PR). Most of these cases are from the Eastern Pacific area, not the Venezuela/Tobago/Trinidad area. These are small boats in areas where they are a major form of commercial transport. None of my cases involved fentanyl - nor is there any connection with that drug to Venezuela. The largest crew was 6. (The boat that they blew up with 11 members does not fit any profile.)

And Here

Of the two that are from that area one was initiated by the Dutch police who were turned over to the Coast Guard. Of the crews that I've been involved with, two of the defendants are Venezuelan, but the crews are mostly Colombian, Mexican, Dominican, and Ecuadorian.

But the bottom line is that - whether they contain drugs or not - there's really no basis for extending the dubious rationale of the MDLEA to the point that you're blowing up boats without due process and sentencing people to an instantaneous capital punishment, especially since the punishments actually meted out in my cases ranged from 48 to 168 months. (One case was nolle prossed as the defendant, a relative of one of the crew, was just catching a ride to a cancer treatment in Puerto Rico.)

As with sentencing in federal court, they are based on drug amounts and the criminal history of the defendant. Certain amounts carry mandatory minimums, usually 10 years. (Paradoxically, thanks to Trump’s First Step Act, along with something called the “safety valve” some latitude from the draconian guidelines sentences has been given to judges. Sometimes they get the break, sometimes they don't.)

These cases involve defendants akin to their land-based counterparts, the mule. As in cases involving mules, the “safety valve exception” recognizes the injustice of holding them to the same standard as the bosses who, safe at home, have lost little save their cargo. These humans are flotsam, left to pay for the crime.

They are recruited from the most humble and desperate slices of poverty-stricken countries and who in most cases have never been involved in criminality. Almost all of my clients were first-time offenders, fishermen who have been either shanghaied or who intentionally have been drawn in by the large amount of money that has been offered to them. Criminal sentences are based on a special kind of extortion - cooperate we'll cut your losses. These people are not in a position to cooperate. 

The sort of melodramas that are generally far removed from our shores have become somewhat of a constant by virtue of the MDLEA; unfortunates fished out of the sea, caught in the web of those who would take advantage of their situation and those who would protect this country from the scourge of drugs. Many of them fishermen making a barely sustaining existence, they would come to accept the prospect of a huge reward for navigating a maritime vessel laden with drugs only to find themselves in the nightmare of a prosecution in a foreign land. 

Defendant A

Defendant A is a native of El Salvador and had been living in Guatemala. Defendant worked with his fisherman father from the age of seven. His father was killed by unknown persons who stole his boat engine. "I couldn't study anymore because it was then my turn to step up, to work, to help support my little siblings, and my mother." Defendant A moved to Buenaventura, Colombia and fished there to continue supporting his mother and brothers.

In 2007, his family was displaced by paramilitaries in his neighborhood. Forced to pay a portion of his

earnings as a fisherman, he moved hoping to avoid the conflict. Sometime thereafter, he was employed as a deckhand on a coastal trader until the COVID pandemic. He was laid off. "life was hard." He remarked and then added, "It is difficult to see your children go hungry."

The crime with which he is charged originated in Colombia. His involvement was primarily the result of circumstance. While in Colombia to purchase fish, he was the victim of an extortion attempt by Colombian police. When he rebuffed their demands for money, they obliterated his passport. Complaints to the Colombian immigration authorities led nowhere. Set loose without a manner in which to return to his country, his meanderings ultimately resulted in his being held against his wishes in an area controlled by drug traffickers. While most of the individuals ensnared in these ventures are offered money, his inducement was a return voyage to his homeland.

His debrief by federal agents from the United States resulted in another debrief by agents from both US DEA and their Colombian counterparts who traveled here for that express purpose. As self-serving as this sounds, it is apparently another technique used by malevolent actors to obtain the cooperation of mules. During a HSI debrief, in a different MDLEA case, a defendant gave a similar recounting; induced to travel to Colombia to transport fuel, he was held for 5 months in a compound, giving a complete accounting of the areas where he was held as well as the names of the individuals that held him.

Defendant B

The defendant is a 48-year-old, Black, Hispanic Colombian male. He suffered a heart attack in October 2021, and was hospitalized for three days at an unknown facility in Columbia. He continues to suffer residual issues from his heart attack. He was reared by both of his parents in the same household until his mother’s death when he was 15 years old. While his mother was sick with cancer his father fell from a tree and became disabled, and it became his responsibility to provide full-time care for his mother until her death.

Minimally educated, he has a vocationally-limiting medical history (heart attack) and a work history limited to fishing. He has been working since the age of eight, most recently sporadically earning between 15,000 and 30,000 Columbian pesos “weekly.” The USD to Colombian peso exchange rate is 1 USD to 4,732.1100 pesos, yielding a $3 to 6 per week “salary”.

Like him, his co-defendant gave what’s called a debrief. He told the agents that he had been recruited by a man who once owned a business selling and buying fish and ice to fishermen in the area. He had not seen this individual for approximately ten years. The co-defendant had been working odd jobs for a little over two years after he was laid off from his job as a mariner on a coastal trader, a casualty of the COVID-19 pandemic. Desperate to provide financial support to his family, he made the fateful decision to transport drugs. 

The amount promised was significant, and given his circumstances, lifesaving. He was paid an advance of 15,000 to make the trip and promised the other half if the trip succeeded. This was his first and only involvement with such a scheme. He  was unaware of the amount or type of drugs he would have to transport, the value of the contraband he was engaged to transport.

Defendant C

A native of Puerto Vallarta, Mexico, The defendant’s father, 89, and mother, 76, were supported financially by the defendant prior to his arrest. The defendant reported having five brothers and six sisters, all of whom live in Mexico.

The defendant reported completing the 6th grade in Mexico prior to withdrawing, working since age 8 to help provide for his family financially. He earns

earning $300 weekly while working as a fisherman in Mexico.

Defendant D

Colombian, 55yo, married, 3 children:

His father taught him how to fish, how to work, and how to provide for his family, because he was unable to go to school for financial reasons. The defendant stated that he cannot read or write. The defendant stated that he maintains a close relationship with his family, and that they assist in caring for each other. He has worked as a fisherman for his entire adult life. 

He earns roughly $56 U.S. dollars per month. The defendant reports no other periods of employment within the past ten years.

Defendant E

Attended school in Colombia through the 5th grade. His family lived in a rural area and that he stopped attending school to begin working and assist his family.

Employed between 2016 and 2020 driving trucks for a company in Colombia, he fled to Venezuela. He moved to the indigenous community where he met his girlfriend and  began working as a farmer, raising hens, and transporting people with an old truck belonging to the indigenous community. 

He earned between $300 and $400 per month.

Defendant F

Born in Manabi, Puerto Lopez, Ecuador. Family resides in Ecuador. The defendant’s father, age 60, is an ice cream merchant. The defendant’s mother, age 62, is disabled. From 2007 to 2021, the defendant was self-employed as a fisherman. He had no other periods of employment within the past ten years.

Was to be paid $10,000 for transporting the drugs from Ecuador to somewhere off the coast of Mexico and he was given $1,000 initially and was to be given the remainder after delivery.  He and the other two people on the boat received a phone that received text messages of GPS coordinates to a boat with the drugs floating off the coast of the Port of Manta near the City of San Juan Quenzio. The captain was instructed to turn on a GPS beacon when they got close to the re-fuel coordinates and they were given a sheet with a code name to use when talking on a handheld radio. They were given a phone that had GPS coordinates with each refueling stop and the people in the refueling boats were from Ecuador and had an Ecuadorian flag flying from their boat. 

Defendant G

Born in Buenaventura, Colombia. Worked from a young age to help support his family and going through the garbage to find food. The defendant he legally adopted his granddaughter, 8, who currently lives in Buenaventura. The child was born with an enlarged heart and is in need of heart surgery. The money he earned from the instant offense was meant to help pay for the surgery.

Pirates of the Caribbean is US

This picture is making the rounds. 

To some, it's proof positive that this is a drug boat, suggesting that whoever was in that boat deserved it. I've also seen explained as a fuel boat. 

Yes, that boat doesn't look like the boats we usually see. The boat in the picture is very common to the Venezuela, Columbia, Guyana, Trinidad and Tobago, area. 

These are independent countries but somewhat commercially connected maritime economies, primarily fishing and small-time mercantilism.  

I've had a client who was hired to deliver fuel from Ecuador to Mexico, another one would fish in Tobago and spend the weekends with his family in Venezuela.

Are the blue items in the picture fuel drums or bales of coke? I could see that go both ways...

This is the recently released picture of the September 2 boat. 

Assuming, arguendo, that this is not more administration bs.... triple engines, tarps on deck, fuel drums, in my mind those are red flags...

But, eleven people on that boat? 

No. The size of crews is limited by boat size. These yolas are small. More crew, less space for fuel or cargo. The crews are usually no larger than four or five. The size of what is arguably the contraband seems small.

The argument against these strikes made by Rand Paul and others -  that these small vessels can't reach Puerto Rico, much less the mainland - is misplaced. The MDLEA - the law that seeks to guide these extraterritorial seizures - is a preemptive one. It is based on the assumption that the contraband will eventually land here. The latest war fantasy extends that first strike premise. 

Whatever. 

Who or what was on that boat is not the issue. It could have a deck loaded with hundreds of boxes clearly marked "fentanyl" with "bound for the US" and it wouldn't matter. The issue is this administration's imposition of a capital punishment where no law authorizes it. These are serial murders. It didn't take the second strike to make it so.

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Here, Piggy, Piggy!

Here, Piggy, Piggy!

Press Secretary Leavitt's comments defending Trump's "piggy" comments as part of his "frank, honest, and transparent" personality reminds me of a post I wrote ten years ago about a drubbing I took - also televised for the world to see - at the hands of a politician. "I twisted in the breeze. There's nothing worse than sitting there, telegraphing to the world that you're full of shit. Except for knowing it."  ON ARROGANCE

Of course, I knew I was full of shit. Leavitt, (if I were honest, frank, and transparent, here, I would describe her in a most un-PC way), on the other hand, portends to own the ridiculous crap she says. She is a political geek who daily performs for the cheap seats, biting off the head of credulity for whatever attack on decorum Clownie, the circus ringmaster, has served up. I would pity her if she wasn't so shamelessly a proactive part of the Pickles Posse. 

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This is Murder. Period.

 Murder. Period.

In early September I wrote this piece about the bombings of vessels in international waters from the perspective of a criminal defense lawyer that handles many cases dealing with something called the MDLEA. 

I haven't changed my opinion that this is criminal behavior. But, now, the problem has metastasized, with talks of mutiny and respondent retribution somehow on the table.

The administration has switched the way we did things. 

This Commander explains it best

ALSO HERE

Yes, the problem is a serious one. But why change what has yielded some fairly good bragging rights?

HERE

HERE

HERE

HERE

HERE

HERE

That these are extra judicial killings based on bogus rationales is no stretch. 

BS

IT'S JUST NOT LEGAL!

No longer a criminal justice process, it is now one based on a war fantasy. They have eliminated the hard work of due process, of proving their case, of committing no further harm, and are imposing capital punishment without the necessity of legislation authorizing it. 

As it relates to a war powers act, they have circumvented those folks too.

HERE

HERE

HERE

And, this just the latest in the process causing unnecessary internal conflicts in our military 

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I'm There

I've been reluctant to throw around what I know to be overused. abused,  and loaded political terms like fascist; it bites at our credulity - and - credibility. 

See Here

And Here

But, I'm there.

We've been excusing Trump as a dumbass overreaching narcissist and a lot of other things, but we've got to get to the point that we understand what he is. He is an authoritarian, a sick puppy with the keys to the henhouse. 

Fascism is just a term that we give to encompass political authoritarianism. It is a state of mind that overcomes the body politic. What happened in Germany didn't happen overnight. It morphed politically. 

This is a picture of Americans marching in favor of Nazism in New York in 1939. And just like in Germany, they probably they never envisioned that what they were touting could result in the destruction of their nation's political order, send 6 million people to the gas chambers, and worldwide cataclysm. 

Fascism is just another taxonomic term. It's not limited to Germany. The Chile of today had to rid itself of the horrors of Pinochet. Feel free to make comparisons to left wing totalitarianism but keep your eyes on OUR immediate problem. It doesn't take a cataclysmic revolution. These movements are much more insidious. They are gradual immersions.

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ON TOWING THE PARTY LINE

ON TOWING THE PARTY LINE

Party fealty. I get it. I really do. I was raised in Jersey City, a city whose history ranks right up there with Tammany Hall and other cities known for machine politics. What was instilled in me from an early age was that I was naturally a Democrat. Voting Republican was a far-fetched notion, a mortal failing; it meant that you were some sort of fat cat, rank class collaborationist, or nimrod that voted against your interests.

But, the entirety of my voting life has been here. I left the North to join the service and stayed here afterwards and during that time I’ve witnessed what we’ve all lived through, the conversion of the Solid South. And, in my own way, I’ve been partially responsible for some of that bittersweet change and I can’t say I’m sorry.

During my Jersey City days the story behind men like James Pendergast, William Tweed, and Frank Hague meant little to me. But college and the Sixties taught me a lot about history, politics, corruption and morality. I’ve helped fight the good fight here and it has usually been against an entrenched party.

I take voting as a serious part of my civic commitment. I miss few elections. In 1968 I traveled from Alabama to Panama City, Florida to cast my vote for Eugene McCarthy, knowing that to be a pyrrhic gesture but caring enough to make my voice heard.

When, in 1972, the local Democratic party bosses decided they could take no more of the national trends, they abandoned the party. We stepped into that breach. With Don Siegelmann, Al LaPierre and others, we were now the party and we rode the sinking ship of the McGovern campaign. It was my first and last campaign. And, while I generally support rump candidates, my tendency is, still, to vote Democrat.

Until very recently I could boast to only having cast my lot for three Republicans in my entire last half century of voting. Apart from one local contender, my two "other" votes were for Jack Edwards and Ann Bedsole, politicians who put their constituents first and served their communities with dignity and honor.

I’ve relaxed my bias in the last decade; party monopoly has meant that the real choices are intraparty and good citizenship should not be mindless. I started facing that about a decade ago when in one particular race for district judge it was obvious who the better candidate was. I voted for him. But that was a purely private epiphany.

Then, next term I got a call from a sitting judge asking for my endorsement. I politely deferred, telling him that as a Yellow Dog, I could not endorse a Republican. But after that call, I assessed the job that he had been doing. I could find no fault with it. In fact, it was stellar. What could I have against him?

I called him back. I told him what I thought about the job that he was doing and that I would be proud to have my name associated with his. Since then, I’ve actually voted against my party some more times. Each time with the same criteria, that voting for the better person was better than voting for the party.

I was struck recently by the quandary this election has put some of my conservative and/or religious Republican friends. I understand holding the party line. I really do. Hell, one of my friends calls me "Dommie the Commie." And that’s a perfect metaphor for the issue before the folks who are stuck with the choice they have before them. Do you engage in silly criteria, fake labels, false moral comparisons and political narratives about who is the better candidate or do you do belly up to the bar and act responsibly?

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The Rubicon

 Alea iacta est

In the Democrat/ Republican blame game over the shutdown, the Democrats find themselves in what is essentially the spoiler and seemingly undemocratic position of refusing to sign off on the budget.  As nuanced as this issue is, for those of us troubled about the current Catch-22 state of things, we can't help but wistfully revisit some things in the immediate past that, like Aristotle's analogy of all events as just points in the arc of an arrow, further feed our chronic heartburn.

Our heroes share some complicity. 

Ruth Ginsburg hung on too long. So, too, Biden. Hubris has had its cost. As a result, we ended up with a Supreme Court that is collaborationist. When Sonia Sotomajor and Elena Kagan were nominated, the big debate and vitriol was that they were "activist" liberal judges. Ginsberg's death was followed by the failure to nominate Obama's choice. What followed was obvious to anyone who follows the machinations of government; a Supreme Court with new members that have shown their mettle in the Republican culture wars. 

Biden hung on too long. It is their talent that conservatives are able to constantly turn things around. After that horrible debate - their whisper campaign of his incapacity confirmed - he now became the object of their bathos. He was portrayed as the hapless victim of a feckless party who ultimately abandoned him and used an unfair and antidemocratic procedure to nominate Harris. 

I blame Harris for abandoning the ship. She had an integral part of an administration that for four years had successfully undone the Trump administration's damage. It was a record that was not just defensible, it was laudable. Yet, she sold counter-intuitive goods. Her message was essentially defeatist. She distanced herself from Biden while at the same time selling what could only be seen as a generic version of the same. It was an intellectual double bind not lost on an electorate that needed more medicine, not a placebo. 

The perfect storm was the Republicans. You suck. You allowed no one to pass your purity litmus test. No one was shitty enough for you? Not Nikki Haley, Ted Cruz, Mario Rubio or any of the other horsemen? 

And now, having done that twice, you are cowered. You buy into his style of governance that completely abandons the idea of making things work. You not only condone his anarchic rules of engagement, you abet him. 

And that's how we got to this impasse. But "My way or the highway" only works when you have the numbers. The vote requires 60 votes. (You could have changed the rules but you won't.) You knew you could not count on some of your own members. Knowing that, you FUCK YOU, LUMP IT OR LEAVE IT passed a budget that will completely destroy the lives of the most fragile members of our country. Decimating health care for millions of people, millions of poor people, while at the same time passing tax benefits for uber rich is the Rubicon. The position of the Democrats is not the spoiler position, it is a principled rearguard action.

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The Palace of Justice

 The Palace  of Justice

In 1995 I traveled as part of a delegation to Cuba celebrating Mobile and Havana becoming sister cities. As this was a thaw in the Cuban-American relations, we were being hosted like celebrities. 

When I expressed some interest in going to a courthouse, the guide made it happen. The next day as we entered the courthouse the attendant refused me entry. I was in shorts. "He can't come in here. This is the palace of justice." He was very angry at my insolence. The guide argued the counterpoint, that we were some sort of hotshots. The attendant stood firm.

At some point, the Chief Justice of the Cuban Supreme Court came down and arbitrated the situation, siding with powerpolitik. "Let him in," he said. 

He assigned me a chaperone, a young black lady. She showed me the courtroom, explained to me their system,  and eventually we witnessed a trial. It was, I thought, friendly enough. We shared our thoughts on each other's systems. I was relaxed and unfiltered with her. 

Perhaps too much. At some point I must have betrayed the fact that I thought she was a secretary. "You do understand that I am the second highest ranking judicial officer of the Republic of Cuba?," she told me. I was embarrassed and chagrined. 

She was gracious, accepting my apologies as we passed a pleasant day kibbitzing about the fate of the cashier accused of having intentionally left a skylight unlocked so that someone could steal money out of her till. 

That day is a constant: The attendant at the gate - In this case the literal attendant but euphemistically also the universal attendants of all court systems  - saw his role as a sacred duty, whatever frailties it might have, imagined by me or not; and, I need to be vigilant about the self-inflicted traps of bias, be that about other systems or the stranger in my midst.

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Bad Bunny

About 2 years ago I traveled to Puerto Rico for the funeral of my stepmother. It went as expected, lots of crying and grief, a wake, funeral procession, burial, a couple of days of emotional heavy lifting. 

Afterwards most of us ended up at my sister's house. It was the typical extended family. My sad and morose sisters were sequestered in quiet places throughout the house while the rest of us just tried to endure the pall. 

The adults played the requisite dominoes out on the porch. Music played. My nieces and nephews, many of them here just for this occasion, squatted out on the lawn, catching up with their cousins.

They hijacked the music. My brother and I groussed. We salsa classicists have been at war with what we deem to be modern crap: reggaton, rap, etc. Bad Bunny! It just seemed like the latest perversion. But It was a losing battle. They weren't dilettants. They sang along to all the songs. It filled them with joy and you couldn't help but think it was a good thing.

I didn't walk away with any appreciation for his music. In fact, still not a big fan. I keep meaning to buy the album and give it a fair shake but I just haven't gotten around to it. 

But in the interim I've been watching his progression as a bona fide Puerto Rican hero, a true ambassador of our culture. And he's done it on his own terms with the utmost levels of professionalism and gentility. I think of him as our Taylor Swift.

Dear ABC

Dear ABC:

During the early '70s my wife and I moved to Fairhope, Alabama in order to attend college at the University of South Alabama. At some point, I took a break from my studies and got a job at the local weekly, a small town newspaper in a small Southern town that was  right out of Norman Rockwell.  

The Courier was run by a wonderful couple, Ford and Edith Cook and what I learned from them went well beyond learning the mechanics of newspapers and printing.

I was part of a group that published The Rearguard, an underground newspaper in Mobile. If you own a giant web press and publish a newspaper once a week, It makes no sense financially - or even mechanically - to leave it idle. The Courier job-printed other newspapers, ours included.

One day an FBI agent came to the paper investigating us. He wanted to know who published the paper as well as a bunch of other specifics. Mr. Cook, although very conservative himself, was incensed. He told him to get the hell out of his office that he was acting un-American and gave him  a lecture about the First Amendment.

You could learn a lesson or two from this great American.

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Cut to the bone

 As is evident in the constant shifts in the conversation about Kirk's killer, we parse out issues through the prism of beliefs and prejudices. It seems we are now going to return to talking about the shooter's personal life and that somehow his presumed justification for carrying out this terrible act is what we should be talking about. 

Cut to the bone - past the gristle and fat of the shooter's motivation - and face the fact of a senseless killing and our seeming acquiescence to this constant mayhem. I have little confidence that it will bring us out of our coma of indolence. Any meaningful action will be lost in the push and pull and the fact of another senseless killing will be just more dust in the wind. 

"Well, shit, what can we do?" Not much could have been done to stop him from going to a campus with which he was apparently very familiar and using what's probably gramp's hunting weapon. But things can be done to make these events less likely. Kirk's killing has now shared the grief with those who oppose doing anything to curb gun violence in the name of the sanctity of the Second Amendment. It's not a defeat to recognize that something has to change, to give up a bit of your absolutism, to belly up to the bar.

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THE STATE OF OUR POLICE STATE STATE OF MIND:

THE STATE OF OUR POLICE STATE STATE OF MIND:

How Has Law and Order Been Degraded to this Point? 

No president in our lifetime has better exemplified the arrogance of power than Donald Trump. There is no better a perfect metaphor for the state of our police state than a picture of the phalanx of armed men - A Praetorian guard - in front of the Lincoln memorial; unidentified, no name tags, terrifyingly ominous. That image now seems tame compared to the double-down brutishness of Trump 2.0.

But we didn’t get here overnight. 

The problem cannot be blamed solely on one man or one party. He is the symptom, not the disease. We continue to deal with problems in a visceral way and that often leads to disastrous results. We link even mundane things like window tint restrictions with crime or high school graduation with the privilege of driving. We pass domestic violence gun-control laws but refuse to deal with gun control, sex crimes and drug databases, restrict bond, etc. They’re all linked to some government sanction as a solution, perhaps well-meaning but many times leading to some other problems. 

Where Are the Many Points in the Downward Arc? 

It’s always been a balancing act between too much government versus not enough. We over-criminalize and mass incarcerate as if incapacitation were the only solution. We dried up social services and government programs and helped birth a major mental health crisis in mental health that, in turn, placed the problems of draconian overreactions by government in play. 

Of the panoply of moments, of the myriad acid drips that have steadfastly worn away at the firmament of our liberties, the most cataclysmic has been 9/11, or more specifically, our response to it. That day, we crossed the Rubicon. 

Revenge and fear are powerful emotions. The elixir of the two, this deadly potion, yielded the Patriot Act, FISA, Total Information Awareness, and our acquiescence to the spiraling expansion of the police state. The citizenry was no longer presumed innocent. What previously might have been just a routine traffic stop now developed into a full investigation of all of the occupants, secret cameras on the highways, databases, etc. The War on Drugs was now the war on us.

 Can’t Have a Police State Without the Police.

Police are the bulwark of the law and order front line. The job is dangerous and underpaid and they must deal with a citizenry that is pampered and privileged, that has a tendency towards violence, and is potentially heavily armed. Understanding this, the law - and all branches are complicit - had already been accommodating Constitutional proscriptions to the “reality” of their work. 

In the process, over the past forty years, our rights have taken a beating, the guardrails against overreach weakened, and the actors more brazen. In that regard, Trump's fileting of the law into thin gossamer strips is nothing new. He is Alexander’s solution to the Gordian Knot, simplistic, dangerous, and counter-productive.

I became a lawyer in 1986 at just about the time that there was this tectonic shift in the law. That's when the Federal sentencing guidelines took effect. At that point the rights of the accused were on the ropes and being pummeled into near unconsciousness. Many states, including my own, followed suit.

The guidelines were just manifestations of a long-standing evolution and signaled what had been happening in this country for a period of time. It's how we got here, afraid of our police, suspicious of our government, and putting up with things a few decades ago would have sounded improbable.

Here, too, it would be convenient to talk about race and the impact of the guidelines. They have had a disastrous effect on persons of color. That is an important discussion to be had. The guidelines have a tremendous impact on everyone accused of a crime and on the rest of us whose rights are further diminished by these things.

That it has been a disastrous experiment can be seen by the fact that there have been numerous attempts to mitigate their impact - from making mandatory minimums less Draconian, the safety valve, conversion ratios, to most recently, the First Step Act.

Monetizing Justice

    "There's a lot of money in slavery," a client of mine once quipped. He was complaining that he had been housed in a for-profit jail in Florida somewhere and that his rights were now secondary to what some corporation wanted, demanding exorbitant prices for services like telephone calls and commissary. He was right; the exploitation of personal liberties for economic advantage is slavery. Justice delivery is now just another service industry calibrated to maximize those profits. They have monetized justice.

    A few years ago while conferring with an Assistant District Attorney in Baldwin County, I noticed a giant building being constructed. "What is that building?" I asked. It was the new jail. "If the largest building in your town is a jail, you're doing something wrong," I told her. They are now constructing an even bigger addition and it's being done on the backs of penalties, fines, programs, video and phone kiosks, and rents paid by the federal government to warehouse prisoners. 

    When you go to court - and every court systems I have ever been in is the same now - you will face the issue of pre-trial detention or be forced to pay for a cafeteria plan of costly services (court referral officers, specialized courts, leg monitors, traffic school, color codes, etc.), all leveraged by your liberty interest. 

    The police, also, are part of that gravy train. Not only do government funds flow to police departments, they get to play GI Joe with sophisticated weapons not meant for the civilian population (tanks, sonic weapons, heat-ray devices). Given the new reality, there is infinitely less accountability for the "Warrior Cop" and the folks who ostensibly oversee them. Things like tort reforms that shield municipalities and states from being sued, the evisceration of the EEOC, and Supreme Court rulings providing cover for police brutality have led us to the point that tactics reserved for enemy combatants (e.g. snipers?) are more likely a norm.

Race

Persons accused of crime are a constituency without representation. In any policy debate or judicial decision, severity is usually the wiser course. The law, this hammer, often peens most harshly along racial lines. Race is an enticing topic, the moth to the flames. Not to diminish its importance but let us also look beyond it. Racism is The dark crusty scab on an ugly wound. Yes, it  exacerbates the problem of disparate treatment and the use of the most oppressive mechanism available, governmental action. 

"Race", however, distracts us from talking about the underlying roots of what is essentially universal oppression. "Black Lives Matter" is countered by those that say that "All Lives Matter" and they're both right, they are not exclusive or contradictory terms. Let's recognize that race is a very important topic but also that it's a veneer and in many ways a barrier that keeps us from looking at many of the underlying causes of the problem. Lurking underneath is the loss of our freedom in general and the transformation of a society that was essentially libertarian to one of a burgeoning police state. I don't know where we're going but I know where we've been. We need to get back there and that requires more than hand wringing.

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Shooting bullets into the hull of the boat

 Shooting bullets into the hull of the boat

As one of our district's Spanish-speaking attorneys, other than the U.S. Attorney that prosecutes most of these cases, I have probably handled more Maritime Drug Law Enforcement Act (MDLEA) cases than anyone. The first one of these cases began with my surprise that we could pluck somebody out of the ocean somewhere very far away, someone who is not in route to the United States, and proclaim that we have jurisdiction over them to enforce drug laws. "Surely, that can't be right. Is it?"    

        Over the last decade or so we criminal defense lawyers have litigated that issue - and everything else, from jurisdiction, law of the seas, standing, venue, economic zones, territorial boundaries, archipelagic boundaries, etc. - and each time we have arrived at the point that the United States is pretty much like the Roman Empire, it can roam all over the high seas and do whatever it wants. We reached that point through a process that I'm not real comfortable with, but at least it was a process.  

Imposing a capital punishment on the 11 lives in the boat sunk last week off the coast of Venezuela was a crime. It was, in the immediate sense a crime against them, but on a larger plane it's part of the serial crimes being waged against the  United States by a crew of hooligans obeying the fantasies of an infantile wannabe who along with his posse are channeling "there's a new sheriff in town" behavior out of something akin to a Tom Clancy novel. Forget niceties such as civility, we're now at the point we've abandoned any pretense that we're going to follow laws, even a law as ridiculous as the MDLEA. 

Without getting too far into the weeds, here's what the MDLEA does and what, at a minimum, due process it affords. Here's a daisy chain of MDLEA bullet points and what it prohibits: certain acts on board a "covered vessel" (a covered vessel is a vessel subject to the jurisdiction of the United States); "Subject to the jurisdiction of the United States" includes a vessel registered to a foreign nation (if that nation consents or waives objection to the enforcement of the United States laws); or, a vessel without a flag (and therefore a vessel without jurisdiction). 

Before reaching that point, though, requires probable cause, a reasonable suspicion that the vessel is engaged in illegal activity. As to this boat, it has four engines on it, so that immediately would raise suspicion. Eleven people on the boat, that's a bit much. I Can't get a good shot of the interior of the boat, but the crews on on these boats usually have a maximum if six people. Were there photos of oil (fuel) drums, packages, etc.? (They may have been on its way to the mothership. If so, that makes this - leaving aside the inhumanity part - suspect that it has little to do with anything but theater. 

To insure the principle of freedom of the seas, international law generally prohibits any country from asserting jurisdiction over foreign vessels on the high seas. The first step would have been for a helicopter to get a cutter in the area. Sometimes the Coast Guard has personnel on foreign (British, Dutch) ships. They will radio the Coast Guard command and then a series of interchanges can happen: does the ship have a flag?; Did you query that country for permission? ("vessel subject to the jurisdiction of the United States" includes a vessel registered to a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States. 46 U.S.C.S. § 70502(c)(1)(C)); and, finally, did the Secretary of State's designate certify the response of the foreign nation to the claim of registry . 46 U.S.C.S. § 70502(d)(2))  Here's an interview with the Coast Guard Commander we would usually deal with.  

Once approved, the Coast Guard sets out to stop, investigate, and if necessary, arrest the crew and its contents. This will include videos shot from the convoy helicopter, the Cutter, and the Zodiac boarding crew. Sometimes engine disabling or warning shots will be fired to force compliance. What follows, as befits their military discipline, is an almost-perfectly documented criminal case: videos, Coast Guard crew statements, suspect statements, drug field tests, logs, contemporaneous notes, diagrams, etc. 

Whether or not this was really a drug boat or was just ferrying immigrants (or were part of Tren de Aragua, or whatever scenario they can conjure up) what those of us that do this kind of work know is that these cartels will often impress people sometimes against their will. There may be one or two people that are actually the owners or an integral part of the conspiracy but the crew are mostly just people that have been shanghaied either economically or through force. The cartels need people that are familiar with boats and that's usually hard-scrabble fishermen. They will offer them a large amount of money. Some have been held captive against their wills for months. Some lured out of places like Guatemala or Ecuador with offers of legitimate work and held in a compound in some remote place in Mexico. Families are threatened. The list goes on. 

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Roy Black

"Epstein's lawyer". That's going to be the hook for the news of the passing of Roy Black, penultimate criminal defense attorney.

Before anyone goes down the conspiracy rabbit trail, do know that he was so much more than that. If you're interested, look up his bio but speaking from personal experience Roy Black is one of the many blips of good fortune in my life. 

I graduated from law school in 1986, spent some time in Austin, and came to Mobile in 1987. As I am able to speak Spanish, I started representing federal cases as a  Criminal Justice Act panel attorney.

One of those involved Roy. He represented Dickie Lynn, who was accused of importing 16 tons of cocaine into Alabama.

My client was an offloader who was stupid enough to try his case in federal court. (We won. But that's another story. Read my book if you want to know more.) My job was to stay out of the way and let the big dogs fight. 

I had no idea how far out of my depth I was at the time. But Roy (and the other defense team) handed me a priceless luxury; for 5 weeks I sat there and watched the precision surgery of criminal defense artistry. I even wrote a book about it.

But more than that, I saw up close that you can be the big fish in the biggest pond and not lose your sense of grace or humanity. Roy legitimately cared about the law and his client and he never made me feel like the baby lawyer that I was. He took pleasure in walking around downtown, enjoying things  like the shoeteria, peanut shop, George's Candy store. He was a real person through and through.

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How does he do it?

You are right to be scared.

We are now only 6 months into Trump's presidency and, go figure, things are even crazier.

Looking positively to the future, though, how are we going to explain him when he's gone when even now so much of this makes absolutely no sense?

Politics and policy - at least in the general sense - aside, his reactions reveal the perfect storm; an obviously deeply troubled person, a bumbler, but somehow skating on the brink works for him.

This week's "what now?" moment has been the "Epstein matter". The beat-back he's getting is a problem of his own creation. Karma. But some of the things that he does leads us back to the whole question of how does he get away with what for others would be disastrous?

It's really just minutia, but his response to the "bawdy" tape "Wall Street Journal" story is a great example. We have gone from the "I could shoot someone on 5th avenue" claim, to the Access Hollywood "grab them by the pussy" tape, a disastrous first term, all culminating in an attack on the Capitol during his first term and now, Trump 2.0.

We know that Trump never ducks or covers but how would you catalog some crude drawing and cryptic message about a "secret" among this list of dirty doings? This guy is a convicted felon, been accused of rape and has been fined civilly for sexual misconduct. Who cares if he sent another perv a birthday message with some sort of crude drawing?

The question for me, the thing that brings me back to being puzzled, is why not just say "so what?" and move on? Instead, he engages in denials and things that can easily be proven to be patently false. 

Why does he get yet another pass? The only explanation I can come up with is that deep down inside contrarians fascinate. Like the frontier American Indian shaman who rides his horse backwards and acts in all manner of unexpected ways, he is mesmerizing. To some he just seems like a crazy man but to the others in the tribe he's magic. 

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