Probable cause in arrests, initial appearances, informations, and grand jury indictments

Saturday, April 27, 2013

I write today to clear up some confusion that I may have caused regarding the purpose of an initial appearance in a federal criminal case. I think I caused the problem by failing to mention that all federal court felony prosecutions must be by grand jury indictment. I cover a lot of basic material that most people do not know about our criminal justice system. This information will help you understand why Dzhokhar Tsarnaev’s initial appearance happened on Monday. I also provide basic information about grand juries, including when and why they were created. Finally, you will have a more thorough understanding of probable cause and its role in our criminal justice system.

In tomorrow’s post I will look ahead to Tuesday’s hearing in the Zimmerman case and express some choice words to describe the new low in sleaziness achieved by Mark O’Mara.

Do not confuse an initial appearance with an arraignment. An initial appearance is a judicial review of a complaint and affidavit for probable cause to determine whether the affidavit actually establishes probable cause or reasonable grounds to believe the defendant committed the crime(s) charged in the complaint. The defendant does not enter a plea at the initial appearance for the simple reason that he cannot be arraigned unless he has been indicted by a grand jury.

The Fifth Amendment provides in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

Many states, including Florida, permit prosecution by information. The Zimmerman case is a good example. Florida permits felony prosecution by information except in capital cases, which must be prosecuted by grand jury indictment. Therefore, State Attorney Angela Corey could have prosecuted the defendant for second degree murder by grand jury indictment or by information. She opted to charge Zimmerman by information thereby avoiding the cumbersome and time consuming effort required to persuade a grand jury to indict him.

Prosecution by grand jury indictment originated in England in order to prevent the king from initiating bogus criminal prosecutions against political enemies for political reasons. Transferring the power to charge people with crimes from the king to a group of citizens was a remarkable accomplishment at the time and a very important step in the long evolutionary process from governance by an unchecked monarchy to governance by elected officials.

We live in a different world where grand juries have become little more than rubber stamps signing off on indictments proposed by prosecutors. This is not surprising since grand juries meet in secret without a judge to supervise the proceedings. Hearsay is permitted because the rules of evidence do not apply and the targets of their investigations are not present. The absence of judicial oversight and the exclusion of suspects and their lawyers from participation in the process permits prosecutors to rig the outcome.

A suspect cannot be arrested or charged with a crime unless there is probable cause (i.e., reasonable grounds) to believe he committed the crime.

In the case of an arrest, the police decide whether they have probable cause. However, police are not lawyers. They can and do make mistakes even when they are acting in good faith. Although prosecution by information transfers the power to charge a suspect with a crime from the police who arrested the suspect to a prosecutor, the test remains the same. The prosecutor must have probable cause to believe the suspect committed the crime. The same is true when the prosecution is by grand jury indictment only now the grand jury is making the decision instead of the prosecutor. Finally, in our legal system we have judicial review of police decisions to arrest and prosecutor’s decisions to charge suspects with crimes. The test is still probable cause but now a judge is making the decision.

Judges also review the issue of detention after police have arrested a suspect and booked him into a jail pending a decision to charge or release a suspect by a prosecutor or the grand jury. Judicial review of probable cause and detention in federal court takes place at the initial appearance.

An arraignment is a judicial hearing that occurs after a person has been charged, whether by information or grand jury indictment. The purpose of the arraignment is to formally notify the defendant that he has been charged with a crime(s) and to record his plea. In both federal and state courts, defendants are required to plead “not guilty.”

There is a good reason for this requirement. Arraignment calendars in state and federal courts are busy affairs. Judges cannot accept a guilty plea unless they are satisfied that the defendant knows what rights he is forfeiting by pleading guilty. The defendant also must provide a statement under oath regarding what he did that is legally sufficient to support the plea. Guilty pleas can take up to 15 or even 30 minutes to complete. Therefore, they are scheduled for a different time.

Magistrate judges in each federal district conduct the initial appearances and arraignments in federal court. Initial appearances are typically scheduled in the afternoon to allow sufficient lead time for federal law enforcement agents and prosecutors to prepare the formal charging document, which we call the complaint, and the supporting affidavit (i.e., sworn statement) for probable cause. The complaint and affidavit are filed in the clerk’s office at the United States Courthouse. In turn the clerk’s office notifies the federal public defender regarding the new arrest and that office assigns the case to a lawyer in the office.

The Pretrial Supervision section of the United States Probation Office also is notified about the new case and they assign it to one of their officers. Their job is to prepare a report for the magistrate judge regarding the defendant and to recommend whether he should be released pending the outcome of the case. They also recommend the conditions of the release.

The United States Marshal’s Office is responsible for transporting the person to court for the hearing.

If this process works smoothly, the defense attorney receives his copy of the complaint and affidavit for probable cause with sufficient time to review and discuss it with the defendant in the lockup at the courthouse before the hearing.

At the beginning of the hearing, counsel for the government and the defendant identify themselves for the record and the magistrate judge informs the defendant of the charge(s) against him in the complaint and the maximum sentence that could be imposed, if convicted. He also advises the defendant of the following rights:

1. Right to remain silent

2. Anything he says can be used against him

3. Right to be represented by the lawyer he chooses, if he can afford the fee and the lawyer files a notice of appearance confirming representation

4. Right to have the court appoint counsel to be paid at public expense, if he cannot afford counsel.

5. Right to be presumed innocent.

6. Right to a jury trial

Most defendants cannot afford counsel and for that reason the clerk’s office routinely assigns the case to the Federal Defender, unless retained counsel contacts the clerk’s office and confirms that he will represent the defendant.

In a multiple defendant case, each defendant is entitled to his own lawyer because acting in the best interests of one client often is not in the best interest of the other client. Assume, for example, that you are representing both defendants. Also assume that the prosecutor contacts you and offers a benefit to one client in exchange for a guilty plea and his agreement to testify against the other client. Congratulations! You now have a conflict of interest and have to withdraw from the case, if it would be in the best interests of the first client to advise him to accept the offer because you cannot advise him to do that without violating your duty to act in the best interests of your other client.

Since your conflict of interest would extend to your law partners, the law firm that employs you, or every other lawyer employed by the Federal Public Defender if you work for them, the district courts maintain a list of experienced and qualified lawyers in private practice who have agreed to accept appointments with financial compensation at the rates set by the court. This list is called the Criminal Justice Administration Panel or CJA Panel.

In multiple defendant cases, the clerk’s office appoints the Federal Public Defender to represent the first defendant. Additional defendants in the same case are each assigned to a CJA Panel attorney. I was a CJA Panel attorney in Seattle for 20 years, so I am familiar with the process.

The process I have described is the same in every federal district in the United States.

This process would have been followed in the Boston Marathon bombing case. Since the Federal Public Defender Office would have known that it would be formally appointed to represent Dzhokhar Tsarnaev on Monday, I am reasonably certain that they assembled a team over the weekend to work on the case. The team would have included at least one or two lawyers, an investigator, and possibly a mitigation specialist.

Subsequent news reports have confirmed that a defense team was assembled over the weekend.

I imagine the lawyer or lawyers attempted to meet with Dzhokhar Tsarnaev at the hospital over the weekend, but were denied access. Law enforcement officials can do that absent a request from the suspect in custody to meet with counsel. I doubt he made that request, if he were intubated, unconscious and unable to speak.

The Magistrate Judge also would have known that she would have to conduct an initial appearance for Dzhokhar Tsarnaev on Monday, assuming he survived until then.

I am relatively certain that arrangements were made on Monday morning to conduct the hearing in the hospital at the patient’s bedside with notification to all parties concerned.

I doubt defense counsel were permitted to meet with their client before the FBI’s interrogation team completed its work.

The Fifth Amendment issue is whether the defendant’s statements will be admissible against him, since he provided them during a custodial interrogation without advice and waiver of his rights per Miranda. The government will argue that the public emergency exception exempted it from having to Mirandize the defendant. The defense will argue that the exception has not been judicially approved and did not apply.

A closely related issue is whether the defendant’s statements were voluntary or coerced, given his medical and mental condition. Was he competent to answer questions?

The Sixth Amendment issue is whether he requested a lawyer at any time before or during the interrogation. We know he could not speak and the interrogation team would have known that. Was he denied pencil and paper at the team’s request before the interrogation? Did he scribble out a request that was ignored?

The remedy for a failure to Mirandize the defendant prior to a custodial interrogation is to exclude his statements from being admitted into evidence.


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113 Responses to Probable cause in arrests, initial appearances, informations, and grand jury indictments

  1. Romaine says:

    How does a child distinguish the difference between a pedophile, rapist, mugger, kid napper, or a neighborhood watch captian / participant?

    when and where are our children taught about a neighborhood watch???

    we teach them about peds, muggers, rapist, and kid nappers.
    we teach them to run, scream, yell, and fight if approached by anyone suspicious, acting violent, uknown to them trying to talk to them, making offers of money candy, drugs…etc

    we teach them that if you run and yell for help the adults hearing your cries will come to your rescue.

    we teach them this in our homes in our schools; we as adults (especially women) learn this on our jobs. there are courses geared towards teaching us the proper way to protect ourselves.

    Why is it not understood that Trayvon was placed in a situation that where his teachings of protecting himself from a man who could have been a ped, rapist, mugger, murderer, or kid napper, causing Trayvon to run, hide and fight for his life?

    Why is it so natural for anyone to believe that Trayvon should have been trusting of a stranger watching him, following him in a truck while talking on the phone; then leaving his truck to chase him down, restrain him, verbally harrasses him then kills him.

    What parent teaches their child to be so trusting to a stranger?

    What if the victim had been an elderly male or female trained in self defense, whipped the defendants A$$ out of fear, and was killed by the defendant?

    Would the response from the multitudes still be…Granny or grandpa should have just answered the questioins and he/she would still be alive.

    Had it been a nine year old trained in self defense, whipping the defendants A$$ out of fear of his/her life and was killed be the defendant, would the claim of standing his ground be accepted?

    Would the response from the multitudes still be…the child should have just answered the questioins and he/she would still be alive.

    This is removing race from the incident in question and placing responsibilty on what we teach our children and how we as adults are expected to protect our babies.

    What parent teaches their child to accept being raped, mugged, verbally / mentally or emotionally abused, beaten for no reason, accepts the death of a loved one because he/she was different from others, or walked the street during the early hours of the evening on a rainy night?

    What parent says to their child, you deserved what you got, and the next time a stranger approaches you, you just submit to whatever the abuse is he/she wants to give and maybe it wont happen!!!!

    or maybe you’ll be raped without getting beaten next time, you’ll get mugged but they won’t take all of your money, they were just joking when they called you a whore during that cyber bullying session, not to worry the next time that pedophile down the street offers to take nude pics of you, you just go ahead and get those pics taken; at least they are free!!!!

    I state all of this to say, there is no life greater than another that has been falsely taken by his brother.

    It is as if Cane has killed Able all over again and the EARTH cries out in sorrow for the loss of a LIFE treasured by our MOST HIGH..


    No matter how u understand or believe your compassion for this young mans life is heard and received!!!!!

    We all say Hoodies up, I wonder how many understand the importance of covering our heads when in the presence of the MOST HIGH….food for thought..

  2. ay2z says:

    I wonder how Judge Nelson’s weekend went? Was she bogged down with reading the stacks of new Thurstay motions and preparing for Tuesday?

    We know MOM was at an AP banquet, he didn’t spend the whole weekend in prep.

  3. ay2z says:

    ‘Out of Time’

    What will BDLR make of the idea of shooting because ‘out of time’?

  4. acemayo says:

    Frank Digironimo · Sales at Pine Belt Cars
    No matter how wrong Zimmerman was for profiling Travon, It did not give him the right to put his hands on Zimmerman. The second he became the aggressor, he was wrong. It’s a tragedy that he lost his life, but it would be an even larger travesty if we put Zimmerman in jail for defending himself.

    this person did read the medical report TM did put a hand on GZ

    Students For Fiscal Sobriety
    insane rotten kid after being kicked out of school attacks a Hispanic guy, media trys to make an Al Sharpton moment, fails when they edit out the 911 call. No legal issues, the world is a much better place now, you can’t just randomly attack people because you are “young and a victim of profiling.” hmmmm I wonder why people profile that character in the first place…. hmmmmm

    I do you know he was an insane rotten kid
    Because he was kicked of school why does mean he attacked GZ
    Show me proof that every black male or female attacks people because they were profile

    Bobby Bergholm · Pickens, South Carolina
    Trayvon shouldn’t have tempted fate. Don’t bring fists to a gunfight.

    Why is so far fetch that TM was defending himself

    • EXACTLY why I stay away from sites where zimbots lurk………all it does is piss me off, and raise the BP…

      Fists to a gunfight….WTF?

      Saw just the other day one still claimgmh Trayvon was 6 ft. 180 lbs.

      these people have access to the same info the courts and we do….ME reports and such….yet they still demonize Trayvon and make fogen the victim.

      And YAHTC…..STILL havn’t spoken with the zimbot lives down the mountain from me…close to a year now

      I KNOW I could not deal with having a conversation with one

      It would be like bringing stupidity to a pissed off old man…

      • Xena says:


        Fists to a gunfight….WTF?

        Zidiots have no common sense and say things that actually do GZ harm. GZ brought the gun to a “gunfight” meaning, GZ is the initial aggressor and did not kill Trayvon in self-defense.

        In the same manner, Zidiots claim that the HOA settlement with Trayvon’s parents was blackmail money. Well, that would mean that Sybrina and Tracy have dirt on the HOA and the HOA paid them to keep it secret.

        Oh — and their bigotvoyence shouts loud and clear that GZ committed a racial hate crime.

      • Rachael says:

        and their bigotvoyence shouts loud and clear that GZ committed a racial hate crime.

        No shit!

      • ladystclaire says:

        You know, with all of these people who continue to slander, smear and, denigrate Trayvon’s short lived life and his memory, they know nothing at all about this kid and how he lived his life. yet they choose to make his murderer the victim in all of this. they are every where on the internet and, even on some sites where you wouldn’t expect them to be but, they are there none the less.

        There is one thing that I would like to know and, only they can give me the answer to what I’m about to say. I would like to know why they are not smearing the kid who wore a T-shirt to his sentencing with the word *KILLER* written across his chest in full view of the families of his three victims. he also gave them and the judge the finger and, said out loud to every single person in that courtroom, *FUCK ALL OF YOU.*

        These racist bigoted subhumans can see fit to smear and slander a deceased kid who they never knew and, are repeating the lies of those white racist who hacked his social media accounts and, take those lies away and repeat them as if they know what they are talking about.

        So, why in the hell aren’t they doing the same to the murderer who so disrespected the families of his victims as well as the court? I sure would like to know why he gets a pass as far as they are concerned. I feel so sad inside when I see this kind of disrespect from people who can see fit to support this kid’s murderer for no other reason other than the color of his skin. this hurts me and, I can just imagine how it must hurt his family as well. to think that there are mothers, fathers, and grand parents taking part in this smear campaign well, it’s just too damn much to take.

        This is wrong, this is so wrong and, Trayvon and his family don’t deserve this.

      • looolooo says:

        Wow! He’s 6 ft. now? He used to be 6’3″ 180! Don’t get so hot under the collar mmp. Can’t you see that they’re trying. And they haven’t described him as a big football player in months. :-p

    • Jun says:

      So what else is new?

      So people are supposed to be okay with unauthorized strangers stalking us and coming at anyone with a gun, and the victim of this is supposed to just stand there and do nothing about it?

      What an idiotic argument…

      So what are people supposed to do when a complete stranger, at night time, stalks people and confronts and threatens them with a gun?

      and what attack?

      The only proven attack is from Fogen stalking Trayvon, scaring Trayvon to run away, Fogen pursuing and chasing Trayvon with a gun, Fogen catching Trayvon, a kid is heard screaming for help, Fogen than kills Trayvon as he is screaming for help

      There’s no dna transfer at all on Trayvon that shows he did any kind of attack, and that is hard science

      And even if Trayvon did attack, of course he should, because some weirdo neighborhood watch guy was going after him with a fucking gun threatening his life

    • Jun says:

      by the time trial starts, they will be claiming that Trayvon was trained by the CIA in all forms of martial arts and he was the leader of the new black panthers

  5. colin black says:

    Forty years ago there were no pc as we understand them in 1973 there was no social media?
    What is M O M smokeing an can I have some?

  6. Patricia says:

    Thank you SG2! Like your video too ,I know you posted it before,I
    Show it to my kids in sanford. Will get back to ya!

  7. ay2z says:

    Prof wrote…”In tomorrow’s post I will look ahead to Tuesday’s hearing in the Zimmerman case and express some choice words to describe the new low in sleaziness achieved by Mark O’Mara.’

    Just posted the audio of Ben Crump’s social media address. No sleaze here from this officer of the court, left the MOM part off.
    Bravo, Ben!

    • Thank you for this, ay2z! I was unsuccessful in downloading a clip I found. TYSM!

    • Patricia says:

      Bravo Big Ben!!!
      Tick tock mock omara!

      @Malisha. Ha ha maybe Mock meant self-impunity…….

      Have a good day everyone. Gotta go to the races !! Horses

    • Trained Observer says:

      Point by point by point … Ben Crump has it on the straight and narrow. Precedent has been set. Let this be a lesson to every small town cop shop in America that thinks it can conveniently overlook arresting a killer with so-called ties to a police chief or a state attorney. Especially when the victim is an unarmed teenager walking home with candy from a nearby store.

  8. kllypyn says:

    He has seen the evidence he knows his client is a scumbag. He needs to quit playing games.

    • ay2z says:

      Notice how he slipped in a comment about ‘overcharged’ prosecutions’. M’OM saying his client was ‘overcharged’? Is he hinting at a defense that could say, include wreckless endangerment by emotional over-fearisms?

      • colin black says:

        The only wat M O M can use over charged an his client in an honest sentance .

        My client conspired to have a huge amount of needless security to inflate his costs.
        So he could over charge the amout he claims in his civil court case against his monetery claim for damages.
        Against NBC.

  9. elcymoo says:

    Attorneys in Trayvon case: Social media set precedent

    Lawyers discuss its impact during Orlando event

    • Rachael says:

      What the heck does: “I think that if I could do away with all media, including all social media, that I would not have it involved in a criminal case,” O’Mara said. “But that’s a fantasy that is 40 years ago.”

      What does that REALLY mean? I understand what he wants people to think it means, but I get a whole different feeling about it.

      • What O’Moron means is 40 years ago when he was a Klan Kadet.

      • Tzar says:

        mountainmanpat says:
        April 28, 2013 at 11:24 am

        What O’Moron means is 40 years ago when he was a Klan Kadet.


      • Judy75201 says:

        Maybe he means when he could have manipulated information better. Controlled what info was released.

      • Two sides to a story says:

        I think OM really thought ithis would be a slamdunk case of self-defense when he took it on this high-profile and that he’d come out smelling like a heroic rose of a defense attorney. He didn’t count on the power of the public via the internet to question Fogen’s feckless actions.

      • Rachael says:

        MMP and Tzar – you got it right, you know exactly what I’m saying.

    • IF George Zimmerman had been arrested on the night he murdered Trayvon Martin, there wouldn’t have been ONE protest. The INJUSTICE made it our business! This ain’t Money Mississippi! You bet your sweet bippy we were out protesting the killing of this innocent kid.

      • Judy75201 says:

        You are 100% correct, SG2.

      • Two sides to a story says:

        He was detained that night – it was the media who made it seem as if nothing was done, when the investigation had just really gotten started. It really isn’t that uncommon in cases like this for the arrests to come weeks later.

        However, the scary part is that it looks as if SPD might have brushed this one under the rug as the investigation wore on.

      • Texad says:


        Ditto-what you said.

    • groans says:

      Can anyone make any sense out of the second sentence in this excerpt? I sure can’t.

      O’Mara said that if it were not for the intense coverage on the shooting, Zimmerman “may never have been charged.” Now since he is, the case “probably would have been addressed as a matter at a self-immunity hearing and it would have gone away that way.”

      But this one sounds to me like an admission that MOM has knowingly and intentionally been trying to taint the jury pool:

      O’Mara said social media will impact how a jury will be picked in the case.

      “I think that if I could do away with all media, including all social media, that I would not have it involved in a criminal case,” O’Mara said. “But that’s a fantasy that is 40 years ago.”

      • groans says:

        Gotta love that “SELF-IMMUNITY” reference!! So telling.

        That’s how the killer sees it, no doubt. And now his lawyer has ingrained that attitude so much that he can’t even speak accurately about the law.

      • Malisha says:

        “Self-immunity”? That’s when — wait, wait, let me get this straight: That’s when you can’t catch chicken pox from yourself? Like your left hand (which you are careful not to shoot) knows what your right hand (which fires one shot, shrug, smirk) is doing (“what he did”) but they shake on it so it “goes away”? That’s when you say, “He hit me first” so you can’t get prosecuted for murder? Right? :mrgreen:

      • ay2z says:

        ‘Self-Immunity’? Is that like ‘auto-immunity’?

        Your own body acts to create the immunity, automatically? Like words out of the sides fogen’s aysmetrically-twisted mouth?

        “I am immune, I auto-imunized myself with my words as say so”?

      • ay2z says:

        Since when did Lady Justice get shot through the heart by George Zimmerman?

      • Jun says:

        LOL That’s hilarious coming from Omara

        All that guy has done is gone on TV and social media trying the case and begging for money

        even with his motions, he sends it to the media, to try the case in the media, and also beg for money

        I have come to the conclusion that all Omara does is grandstand and beg for money, whether it’s for his social media and tv appearances or in his motions

        It is easy to not involve social media or the media… the state did exactly that… obviously they have no control over the people in what they write and say because it is their right… Omara and Joonyah can easily just not get involved at all but they chose to be involved in the media

  10. Jun says:

    probable cause was found

    which I am guessing educated that it was easily reached but is at a way lower level than say reasonable doubt beyond

  11. Dennis says:

    Unless I see Dzhokhar confessing on video tape, I won’t believe anything the government says.

    The Craft employee left his backpack, and the exploded backpack has the exact same white square on the top.

    The government doctored the image to make it appear he does not have his backpack anymore. Dzhokhar is holding his left arm as if there is still something strapped around his shoulder.

    • Dennis says:

      The uncle Ruslan is married to a daughter of a top CIA official.

      Now why would the FBI ask the public to identify two individuals when the FBI/CIA already knew who they were for 5 years?

      Obvious patsies.

      • colin black says:

        Dennis is this the guy the uncle interveiwed on tv screaming in the microphone?
        Saying they were born in Dhagistan or somewhere

        And shouting for them calling them a dissgrace to the family ect.
        He seemed way way weird i m o

      • Two sides to a story says:

        Some say Al Queda is really CIA-queda.

        I don’t profess to know, but we do know that bin Laden was once supported by our intel or military.

      • Judy75201 says:

        Alex Jones is as much a lunatic conspiracy theorist as Jim Marrs.

      • Dennis says:


        FYI, everyone on this blog is a conspiracy theorist because almost everyone has posted their own theories of what happened in the Trayvon Martin shooting.

        Jim Marrs is a best-selling author. At least he gets paid for what he does.

        • fauxmccoy says:

          dennis says

          FYI, everyone on this blog is a conspiracy theorist

          ok man, now you are just getting silly. i get it, you feel defensive. if you are going to spout conspiracy theories, just own it. say it — ‘i am a conspiracy theorist’.

          you must have noticed that such talk is getting you nothing but negative attention, yet you keep it up. why is that?

      • Malisha says:

        A friend of mine (a physician, and a very intelligent woman, with an extremely responsible position in the Public Health Service) said once, about something we had both witnessed in the State Court System in Texas: “I’m not saying this is a conspiracy; all I am saying is that if this WERE a conspiracy, it would work exactly this way.”

      • Two sides to a story says:

        I think we need all types of opinions to explore and discuss. There have been many incidents in the world in which people laughed at others and called them conspiracy theorists and later, these events were found to have an element of conspiracy to them.

        I do think you have to be cautious and not get lost in the conspiracy sites and believe everything the conspiracy folks say, but whenever the gov’t and military and big corporate interest is concerned, it sometimes pays to be skeptical of what they tell you if an event looks like something else.

      • LeaNder says:

        Jim Marrs is a best-selling author. At least he gets paid for what he does.

        Without going too deeply into the topic, getting paid extremely well is the core constant over the decades. That was pretty much the same already in the 19th century. Just as fiction writers dealing with the topic usually go viral.

        That said, there is a difference between conspiracy theory, and I would include the conspiracy theories on the academic level, like Laurie Mylroie for instance, and real conspiracies. They no doubt exist, since otherwise we would have no laws for them. That is the basis the the fiction crows out of.

        Concerning Alex Jones. I once researched two spectacular news items by him. Quite a bit ago now. I did this twice. I avoid him since then, and it feels to me that Jones is mainly an entertainer. And ultimately in it for the money. His target is the large audience of people frustrated with the system. From an power elite’s point of view, that’s ok, that’s ultimately harmless. The more sensational the less harmful. Takes people’s minds of matters they could really change.

        Mylroie on the other hand may well operate for more polite special interests circles, who may or may not have sponsored her Iraq conspiracy endeavors too. But maybe she was driven by something else. A real fear for a tiny countries safety that the latest new “Hitler” Saddam threated?

        And then there are real conspiracies or collusive behavior in power circles. Complex matter.

        No doubt authorities would have an interest in showing prowess in a case like that. But I also think the number of people involved in this hunt was staggering, a couple of thousand? And it is not bad either that whoever plans something similar knows this before he makes his plan.

      • Two sides to a story says:

        Oh, on that point – look for an article in yesterday’s – Saturday’s NYT (I don’t feel like digging for it and posting it here), in which officials are now admitting that in the shootout with the two bombers, most of the bullet casings found belong to officers – they only confiscated one gun from the bombers, and now they’re admitting too that likely Dzhokar did not shoot himself in the throat and that he never fired from the boat – basically, he was unarmed.

        So, there’s plenty of room for misstatements and even conspiracy to mislead the public in this case.

      • LeaNder says:

        That’s embarrassing, writes crow:

        That is the basis the the fiction crows grows out of.

    • Dennis says:

      Here is the autopsy photo of Tamerlan.

      If you still think this looks like a standard police shootout, you might need your head checked.

      The younger brother in custody also came out of the boat to surrender. How is that he now has throat wounds and can’t speak?

      • colin black says:

        Dennis the guy that found him in his boat was a civilian.
        He wouldnt have known that as he lay bleeding in the back of te boat concealed by a tarp.

        If he had a weapon or bomb to detonate he would have shot the boat owner or detonated his bomb.

        He did neither just stared into the boat owners eyes laying in a large pool of bloood but consious.
        The owner ran back to his house an phoned the police .

        And explained he thinks the suspect is in his boat laying in a pool of blood..

        So they had to safe options to negate losss of human life.
        Send a remote robot or even a kids remote toy with an open walki talkie to the boat an start or attempt dialouge.
        Second option send a couple of attack dogs in .
        May have chewed him a new one but again non fatal.
        Could have if they realy had to be gung ho Chucked in a flash bang an tazzed him at same time again not likely to be fatal.,,

        But no they chose there option an i m o they were looking to execute that boy.

      • Two sides to a story says:

        Apparently the FBI shot that boat up pretty good, from what witnesses said. They probably don’t want to admit they shot an already badly wounded and bleeding perp they could have nabbed without firing and then made up the suicide crap.

        Not that I think Dzhokar is any innocent angel – but I don’t believe he shot himself in the throat.

      • gbrbsb says:

        @colin black

        “He did neither just stared into the boat owners eyes laying in a large pool of bloood but consious.”

        Colin, I saw the interview on the CNN repeat on BBC News (or maybe Sky News) the other night here in the UK and according to David Henneberry, the boat owner, he didn’t even see the suspects face let alone his eyes! This is a typical of how rumours around Trayvon are interpreted as facts by people stating them as if they were.

      • gbrbsb says:

        But I agree with you on most of the rest.

        I too am pretty sure they could have detained him without endangering anyone. The boat owner saw him motionless and was I believe not sure he was even alive. They could have tried a siege at a distance as it was so very important to take him alive to try to find out if there were any other participants or pending attacks and they already had a helicopter above and a robot that took the tarp off. But then remember Jean Charles de Menezes over here. The police had plenty of time to detain him alive, out in the open and without endangering anyone as he walked and took two bus rides to the station, instead they chose to pulverise him in an enclosed space on an underground train in front of many passengers. And in that case it would have saved the life of an entirely innocent man. Disgraceful!

      • Malisha says:

        My son had a motorcycle accident years back. He claims that he felt himself lose control of the bike, became airborn, felt pain in his hand as the handlebars left his grasp, thought, “Oh Shit I’m gonna die,” and then NOTHING. He was picked up by an ambulance.

        The call to 911, however, came from a couple who were driving down that road a few minutes after the crash. They did not see his bike OR the crash; they saw a guy in motorcycle gear wandering around dazed in the MIDDLE OF THE ROAD in the dark who did not even respond when they got out of their car (the wife was a nurse) to see if they could help. THEN they saw the crumpled up bike in a ditch. From the time they passed him and his calculation (later) of when he left the place he set out from to ride up there, they arrived 15 minutes after his crack-up. He has no recollection of seeing them.

        It is probably not possible to know how much movement or consciousness the wounded guy in the boat had at the time he was spotted OR the time he was apprehended. Just saying…

        • They had a helicopter overhead with FLIR…… would have been possible for them to see any movement in the boat…through the tarp and into the hull of the boat…….the question is……did they see any movement out of him?

  12. LeaNder says:

    So the images we mentally stored were not from Fogen’s first appearance but from his arraignment. With O’Mara pleading “not guilty” for his client?

    First appearances are much less newsworthy?

    Another interesting little excursus into the basic procedures, functions and rules.

    Besides I am with looneydoone, sounds as if we will have an interesting article tomorrow.

    I have to admit that confronted with O’Mara’s latest hyperactivity I wondered if the writ of certiorari had the additional function to try to make Debra Nelson more compliant. If so, I hope this won’t succeed. But yes, I am puzzled.

  13. colin black says:

    What amazes me about the American legal system is how cumbersome an prolonged it is .
    Despite inheriting many of both your legal an Goverment laws rules an regulation from Britian.

    You seem to have done your best to make both the prosess of electioneering and criminall justice into a marathon .
    And with politics a never ending marathon.

    How can you expect a head of State to consentrate on running your country as no sooner is he sat in the oval office.
    He has to start worrying about mid term polling figures an start electioneering for a second term.

    I have to correct my self here as a Brit your legal process if a speedy trial right is waived is a marathon.
    Your freaking goverment prosess especialy your voteing sytem is a never ending endurence process.

    Desinged Im sure either for you to give up the will to even care who the hells in office.

    In the UK an election is called perhaps every 4 to 5 years.
    We have 4 weeks or 6 weeks max politicing an election day comes votes counted end of.

    Not in America your process never stops I have no idea w t f a caucuas is but I know I hate them an they start come rain or high water avery freakin years its seems.

    And your voteing /election ?/process starts way way in advance of voteing day.
    An the way candidates is chosen once again is way way way to weird an convaluted for me to even be intested.

    Far as I can see both partys spend half the times argueing amongst each other fighting each other to be a candidate .
    Loads of people we have never heard of.

    Then when there finished slitting each others throats .
    They start on the opposeing party then.
    Forinstance things where far from cordial between Obama an Hillary an there respective camps.

    Before he won the nomination an then they were suddenlly best buds.
    An it never flippin stops so much so that both your politics an Criminal Justice systems have spawned a full time deicated
    Multi network entertainment industry.

    People like Nancy Grace an Doctor Phils turn whats supposed to be dignified an sombre matters at times .
    Politics an Justice that is into talking head circus events.

    Spouting any old crap to boost there rateings I honestly dont understand how you can keep up with the B S Id have to be comfortbly numb permimently.

    • aussie says:

      We have the same system in Australia, Colin, and I believe Canada and New Zealand are very similar. Of course they all know there’s an election due soon but can’t officially campaign until it’s announced. So the parties have to get their candidates organised in long before, to be ready, and they do it fairly privately as nobody cares yet. Most of the throat slitting is done behind closed doors.

      It also helps we all register to vote with the Government, not with one party or another, so a lot harder to intimidate people. The ballot is truly secret. Postal and absentee votes are allowed, but on the day no results are announced until the last polling booth closes, to not influence anyone.

      Our police are well trained, by the State, to levels a small county with 15 officers cannot do. They are not placed to serve in their hometowns where they know everybody. A scandal anywhere reflects on the whole force,so is of interest to everyone, so gets nipped in the bud sooner. And judges are all appointed. On merit. And not sent to work in their hometowns.

      The courts work much the same as in USA though. The lower court (magistrate) does the small cases, sends the big ones up a District Court with a real judge. There’s a version of Miranda and a right to remain silent. Sentences are a lot lighter, so there’s less fighting tooth and nail to not get convicted = no rubbish like O’mara’s doing. No death penalty. No using the threat of it to make innocents plead guilty, either.

    • Dennis says:

      I don’t have any problem with Nancy Grace. It is her job to inform the public of the evil monsters like Casey Anthony and Jodi Arias.

    • Two sides to a story says:

      The US definitely need limits on campaign time and dollars spent – it’s turned into a very expensive circus that I’m sure our founders never intended.

      And the privatized penal system is a sham as well.

    • Plantain Republic says:

      And yet nearly the ENTIRE rest of the world is captivated by us, and most (especially Canada and other english speaking) countries literally hang on our EVERY word and action. If it were not so, this blog (and others) wouldn’t be so frequented by non Americans. But yet, it is. Maybe it’s just that we’re a product of our British forefathers.

  14. looneydoone says:

    “Choice words” for O’Mara tomorrow 😉
    I can hardly wait !

  15. Xena says:

    Lots of info to take-in, professor. Thanks for all the time you put into this.

  16. willisnewton says:

    The feds may have a difficult time proving murder charges against this teen absent a confession. His older brother seems to have been the one who had the only handgun recovered, probably held the triggering device for the bombs and also it seems the brother was the one to claim to the carjack survivor that he was the bomber, before the younger brother was in the car.

    It seems clear that the younger brother was an accomplice at the scene of the bombing, and also likely guilty of being present during the kidnapping and on the scene at the firefight with the police where his brother was killed, but it’s equally unclear he ever had a gun, detonated a bomb or threw any improvised devices at police.

    What does such a person get charged with, exactly? Criminal conspiracy? I’m not a lawyer but curious all the same. He’s going to prison and possibly to death row but as what?

    • gbrbsb says:

      It is normal to jump to conclusions in such circumstances, but IMO the intelligent option is to wait until more information is available and confirmed because I for one think there are many things that don’t add up. And I am NOT, repeat NOT, a conspiracy theorist. That Tamerlin planned and set this up there appears to be little doubt, but from accepting this to accepting he convinced his teenage brother, a promising student, from 9 years old an American to all intents, not very religious according to his peers, to in a few days take up deadly arms and embark on a suicide mission, well, either both are psychotics or irremediably depressed to such a depth as to make life not worth living, which of course could be the case, as it appears to have been with Columbine, or this is out of the league of international/Islamic terrorism and more in the realms of home grown mental health issues whether Muslim, Christian, or atheist.

      Could it be the younger was not fully aware of what was going on and what his brother was immersed in and planning? IMO this is not your run of the mill Islamic terrorist attack. We are told Dzhokhar confessed but we are likewise told there was an hour long gun fight with him at the boat before he gave himself up, yet no gun was found! There appears to be a lot of misinformation, which brings to my mind the notorious terrorist trials of the Birmingham 6 and the Guildford 4 and Maguire 7 of the UK. In both cases the police were desperate to prove their competency and get a conviction, so much so that they invented or hid evidence, causing an injustice for many years before all convictions were quashed and the truth of the set up disclosed, but at least we don’t have the death penalty where an error is finite and irreparable. Just saying and with all the usual caveats, IMBW, IANAL, IMO, etc.

      • fauxmccoy says:


        just wanted to pass on this article about how a criminal dyad operates (typically) and the personality types required to commit to such a scheme. something in your words (this comment and others) reminded me of this and i thought you might find it interesting as well.

      • LeaNder says:

        Interesting, fauxy. Chilling too.

        The boys videotaped themselves at an afternoon of target practice with several friends six weeks before the attack. They shot up a bowling pin and then a tree trunk, “Imagine that in someone’s fucking brain,” Eric said. They all laughed, but only he and Dylan got the real joke.

        • fauxmccoy says:

          @leander who says

          Interesting, fauxy. Chilling too.

          i thought so. i had never put much thought into psychological profiles of criminals, or at least the down and dirty specifics of it. it seems that the ‘dyad’ formula, however, is fairly well understood, compared to the ‘lone wolf’ types. i just found it very interesting.

      • Two sides to a story says:

        A NYT article yesterday – Saturday April 12 has anonymous authorities stating that there was no weapon fired by Dzhokar at the boat and also the “gun battle” with the two brothers has a preponderance of shells fired by police. Also mentions that Dzhokar likely did not shoot himself in the throat.

        • gbrbsb says:

          I haven’t read that article but on the 24th the Washington Post already published “Boston suspect had no firearm when barrage of bullets hit hiding place” which noted how the FBI were’t sure what prompted the gunfire at the boat, possibly the “fog of war”.

          Not promising at all considering it was so very important to take him alive and but for fibre glass we would have lost even the chance to try to find out from him how this all came about. And IMO not understandable either because with their shields and bullet proof vests, a helicopter, a robot, and the distance at which they could set up a siege, I can’t see there was any real danger and a barrage of gunfire was hardly going to stop the boy from blowing himself up, more probably ignite any bomb he may have had.

      • Two sides to a story says:

        *Whoops – April 27 NYT article.*

      • LeaNder says:

        fauxy, I once met Evelin the little fire devil, I noticed one really prominent trait in her. Love to control and control over others, it was visible in many seemingly not import ways. Evelyn was an arsonist.

        I try my best, but I think it cannot be done shortly. My encounter with her haunted me for quite a while. And strictly the story needs the setting where we met. An art project on the vast areal of a psychiatric clinic. when it was built in the early 20th century– it officially opened in 1912 but some of the buildings are older and were used before–it was the largest psychiatry complex in Europe at the time. Huge brick building up to high security tracts. I think this may be the image were the most dangerous offenders were kept. Very, hard to find images. There are very different people on the premises, mentally ill, mentally challenged, and the forensic psychiatry for the mentally ill offenders. Evelyn belonged to the “mentally ill offenders”.

        Evelyn was an inmate in the more open parts of the forensic ward, as we call it over here, at the time. She could move around freely in the daytime. And she did something called occupational therapy in the bureau of the art project, in one of of these buildings. it was quite interesting to talk with her, and to learn a bit about the basic rules, like if you informed on something someone who broke the rules it brought you benefits, (I consider this rule sick, but it surely is much more easy to control many people if you get them to watch each other) she was not stupid but in the many therapies she did over the years this essential feature seem to have survived pretty unharmed.

        Let me give you one tiny example, there are many, many:

        Most of the time I was alone in the huge building from the time Evelyn left at 5 p.m. But sometimes there were groups of art students with their teachers that lived there for a week. Among them more sensible souls like me. Two girls from an art class from Scotland e.g. where horrified about what place they were in.

        The art project gets food from the kitchen on the premises. One of Evelyn’s jobs was to order that food. Inform the kitchen who many people needed what, which was then delivered to the doorsteps next morning. Where she picked it up and put it in the kitchen on her way to the bureau when she came in at 9 a.m in the morning.

        The Scottish students where obviously quite unfamiliar with the turnip cabbage/kohlrabies (as we call them). MInd you at that point there was a variance of vegetable and salad, and of course bread and so on. I noticed immediately that the Scots seemed completely unfamiliar with the kohlrabies, and obviously would prefer something else. So i told Evelyn to not order it for the next day. The next day all alternatives had gone. Only turnip cabbage nothing else. I asked her why she had done this. She was evasive. The same evening I went to the kitchen, and asked the people what Evelyn had ordered for the English students in the art project. They only want kohlrabies, she told us, was their answer.

        I leave out the story, when Evelyn returned one night to tell me how and why she set a house on fire that killed a whole Turkish family except two girls who had jumped out of the window. But since the fire was in the hallway, I assume a wall of fire must have mowed down the others if any of them had happened to open the door at the time the girls opened the windows.

        I was alone in the huge building that night. I couldn’t close the door up beyond the roof were the bedrooms are i . I suddenly heard all the noises like the faucet dripping in the kitchen in the whole empty house. Whenever I tried to close my eyes a wall of fire confronted me, it confronted me with eyes open or close, and suddenly I realized what the more sensible souls than me had felt before.

        But this is only a tiny part of Evelyn’s story. She also loved to set the huge trash receptacles you find in some cities for the bigger buildings on fire. When she did this, she constantly moved them closer to the houses. She wanted to produce what she produced: ever increasing fear. After a while the police discovered the pattern and caught her. They didn’t know about the above arson at the time.

        After my encounter with Evelin Dolata, I went to the criminology department since I wondered if the feature I had observed was an accident. And it seems to not be.

        And you know what. I just found one entry on Google and wondered if Evelin has found religion. a link to the magazine of a Protestant church in Bedburg-Hau. That’s where the huge psychiatry complex is. No, she died in January or February 2010 at the age of 49. I have to ask the Artoll people what happened, maybe they know.. R.I:P. fire devil. She was about to leave in 2007. Odd.

        • fauxmccoy says:


          very interesting and creepy encounter there. i, too, have found myself having conversations with very disturbed individuals – i am fascinated and repulsed at the same time. i like to think it is my background in anthropology that keeps me talking to them or else it is my own perverse fascination.

          too bad the scottish girls were unfamiliar with kohlrabe. we have it here too, mostly at healthfood stores. i have to wonder about the kitchen facilities in such a place – institutional food being what it is – as well as letting ‘dear, sweet’ evelyn delivering food. that in itself is scary enough.

      • LeaNder says:

        Correction: But sometimes there were groups of art students with their teachers that lived [forgot the most important part: worked there] there for a week. Among them more sensible souls like than me.

        The Scots were my favorites much better than the German class. Some real geniuses among them. Fascinating work.

        Bit yes, some of the girls felt threatened. I was puzzled someone could feel threatened by the people around initially. I hadn’t spent a minute reflecting on any threats before. And the horrible night was more a psychological nightmare. The realization what had happened. Something Evelin whisked away with: Even the judge said that probably the girls caused the dead of their family, when I tried to talk with her about it the next day.

        The only thing of real interest in there is the psychology of these people. Their history too. But I never felt threatened.

        Yes, the intersection of criminology and psychology is highly interesting. At least for me.

    • LeaNder says:

      According to the affidavit, they could observe the movements of both on the scene on several security cameras. At one point they separated and Tamerlan went to the site of the first explosion. The younger one, Dzhokhar, to the second, where he put his backpack down and left it there fiddling with his phone. That seems to have been at the time when people’s attention turned in to direction of the first explosion. If crime scene forensics show that the backpack contained the bomb that exploded, that’s strictly pretty much all they need, no?

      What I find pretty odd is their behavior after? Why hijack a car? I read an interview with the guy in the Boston Globe. Stranger than fiction, but there you go. Ultimately this guy escaped and informed the police. His Mercedes could be traced GPS.

      Do you think they could have simply picked two at random?

      I hope Dzokhar survives, without death penalty if you like, to tell us his story. The right web had this link in his newsletter a couple of days ago.

      And Putin claims he informed the Americans about at least the elder, I don’t watch much TV, but was told it was a news item over here.

    • aussie says:

      In Australia, if you were in any way involved in a crime which resulted in a death, you get charged with murder. This has been applied a few times to youths sitting in a car while their companions robbed a convenience store and fatally shot the clerk, even though they did not know the robber was armed and thought he was only going to “rack” (shoplift) some snacks. (Of course in some cases they are not convicted).

      I’m sure there’s something similar in the USA; I’ve certainly heard of innocent passengers being charged for drugs found in a car whose owner was just giving them a ride to work.

      In Dzhokhar’s case, he knew what was going to happen: death or serious injury was the expected result of their actions, and I believe he placed one of the bombs. As he is likely to get close to the maximum penalty anyway, it wouldn’t make much difference whether he’s characterised as the mastermind, or as the naive easily led youth he appears to be.

      • Malisha says:

        In the US too. I met a woman who, as a 16-year-old, told three of her friends where to FIND a fourth friend. The three found the fourth and killed him. She did 37 years for murder.

    • colin black says:

      It doesnt matter even in State law a person is guilty of Murder if they know there co accused was armed an intent on useing the weapon to harm maim or kill.
      Its known as acting in concert you dont have to pull the trigger or plunge in the knife or weild the hammer .
      Or detonate the bomb your just as guilty in the eyes of the law.

      And this guy will probably face Fedral duristiction in wich case they need less evidence to convict.

  17. Malisha says:

    It has always amazed me that state courts clip corners as much as they do, when the basic ideas (laid out fairly clearly in the federal court procedures) are logical and workable. One professor of constitutional law whom I knew in the past (prestigious guy but one who allowed his very conservative politics and Roman Catholic religious background to interfere with his cognition because he was so much “into” authoritarianism) attributed all this to one simple (obviously oversimplified) thing: “There are too many turkeys on the state court benches!” he would exclaim.

    It turned out (I have looked at this question with the layman’s eye view for 30 years now) that his explanation was ignorant, at best. What occurred, in my humble (yes I mean that in this context) opinion was that the state courts became little fiefdoms, actually unconnected with the states they allegedly served. The smaller, the more pronounced was this problem and the more dangerous the court to the “stranger in a strange land.” After all, the federal courts really DID have some “Big Brother” (DOJ) in actual operation whereas the state courts had only Big BrotherHOODS. So in a place like Texas, Florida, Virginia, Colorado, Michigan — you ended up with what would have been seen as “rogue courts” if they were in the federal system, but they operated their Star Chambers unmolested in the kingdoms they operated in. Only if there was some kind of massive nation-wide protest, as in the Trayvon Martin Murder Case, could the state court corruption be temporarily short-circuited and could real procedure begin to prevail.

    What do you think about this?

    • In general, state court is grab ass circus ball in the park compared to Federal Court, and also, the Federal judges have more power. Speaking for Fred, who will be back online to work on tomorrow’s post in a bit, he was not exposed to the corruption in Federal Court in Washington that you speak of in other areas. Rather, it was world-class law.

      Those Federal judges wouldn’t put up with Mark O’Mara Lawyer Circus for five minutes. That guy is off the chain and needs to be reined in with meticulous documented, sourced firmness. Since it’s state court Judge Nelson will have to refrain from any tempting urges to say the sorts of things a Federal Judge might say. But, she needs to get control over the situation to keep O’Mara from running that show with constant demands for money and other crazy ass stuff that has nothing to do with preparing a defense.

      Frankly, if I were George Zimmerman I’d fire the guy. He is acting like a deranged fool, plus he doesn’t seem to have sense enough to keep that pretty transparent bigotry problem of his on the downlow. He also has motions with deliberate misleading or false statements that are only a couple of google clicks away from throwing right back at him, does he need a head CT scan or something?Did he miss the memo about a murder 2 charge he will be defending in 6 weeks? Who will he be attacking with unsourced, unquoted rambling screeds on Monday? He and his local paper with his two biased hack journalists aren’t fooling anyone who has basic common sense. He ain’t in ‘Kansas’ anymore on this one. What on earth is he thinking?

      • Xena says:

        As a legal researcher, I prefer the federal court system. While each district may have local rules, and some judges general orders, Federal Rules are the same nationwide. It’s much easier to research. I also find that clerk staff is much more professional and knowledgeable.

        • Oh, thanks for that, I have heard about the rule numbering as well, and Fred would agree with you on the professionalism as well. Totally different. The other interesting thing is, the inmate populations have a different approach and culture also. Usually state and Federal inmates are separated- either in separate facilities or in separate units in the same. They have a serious approach, and are often serving lengthy sentences. They really don’t want to listen to the likes of state pain-in-the-ass inmates serving short sentences for stupid stuff and complaining about it. So, the inmate populations don’t mix either! The line goes all the way through the system.

          • Xena says:


            …really don’t want to listen to the likes of state pain-in-the-ass inmates serving short sentences for stupid stuff and complaining about it.

            Some years ago I assisted an attorney with a criminal case in the federal court. It was a non-violent crime — bankruptcy fraud. The defendant was sentenced to 3 yrs in a federal prison where there was a tennis court. She thought of it as a paid vacation.

          • Oh, totally, I spoke to someone who did five years in Federal prison once and she loved it, would do it all over again for sure. Some of the work programs are really good also. People actually can make constructive use of the time.

            It is important to note that in the Federal system there are six or so levels of prison/detention and they really vary. The Club Fed type work camps are at the bottom and the theater screens and tennis courts, that we hear about people enjoying.

            The fun ends there. The rest of the prisons cannot be misconstrued this way. There is only one at the very top- ADX Florence (supermax), the ‘Alcatraz of the Rockies’ is considered one of the most secure prisons in the world, and supermax detention is a very tough way to do time because my understanding is, it is cement solitary, for lengthy periods of time, years, in some cases.

            Then there are others just below this that are historically notable for being rough places:USP Leavenworth (The Hot House) in Kansas, and USP Marion in Illinois come to mind. There are many others and the Federal BOP system has its own way of naming and classifying their facilities. It is an interesting subject, many different levels and ways to do Federal time, but Federal prison time is very rough for men who are doing Federal time for violent crimes. When a new inmate arrives in one of these places, the Federal inmates are very savvy, won’t tolerate any scamming bullshit whatsoever, and even on a good day, it’s a challenge until a person is established, from what I read about Leavenworth, for example.

      • Sorry, to clarify, it is the Federal inmate population that is more serious, with lengthier sentences, in general. The third inmate division in culture is between state and county inmates.

        What is a real mess is, with mass incarceration, county jails are becoming state prisons, and state inmates are warehoused in cement in county jails for years at a time. This is debilitating and can be permanently mentally as well as physically disabling, as county jails are extremely physically limiting in space and are designed to be for very brief stays, days at most. That one hour of exercise each day? What a fucking joke. The county jail I was in here, hell they kept us packed in their cement tomb for months at a time without any exercise time.

        The towns love to warehouse state inmates for years at a time in cement because the states give them money for the state inmates. It’s utter bullshit and an Eighth Amendment violation, straight up. The cash cow warehousing town money hungry greed mongers could give a shit less if someone comes out of their cement hole years later with the thousand-yard stare and inability to function. They don’t give a fucking shit that that warehoused inmate never received a day of treatment, a single class or program and was never allowed to work or prepare for release. They had no problem lying to the jury and the public about how that inmate would go to a prison and be able to make use of their time to be released to a more meaningful life. When all the while they were lying they knew they were going to warehouse this person in a tiny cage with less space than a dog at the pound. They lie and they sleep fine because there’s money in it, and that’s all that matters to them.

        • Xena says:

          @Crane-Station. In the county where I live, some accused spend 3 to 5 years in jail awaiting trial. They can’t make bail and when I say “bail,” it’s not large amounts — they average $250 to $500. They do not qualify for any programs. Neither are all the arrests on charges for violent crimes. I know of one man who has been in the county jail for almost 3 years awaiting trial on the charge of attempted burglary without a weapon.

          Wisconsin has a program for inmates who are employed. They leave at a certain time for work, and must return by a certain time. But, they also pay a portion of their salary to the jail. That is generally for sentences of one year or less.

      • You are so right. Detention time is county jail time, and they love to drag this out, so it’s just crippling dead time. People ‘detained’ or doing state time in county jail are doing some of the hardest time there is, and it’s always nonviolent harmless inmates, very very often mentally ill inmates as well. There were times I wished I had killed someone, hell I would have gotten less time and gone to prison and done something constructive. Sounds crazy but it’s true.

        I never dreamed that there would be a time in my life when I would beg to get to a prison but I did.

      • Two sides to a story says:

        I worked for a short in a county medical office that had nothing to do with the jail, but happened to be housed in the same building as the county jail. The conditions in that jail were horrendous and the energy throughout that building was very, very weird. I felt as if I were being broiled alive or something every time I went to work. Very oppressive.

    • boar_d_laze says:


      Your analysis is a vast oversimplification and largely wrong.

      Almost all criminal prosecution was the traditional purview of State, and not Federal courts.

      The Constitution does not allow the Federal courts to supplant the State courts, unless a Federal law is at issue.

      None of the Rights provided for in the Bill of Rights, including the criminal rights in the 4th, 5th, 6th and 8th Amendments applied to State criminal defendants until the passage of the 14th Amendment.

      Almost all criminal prosecution is still State, and not Federal. State courts have their own rules and procedures; and as long as they are in compliance with the rights guaranteed by the US Constitution, the Federal government may NOT interfere with them.

      Prosecution by information is no more prone to prosecutorial overreach than indictment by a Grand Jury. In fact, the accused is probably better off in a pre-trial system in that he has the right to counsel, the right to hear the evidence, and the right to bring and confront witnesses.

      In my experience, there are excellent judges in both jurisdictions, as well as quite a few hacks. The Federal system may (and I stress the word “may”) have a lower percentage of hacks per capita than State Courts, but it has plenty of hacks.


      • Malisha says:

        Wow — how can I be largely wrong when what I am saying is what I have observed? As to its being an oversimplification, I wasn’t trying to write a treatise comparing the federal court system with the state court systems in globo, was I?

        I say the state court clip corners “as much as they do.” Do you think that is an observation without evidence? I say the basic ideas in the federal rules are fairly clear, logical and workable. Any inaccuracy there? Any oversimplification there? I quote a guy I knew — how inaccurate is that?

        Perhaps you argue that my opinion that “the state courts became little fiefdoms, actually unconnected with the states they allegedly served. The smaller, the more pronounced was this problem…” is “largely wrong” — I cannot show you studies because there probably have never BEEN any studies and surely no large funding source will be paying for any, but I can give you hundreds of examples, all of which are admittedly “anecdotal.” But the Trayvon Martin murder case is also anecdotal, is it not?

        In the paragraph in which I speak of DOJ as compared to the “BrotherHOODS” of the several states, I am not advocating that federal courts take over the jurisdiction of state courts; I know they are separate and I know that most criminal prosecutions are state matters. So where am I wrong and how is this objectionable?

        BTW, there are little pockets of corruption in federal courts too. I think that they are slightly less protected than state court corruption rings, and one of the reasons for that is that the federal public defenders are, by in large, a great group of attorneys. Often the state court public defenders are not very zealous and they are more deal-makers than defenders.

        But you may still think my opinion is an oversimplification and largely wrong. If I were wrongly accused of a crime I’d rather be in the federal court system than the state court system, unless of course I had really bad luck (past the bad luck to be wrongly accused in the beginning).

      • boar_d_laze says:

        Federal Crim Pro doesn’t stand as an example for State courts because State courts have been doing it for so much longer. The Federal Courts didn’t do much in the way of criminal prosecution until fairly recently, and Fed Crim Pro, including the cumbersome, unfair, and outmoded grand jury model, mirrors a few eastern States (NY and Mass in particular), as it stood in the early part of the 20th C.

        I’ll grant you that the Federal criminal system is better funded than those of the States’, and that can really make a difference in terms of the quality of representation by Public Defenders.

        Some federal judges are good, some are not. Some California judges are good, some are not. The biggest problem I saw in California criminal courts is that most of the judges cut their teeth (at the very least) as prosecutors, and retained a pro-prosecution bias. The biggest problem I saw doing trial defense in Federal court was that so many of the judges had civil, “insurance defense” backgrounds, and no particular feel for criminal law.

        Judges aside, there’s nothing specially good about Federal criminal procedure that I can see; and without some specific examples of how the Feds do it better, I’m still going to say you’re wrong.

        When you look at things like Federal Minimum Sentencing Guidelines and they way they end up harming minority defendants convicted of certain crimes, you’re not just wrong but very wrong.

        Certainly racism happens in the States, but it’s codified in the Federal system.

        My conclusions came are largely based on my own career which began with an externship at a California Court of Appeal (2d. Dist.), was followed by a clerkship for a Federal appellate justice (9th Cir.); included trial — mostly white collar — prosecution and criminal defense in California courts; trial (still mostly) criminal defense in Federal courts; criminal writ and a wide variety of appellate issues in California Courts of Appeal and several Federal circuits, including the Supreme Court of the State of California (but not the US Supreme Court).

        Just an opinion, but one honestly come by.


      • boar_d_laze says:


        Let me add an apology. In rereading my first post, it definitely came across too strong. It looked as though I were trying to pick a fight, which I’m not. Even though we disagree, I respect you and your opinion. I wrote in a way that seemed disrespectful, and I’m sorry for it.

        That said, it would be good if you could supply some specificity, history and/or “legal reasoning” backing up your opinion that Federal crim pro is superior to State crim pro — particularly in regards to ways the Federal system prevents abuse by particular judges that State systems do not.

        It would also be nice if you could fill in a little regarding your experience. What kind of experience? Which kinds of cases?


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