JAIL 4 YEARS, NO TRIAL

No. Not Communist China: Washington DC

Forty-six year old Carlton John Brown, a security officer at the former Dream nightclub in northeast Washington DC had a heated confrontation with two men in front of the club at 2:30 a.m. on May 15, 2004. They parked their vehicle in front of the "no parking" entrance of the club. The argument took a dangerous twist when guns were drawn. According to DC police who investigated the incident, Brown began firing. He hit the two men with whom he was arguing. He also hit a third man who was approaching the club to meet up with two friends. The third man, Derrick Potts, was on off-duty DC police officer. And that's what sparked Brown's four year odyssey in the DC lockup-sans trial.

As he approached the club, Potts said he could hear them arguing about the vehicle parked in front of the nightclub. He heard one guy tell Brown, "Well, make me move my truck! You make me move my truck!" Potts said he saw some shoving, but couldn't tell who pushed whom. Then, Potts said, he heard the first gunshot followed by four or five others in quick succession as he dived for cover behind a truck. He was struck in the leg by one bullet. In the split second when the gunfire started, Potts was diving for cover and not watching those engaged in the confrontation. The two men who got into a fight with the Dream's security officer swore that Brown fired first and they acted in self-defense. Brown argued they fired first and he reciprocated in self-defense.

DC cops, rallying around one of their own, decided Brown was good for the crime. They arrested the security guard and locked him up on a 13-count federal indictment. The most serious charge, carrying and discharging a firearm, would mete the most serious jail time. It violatied DC's unconstitutional gun ban which was overturned by the US Supreme Court on June 28, 2008-four years and five lawyers ago. In the interim, the three shooting victims filed lawsuits against the Dream nightclub. The claims made by two of the men were quickly settled. The third lawsuit is still pending.

The "ironclad" case appeared not to be quite so ironclad after a second, third, fourth and fifth glance. As Brown fired four of his lawyers, or they lost interest in his case because Brown refused to accept plea deals from federal prosecutors looking for an easy win, he continued to sit in jail even though the wounds suffered by those shot on May 15, 2004 were minor. Brown's 5th attorney, A. Eduardo Balarezo a criminal lawyer practicing in Baltimore and Washington noted, first, that he was Brown's fifth attorney in over four years.

"It's a shame it took four years of Mr. Brown sitting in jail pending trial for the government to do the right thing and dismiss the case. It was apparent," he said, "upon my initial review of the file that the evidence did not support the charges. Thankfully, the government finally realized this also."

The government made no attempt to drop the gun charges in the indictment even though the Supreme Court threw out the DC gun ban law as unconstitutional. In the minds of the prosecutors, when the incident happened, the gun ban was construed to be legal, therefore Brown could still be sentenced to prison for violating it even though the high court ruled it violated the Constitution.

Had Brown not hired Balarezo-who has a good percentage of wins against the federal prosecutors in DC and Baltimore-its likely that his prosecution would have commenced and concluded on August 12, 2008 as scheduled-with Brown being railroaded by the US Attorney as a favor to the DC Metropolitan Police. Instead, realizing it was not likely that they would get a conviction of any of the charges against Brown, the US Attorney for Washington, DC dropped the charges and released Brown from custody. Channing Phillips, spokesman for the government issued a brief statement:

"The bottom line is that we no longer believed we had sufficient evidence to prove the case beyond a reasonable doubt. We, therefore, were compelled to move to dismiss the charges."

What Phillips really meant was because they couldn't force Brown to accept a plea deal that would put him behind bars for four or five years (probably for "time served"), the government was forced to let him go.

Brown's four year jail stay violated his right to a speedy trial under the 6th Amendment. The fact that, in the end, all charges against him were dropped is a stigma on the US Department of Justice because it shows that the abuse of the Constitution persists with the agency of the federal government sworn to uphold its tenets. Because of the Constitution, it is incumbent on the government to expedite the trials of those accused of crimes, not confine the accused where they can be pressured into accepting plea agreements because the government lacks the evidence to secure a conviction.

Trials that take place two or more years after the "crime" is commonplace in the federal system. If those delays are not caused by the petitions from the defendants, the federal judiciary should throw those cases out with prejudice regardless of the criminal offense since the practice of suspending the life of the accused while the State takes an inordinate amount of time to build its case violates the inherent liberty of every US citizen. It is incumbent on federal and State authorities to leave at liberty those suspected of a crime until the State of federal government has sufficient tangible, not circumstantial, evidence to secure a conviction.

On July 24, 2008 another Balarezo client who was held in a federal lockup for over two years while the US Attorney's Office built their case against him was found not guilty when a federal jury rejected the allegation of the DEA that the man, Jaime Micolta, a Colombian citizen who was arrested in the United States, had conspired with Colombian druglord Pablo Rayo-Montano to ship tons of cocaine into the United States. Micolta's role in the drug smuggling, according to the DEA was to open bank accounts in US banks and find real estate in the United States for Rayo-Montano. Micolta was accused of opening accounts in the names of other people and using those accounts to launder drug money by purchasing real estate which could then be sold legitimately. The federal jury failed to buy the government's circumstantial yarn that was lacking physical evidence of wrongdoing. Instead, all of the witnesses against Micolta came from unreliable people who were part of the drug ring and who offered to testify against Micolta in exchange for a reduced sentence in their own case.

In 1966 the US Supreme Court called the 6th Amendment

"...an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delays will impair the ability of an accused to defend himself."

In this age of radical, extremist terrorism and an increase in horrific sex crimes committed by perverted career offenders, the general public is inclined at times to turn a blind eye on those accused and incarcerated as the perpetrators of hideous crimes, believing those people would not be incarcerated if the government did not have the evidence to detain them. But that is not the point. The right to a speedy trial, first mentioned in the Magna Carta, and chiseled into the Bill of Rights, guarantees that all men have an inherent right to face their accusers in a speedy trial since the longer the accused awaits his fate in a prison cell, the less likely it will be that he actually gets a fair trial. Much of the physical evidence is gone. Witnesses for the defense may die or move away from the area where the crime occurred, becoming unavailable to the defense when the trial actually occurs. And, of course, memories fade after time. And, the longer the defendant sits in a jail cell awaiting trial, the less ability the accused has to prepare for trial.

To circumvent the 6th Amendment, law enforcement agencies and the judicial system now construe that the "right to a speedy trial" is "activated" once the prosecution process of a suspect has begun, not based on the indictment or formal charging of a suspect. Theoretically it begins with the restraints of arrest. In the case of Carlton John Brown, he was under restraint for four years, three months. We need to blame the US Supreme Court because although they have made pithy statements about preventing undue and oppressive incarceration prior to trial, the high court has never made any attempt to define a specific length of time that should be construed as too long to be considered "a speedy and public trial." By anyone's yardstick, four years is too long.

Yet the Supreme Court has adopted the position that each case is considered on its own merits, leaving the door open for federal and State abuse of power by denying suspects a fair and speedy trial. If a prosecutor delays the trial of a defendant to gain an advantage, that clearly violates the 6th Amendment. And, where the American Bar Association believes the absence of witnesses is considered an appropriate reason for delaying the trial of a suspect, the reverse is true. If the witnesses are not available, the defendant should not be a defendant until they are. A suspect, maybe. But not a defendant. The Supreme Court noted that

"...we can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."

The only time a delay is merited is when it is needed by the defendant to prepare an adequate defense. Since defendants are [a] generally not lawyers, and [b] come from a variety of societal and economic circumstances, there is no way to gauge how much time is needed to retain competent counsel, secure the witnesses for the defense and prepare his case to prove his innocence. Even though the burden of proof, theoretically, is on the State to prove guilt, prosecutors today successfully argue to juries, in summation, that the defendant failed to prove his innocence-and although the jury knows the burden is on the State, those statements in summation weigh heavily in their decisions, and many times cause wavering jury members to vote "guilty."

The right to a speedy trial to those accused of crimes in this country, and its implications on the defendant, the jury-and society -makes the Constitutional application of the 6th Amendment crucial to the survival of the United States as a sovereign nation.

Original report here



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