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PRESUMED GUILTY, Aug 11, 1991The Law's Victims in the War on Drugs, Pittsburgh Press, Aug 11, 1991
By Andrew Schneider and Mary Pat Flaherty
From August 11-16, 1991 the Pittsburgh Press published a series on asset seizure and forfeiture. Here is the introduction:
It's a strange twist of justice in the land of freedom. A law designed to give cops the right to confiscate and keep the luxurious possessions of major drug dealers mostly ensnares the modest homes, cars and cash of ordinary, law-abiding people. They step off a plane or answer their front door and suddenly lose everything they've worked for. They are not arrested or tried for any crime. But there is punishment, and it's severe.
This six-day series chronicles a frightening turn in the war on drugs. Ten months of research across the country reveals that seizure and forfeiture, the legal weapons meant to eradicate the enemy, have done enormous collateral damage to the innocent. The reporters reviewed 25,000 seizures made by the Drug Enforcement Administration. they interviewed 1,600 prosecutors, defense lawyers, cops, federal agents, and victims. They examined court documents from 510 cases. What they found defines a new standard of justice in America: You are presumed guilty.
Here si the first article in the series:
Government Seizures Victimize Innocent
Part One: The Overview
February 27, 1991.
Willie Jones, a second-generation nursery man in his family's Nashville business, bundles up money from last year's profits and heads off to buy flowers and shrubs in Houston. He makes this trip twice a year using cash, which the small growers prefer.
But this time, as he waits at the American Airlines gate in Nashville Metro Airport, he's flanked by two police officers who escort him into a small office, search him and seize the $9,600 he's carrying. A ticket agent had alerted the officers that a large black man had paid for his ticket in bills, unusual these days. Because of the cash, and the fact that he fit a "profile" of what drug dealers supposedly look like, they believed he was buying or selling drugs.
He's free to go, he's told. But they keep his money -- his livelihood -- and give him a receipt in its place.
No evidence of wrongdoing was ever produced. No charges were ever filed. As far as anyone knows, Willie Jones neither uses drugs, nor buys or sells them. He is a gardening contractor who bought an airplane ticket. Who lost his hard-earned money to the cops. And can't get it back.
That same day, an ocean away in Hawaii, federal drug agents arrive at the Maui home of retirees Joseph and Frances Lopes and claim it for the U.S. government.
For 49 years, Lopes worked on a sugar plantation, living in its camp housing before buying a modest home for himself, his wife, and their adult, mentally disturbed son, Thomas.
For a while, Thomas grew marijuana in the back yard -- and threatened to kill himself every time his parents tried to cut it down. In 1987, the police caught Thomas, then 28. He pleaded guilty, got probation for his first offense and was ordered to see a psychologist once a week. He has, and never again has grown dope or been arrested. The family thought this episode was behind them.
But earlier this year, a detective scouring old arrest records for forfeiture opportunities realized the Lopes house could be taken away because they had admitted they knew about the marijuana.
The police department stands to make a bundle. If the house is sold, the police get the proceeds.
Jones and the Lopes family are among the thousands of Americans each year victimized by the federal seizure law -- a law meant to curb drugs by causing financial hardship to dealers.
A 10-month study by The Pittsburgh Press shows the law has run amok. In their zeal to curb drugs and sometimes fill their coffers with the proceeds of what they take, local cops, federal agents and the courts have curbed innocent Americans' civil rights. From Maine to Hawaii, people who are never charged with a crime had cars, boats, money and homes taken away.
In fact, 80 percent of the people who lost property to the federal government were never charged. And most of the seized items weren't the luxurious playthings of drug barons, but modest homes and simple cars and hard-earned savings of ordinary people.
But those goods generated $2 billion for the police departments that took them.
The owners' only crimes in many of these cases: They "looked" like drug dealers. They were black, Hispanic or flashily dressed.
Others, like the Lopeses, have been connected to a crime by circumstances beyond their control.
Says Eric Sterling, who helped write the law a decade ago as a awyer on a congressional committee: "The innocent-until-proven- guilty concept is gone out the window.
The Law: Guilt Doesn't Matter
Rooted in English common law, forfeiture has surfaced just twice in the United States since colonial times.
In 1862, Congress permitted the president to seize estates of Confederate soldiers. Then, in 1970, it resurrected forfeiture for the civil war on drugs with the passage of racketeering laws that targeted the assets of criminals.
In 1984 however, the nature of the law was radically changed to allow government to take possession without first charging, let alone convicting the owner. That was done in an effort to make it easier to strike at the heart of the major drug dealers. Cops knew that drug dealers consider prison time an inevitable cost of doing business. It rarely deters them. Profits and playthings, though, are their passions. Losing them hurts.
And there was a bonus in the law. the proceeds would flow back to law enforcement to finance more investigations. It was to be the ultimate poetic justice, with criminals financing their own undoing.
But eliminating the necessity of charging or proving a crime has moved most of the action to civil court, where the government accuses the item -- not the owner -- of being tainted by a crime.
This oddity has court dockets looking like purchase orders: United States of America vs. 9.6 acres of land and lake; U.S. vs. 667 bottles of wine. But it's more than just a labeling change. Because money and property are at stake instead of life and liberty, the constitutional safeguards in criminal proceedings do not apply.
The result is that "jury trials can be refused; illegal searches condoned; rules of evidence ignored," says Louisville, Ky. defense lawyer Donald Heavrin. The "frenzied quest for cash," he says, is "destroying the judicial system."
Every crime package passed since 1984 has expanded the uses of forfeiture, and now there are more than 100 statutes in place at the state and federal level. Not just for drug cases anymore, forfeiture covers the likes of money laundering, fraud, gambling, importing tainted meats and carrying intoxicants onto Indian land.
The White House, Justice Department and Drug Enforcement Administration say they've made the most of the expanded law in getting the big-time criminals, and they boast of seizing mansions, planes and millions in cash. But the Pittsburgh Press in just 10 months was able to document 510 current cases that involved innocent people -- or those possessing a very small amount of drugs -- who lost their possessions.
And DEA's own database contradicts the official line. It showed that big-ticket items -- valued at more than $50,000 -- were only 17 percent of the total 25,297 items seized by DEA during the 18 months that ended last December.
"If you want to use that 'war on drugs' analogy, the forfeiture is like giving the troops permission to loot," says Thomas Lorenzi, presidentelect of the Louisiana Association of Criminal Defense Lawyers.
The near-obsession with forfeiture continues without any proof that it curbs drug crime -- its original target.
"The reality is, it's very difficult to tell what the impact of drug seizure is," says Stanley Morris, deputy director of the federal drug czar's office.
Police Forces Keep the Take
The "loot" that's coming back to police forces all over the nation has redefined law-enforcement success. It now has a dollar sign in front of it.
For nearly eighteen months, undercover Arizona State Troopers worked as drug couriers driving nearly 13 tons of marijuana from the Mexican border to stash houses around Tucson. They hoped to catch the Mexican suppliers and distributors on the American side before the dope got on the streets.
But they overestimated their ability to control the distribution. Almost every ounce was sold the minute they dropped it at the houses.
Even though the troopers were responsible for tons of drugs getting loose in Tucson, the man who supervised the setup still believes it was worthwhile. It was "a success from a cost-benefit standpoint," says former assistant attorney-general John Davis. His reasoning: It netted 20 arrests and at least $3 million for the state forfeiture fund.
"That kind of thinking is what frightens me," says Steve Sherick, a Tucson attorney. "The government's thirst for dollars is overcoming any long-range view of what it is supposed to be doing, which is fighting crime."
George Terwilliger III, associate deputy attorney general in charge of the U.S. Justice Department's program emphasizes that forfeiture does fight crime, and "we're not at all apologetic about the fact that we do benefit (financially) from it."
In fact, Terwilliger wrote about how the forfeiture program financially benefits police departments in the 1991 Police Buyer's Guide of Police Chief Magazine.
Between 1986 and 1990, the U.S. Justice Department generated $1.5 billion from forfeiture and estimates that it will take in $500 million this year, five times the amount it collected in 1986.
District attorney's offices throughout Pennsylvania handled $4.5 million in forfeitures last year; Allegheny County (ED: Pgh is in Allegheny County) $218,000, and the city of Pittsburgh, $191,000 -- up from $9,000 four years ago.
Forfeiture pads the smallest towns coffers. In Lexana, Kan, a Kansas City suburb of 29,000, "we've got about $250,000 moving in court right now," says narcotic detective Don Crohn.
Despite the huge amounts flowing to police departments, there are few public accounting procedures. Police who get a cut of the federal forfeiture funds must sign a form saying merely they will use it for "law enforcement purposes."
To Philadelphia police that meant new air conditioning. In Warren County, N.J., it meant use of a forfeited yellow Corvette for the chief assistant prosecutor.
Judy Mulford, 31, and her 13-year old twins, Chris, left, and Jason, are down to essentials in their Lake Park, Fla., home, which the government took in 1989 after claiming her husband, Joseph, stored cocaine there. Neither parent has been criminally charged, but in April a forfeiture jury said Mrs. Mulford must forfeit the house she bought herself with an insurance settlement. The Mulfords have divorced, and she has sold most of her belongings to cover legal bills. She's asked for a new trial and lives in the near-empty house pending a decision.
'Looking' Like a Criminal
Ethel Hylton of New York City has yet to regain her financial independence after losing $39,110 in a search nearly three years ago in Hobby Airport in Houston.
Shortly after she arrived from New York, a Houston officer and Drug Enforcement Administration agent stopped the 46-year-old woman in the baggage area and told her she was under arrest because a drug dog had scratched at her luggage. The dog wasn't with them, and when Miss Hylton asked to see it, the officers refused to bring it out.
The agents searched her bags, and ordered a strip search of Miss Hylton, but found no contraband.
In her purse they found the cash Miss Hylton carried because she planned to buy a house to escape the New York winters which exacerbated her diabetes. It was the settlement from an insurance claim, and her life's savings, gathered through more than 20 years of work as a hotel housekeeper and hospital night janitor.
The police seized all but $10 of the cash and sent Miss Hylton on her way, keeping the money because of its alleged drug connection. But they never charged her with a crime.
The Pittsburgh Press verified her jobs, reviewed her bank statements and substantiated her claim she had $18,000 from an insurance settlement. It also found no criminal record for her in New York City.
With the mix of outrage and resignation voiced by other victims of searches, she says: "The money they took was mine. I'm allowed to have it. I earned it."
Miss Hylton became a U.S. citizen six years ago. She asks, "Why did they stop me? Is it because I'm black or because I'm Jamaican?"
Probably, both -- although Houston police haven't said.
Drug teams interviewed in dozens of airports, train stations and bus terminals and along other major highways repeatedly said they didn't stop travellers based on race. But a Pittsburgh Press examination of 121 travellers' cases in which police found no dope, made no arrest, but seized money anyway showed that 77 percent of the people stopped were black, Hispanic, or Asian.
In April, 1989, deputies from Jefferson Davis Parish, Louisiana, seized $23,000 from Johnny Sotello, a Mexican-American whose truck overheated on a highway.
They offered help, he accepted. They asked to search his truck. He agreed. They asked if he was carrying cash. He said he was because he was scouting heavy equipment auctions.
They then pulled a door panel from the truck, said the space behind it could have hidden drugs, and seized the money and the truck, court records show. Police did not arrest Sotello but told him he would have to go to court to recover his property.
Sotello sent auctioneer's receipts to police which showed he was a licensed buyer. the sheriff offered to settle the case, and with his legal bills mounting after two years, Sotello accepted. In a deal cut last March, he got his truck, but only half his money. The cops kept $11,500.
"I was more afraid of the banks than anything -- that's one reason I carry cash," says Sotello. "But a lot of places won't take checks, only cash, or cashier's checks for the exact amount. I never heard of anybody saying you couldn't carry cash."
Affidavits show the same deputy who stopped Sotello routinely stopped the cars or black and Hispanic drivers, exacting "donations" from some.
After another of the deputy's stops, two black men from Atlanta handed over $1,000 for a "drug fund" after being detained for hours, according to a hand-written receipt reviewed by the Pittsburgh Press.
The driver got a ticket for "following too close." Back home, they got a lawyer.
Their attorney, in a letter to the Sheriff's department, said deputies had made the men "fear for their safety, and in direct exploitation of that fear a purported donation of $1000 was extracted..."
If they "were kind enough to give the money to the sheriff's office," the letter said, "then you can be kind enough to give it back." If they gave the money "under other circumstances, then give the money back so we can avoid litigation."
Six days later, the sheriff's department mailed the men a $1,000 check.
Last year, the 72 deputies of Jefferson Davis Parish led the state in forfeitures, gathering $1 million -- more than their colleagues in New Orleans, a city 17 times larger than the parish.
Like most states, Louisiana returns the money to law enforcement agencies, but it has one of the more unusual distributions: 60 percent goes to the police bringing a case, 20 percent to the district attorney's office prosecuting it and 20 percent to the court fund of the judge signing the forfeiture order.
"The highway stops aren't much different from a smash-and-grab ring," says Lorenzi, of the Louisiana Defense Lawyers Association.
Paying For Your Innocence
The Justice Department's Terwilliger says that in some cases "dumb judgement" may occasionally cause problems, but he believes there is an adequate solution. "That's why we have courts."
But the notion that courts are a safeguard for citizens wrongly accused "is way off," says Thomas Kerner, a forfeiture lawyer in Boston. "Compared to forfeiture, David and Goliath was a fair fight."
Starting from the moment that the government serves notice that it intends to take an item, until any court challenge is completed, "the government gets all the breaks," says Kerner.
The government need only show probable cause for a seizure, a standard no greater than what is needed to get a search warrant. The lower standard means the government can take a home without any more evidence than it normally needs to take a look inside.
Clients who challenge the government, says attorney Edward Hinson of Charlotte, N.C., "have the choice of fighting the full resources of the U.S. treasury or caving in."
Barry Kolin caved in.
Kolin watched Portland, Ore., police padlock the doors of Harvey's, his bar and restaurant for bookmaking on March 2.
Earlier that day, eight police officers and Amy Holmes Hehn, the Multnomah County deputy district attorney, had swept into the bar, shooed out waitresses and customers and arrested Mike Kolin, Barry's brother and bartender, on suspicion of bookmaking.
Nothing in the police documents mentioned Barry Kolin, and so the 40-year-old was stunned when authorities took his business, saying they believe he knew about the betting. He denied it.
Hehn concedes she did not have the evidence to press a criminal case against Barry Kolin, "so we seized the business civilly."
During a recess in a hearing on the seizures weeks later, "the deputy DA says if I paid them $30,000 I could open up again," Kolin recalls. When the deal dropped to $10,000, Kolin took it.
Kolin's lawyer, Jenny Cooke, calls the seizure "extortion." She says: "There is no difference between what the police did to Barry Kolin or what Al Capone did in Chicago when he walked in and said, 'This is a nice little bar and it's mine.' the only difference is today they call this civil forfeiture."
Minor Crimes, Major Penalties
Forfeiture's tremendous clout helps make it "one of the most effective tools that we have," says Terwilliger.
The clout, though, puts property owners at risk of losing more under forfeiture that they would in a criminal case under the same circumstances.
Criminal charges in federal and many state courts carry maximum sentences. But there's no dollar cap on forfeiture, leaving citizens open to punishment that far exceeds the crime.
Robert Brewer of Irwin, Idaho, is dying of prostate cancer, and uses marijuana to ease the pain and nausea that comes with radiation treatments.
Last Oct. 10, a dozen deputies and Idaho tax agents walked into the Brewer's living room with guns drawn and said they had a warrant to search.
The Brewers, Robert, 61, and Bonita, 44, both retired form the postal service, moved from Kansas City, Mo., to the tranquil, wooded valley of Irwin in 1989. Six months later, he was diagnosed.
According to police reports, an informant told authorities Brewer ran a major marijuana operation.
The drug SWAT team found eight plants in the basement under a grow light and a half-pound of marijuana. The Brewers were charged with two felony narcotics counts and two charges for failing to buy state tax stamps for the dope.
"I didn't like the idea of the marijuana, but it was the only thing that controlled his pain," Mrs. Brewer says.
The government seized the couples five-year-old Ford van that allowed him to lie down during his twice-a-month trips for cancer treatment at a Salt Lake City hospital, 270 miles away. Now they must go by car.
"That's a long painful ride for him ... He needed that van, and the government took it," Mrs. Brewer says. "It looks like they can punish people any way they see fit."
The Brewers know nothing about the informant who turned them in, but informants play a big role in forfeiture. Many of them are paid, targeting property in return for a cut of anything that is taken.
The Justice Department's asset forfeiture fund paid $24 mil. to informants in 1990 and has $22 million allocated this year.
Private citizens who snitch for a fee are everywhere. Some airline counter clerks receive cash awards for alerting drug agents to "suspicious" travellers. The practice netted Melissa Furtner, a Continental Airlines clerk in Denver, at least $5,800 between 1989 and 1990, photocopies of checks show.
Increased surveillance, recruitment of citizen-cops, and expansion of forfeiture sweeps are all part of a take-now, litigate-later syndrome that builds prosecutors careers, says a former federal prosecutor.
"Federal law enforcement people are the most ambitious I've ever met, and to get ahead they need visible results. Visible results are convictions, and, now, forfeitures," says Don Lewis of Meadville, Crawford County. (ED: a Pa county north of Pgh by two counties.)
Lewis spent 17 years as a prosecutor, serving as an assistant U.S. attorney in Tampa as recently as 1988. He left the Tampa Job -- and became a defense lawyer -- when "I found myself tempted to do things I wouldn't have thought about doing years ago."
Terwilliger insists U.S. attorneys would never be evaluated on "something as unprofessional as dollars."
Which is not to say Justice doesn't watch the bottom line.
Cary Copeland, director of the department' Executive Office for Asset Forfeiture, says they tried to "squeeze the pipeline" in 1990 when the amount forfeited lagged behind Justice's budget projections.
He said this was done by speeding up the process, not by doing a "whole lot of seizures."
Ending the Abuse
While defense lawyers talk of reforming the law, agencies that initiate forfeiture scarcely talk at all.
DEA headquarters makes a spectacle of busts like the seizure of fraternity houses at the University of Virginia in March. But it refuses to supply detailed information on the small cases that account for most of its activity.
Local prosecutors are just as tight-lipped. Thomas Corbett, U.S. Attorney for Western Pennsylvania, seals court documents on forfeitures because "there are just some things I don't want to publicize. the person whose assets we seize will eventually know, and who else has to?"
Although some investigations need to be protected, there is an "inappropriate secrecy" spreading throughout the country, says Jeffrey Weiner, president-elect of the 25,000 member National Association of Criminal Defense Lawyers.
"The Justice Department boasts of the few big fish they catch. But they throw a cloak of secrecy over the information on how many innocent people are getting swept up in the same seizure net, so no one can see the enormity of the atrocity."
Terwilliger says the net catches the right people: "bad guys" as he calls them.
But a 1990 Justice report on drug task forces in 15 states found they stayed away from the in-depth financial investigations needed to cripple major traffickers. Instead, "they're going for the easy stuff," says James "Chip" Coldren, Jr., executive director of the Bureau of Justice Assistance, a research arm of the federal Justice Department.
Lawyers who say the law needs to be changed start with the basics: The government shouldn't be allowed to take property until after it proves the owner guilty of a crime.
But they go on to list other improvements, including having police abide by their state laws, which often don't give police as much latitude as the federal law. Now they can use federal courts to circumvent the state.
Tracy Thomas is caught in that very bind.
A jurisprudence version of the shell game hides roughly $13,000 taken from Thomas, a resident of Chester, near Philadelphia.
Thomas was visiting in his godson's home on Memorial Day, 1990, when local police entered looking for drugs allegedly sold by the godson. They found none and didn't file a criminal charge in the incident. But they seized $13,000 from Thomas, who works as a $70,000-a-year engineer, says his attorney, Clinton Johnson.
The cash was left over from a Sheriff's sale he'd attended a few days before, court records show. the sale required cash -- much like the government's own auctions.
During a hearing over the seized money, Thomas presented a withdrawal slip showing he'd removed money from his credit union shortly before the trip and a receipt showing how much he had paid for the property he'd bought at the sale. The balance was $13,000.
On June 22, 1990, a state judge ordered Chester police to return Thomas' cash.
Just before the court order was issued, the police turned over the cash to the DEA for processing as a federal case, forcing Thomas to fight another level of government. Thomas is now suing the Chester police, the arresting officer, and the DEA.
"When DEA took over that money, what they in effect told a local police department is that it's OK to break the law," says Clinton Johnson, attorney for Thomas.
Police manipulate the courts not only to make it harder on owners to recover property, but to make it easier for police to get a hefty share of any forfeited goods. In federal court, local police are guaranteed up to 80 percent of the take -- a percentage that may be more than they'd receive under state law.
Pennsylvania's leading police agency-- the state police -- and the state's lead prosecutor -- the Attorney General -- bickered for two years over state police taking cases to federal court, an arrangement that cut the Attorney General out of the sharing.
The two state agencies now have a written agreement on how to divvy the take.
The same debate is heard around the nation.
The hallways outside Cleveland courtrooms ring with arguments over who will get what, says Jay Milano, a Cleveland criminal defense attorney.
"It's causing a feeding frenzy."
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