Dear Son,

As your enthusiasm builds for leaving home and going off to college in a few months, I want to talk with you about having to make on-the-spot moral, legal, and social decisions when you are on your own.

As you know, the news has been filled with reports and commentary about the alleged incidents at Penn State involving former Defensive Coach Jerry Sandusky sexually molesting disadvantaged young boys who participated in his charity. He has denied the charges in the indictment, and due process of law will determine his guilt or innocence.

Up for discussion in the unforgiving public forum are the actions of Assistant Coach Mike McQueary who, on March 1, 2002 at 9:30 p.m., while he was a grad assistant entered the practice facility to obtain some video tapes to review. He heard noises from the shower area and went to investigate. According to reports of his grand jury testimony, he was “distraught” when he saw Sandusky raping a ten-year old boy.

It is unclear what happened next. McQueary apparently made no mention in the grand jury about intervening to save the child, but in the last couple days he has hinted that he forced Sandusky to stop. He then called his father, with whom he had a close relationship, for advice on what to do next. Then he contacted Coach Joe Paterno and reported the incident. Later he also told two other Athletic Department officials. These three, however, say that his report was not detailed enough to cause them to take further action of some kind.

It is clear that no one reported the crime to the police or to Child Protective Services. Allegedly Sandusky’s access to the children and the Penn State facilities was not restricted, and he inflicted other such assaults on children during the nine years that have followed. Both Paterno and McQueary continued to publicly support Sandusky’s charitable activities.

The public reaction to McQueary and Paterno has ranged from commendation to vilification. Paterno, probably the most revered football coach in America, was summarily fired and McQueary, perhaps because of his legal protection as a whistleblower, has been placed on paid administrative leave. Probably neither will have any connection to college football again.

The issue worth thinking about is whether McQueary’s response, whatever it was, presents a moral and legal lesson for the rest of us. In my generation a woman named Kitty Genovese was stabbed to death in New York’s Central Park while dozens failed to take action when they heard her cries for help. Social psychologists have labeled the phenomenon diffusion of responsibility or bystander effect, but the bottom line is that, when confronted with a moral imperative, people who could have saved her life failed to act.

McQueary has been showered with the moral opprobrium of the commentators who have assumed he failed to stop the assault. They have hastened to assure their listeners that they would have assuredly stepped up stopped the violence and called the cops. Jane Turner, an FBI psychological profiler who specializes in child sex crimes, however has indicated that in her experience most people would have walked away as McQueary is alleged to have done. Turner said:

“It takes enormous strength to put one’s moral integrity over your personal inclination to protect fellow colleagues who have committed malfeasance, or criminal activity. The FBI, like Penn State and the Catholic Church, are entities that allows their personnel to report allegations up a chain of command but those in positions of power or change, fail to take immediate or strong actions. It simply boils down to the fact that those in power have a stronger desire to preserve the reputation of their institution, than taking the road of truth or justice. Entities like Penn State, the Catholic Church and the FBI all share something in common; they operate in an insular world where rules or laws that apply to everyone else, do not apply to them.”

Early in my career as a prosecutor, my boss Len Gilman made it clear to us that our job was to do what was right even if we as individuals or our office had to pay the price of being embarrassed or worse. And a couple times we were.

Assume for the sake of this letter that Mike McQueary is neither a hero nor a villain but just a guy who hesitated, as a majority of others would have in 2002, when suddenly confronted with a terrible moral issue. Just a guy who knew that the price to be paid for more aggressive action would be to jeopardize the head coach he idolized, the powerful institution and football program to which he was so loyal, and the future he wanted so badly.

So he called his dad for guidance, then Joe Pa. And that apparently was it, for nine years, until it hit the fan, as it seems with increasing frequency to do. If we have learned nothing else from the massive tragedy that has so damaged the Catholic Church, it is that doing nothing, protecting people and institutions that seem so invulnerable at the time, will usually be disastrous for everyone concerned. And now a legend will die, a great university tarnished for a generation and saddled with millions of dollars of civil settlements, and an apparently otherwise fine young man’s dreams dashed forever. Worst of all, boys who had tough enough lives already were damaged by a man who should have been isolated so he couldn’t harm others.

Son, I hope you always have the luxury of time for meditation and parental guidance before you have to act on a moral issue. But if you don’t, consider this your father’s advice.

Demonstrate the courage I know you have to step up, do what is right, protect the vulnerable, call the police and support them in any way they ask. If there is a price to pay, we will share it together and you will be compensated by the respect of your family and friends.

Oh, and call your mother once in a while.

Dad

How many books have you read recently that actually changed your thinking on opinions you have held near and dear for decades?

Not many, I wager. In my case, damn few. Like most people I read for entertainment, education, reinforcement, seldom to challenge firmly held views.

As a three-decade drug prosecutor, I admit to some biases and assumptions, which place me among the anti-drug ranter ranks.

Not an “Okie from Muskogee” (Merle Haggard 1969) ranter, but one who is nevertheless skeptical of policy wonks, social “scientists,” and any “expert” who claims to have the answer to the cluster you-know-what which drug use, trafficking, and enforcement have been for the last 80 years in this country.

The book “Drugs and Drug Policy; What Everyone Needs to Know” by Mark A.R. Kleiman, Jonathan P. Caulkins and Angela Hawken (don’t let the deadly title scare you off) challenged some of my views and probably some of those of the readers of this paper. I haven’t converted to a legalization advocate or anything. Nor are the authors of this book.

But they do ask and try to answer some tough questions that permeate this confusingly complex subject. Or else they admit that the question is presently unanswerable.

The book avoids the vocabulary employed by experts in the field that is intended to demonstrate that their academic expertise puts them on a higher plain than the rest of us.

Even technical terms like capture rates and demand elasticity are deciphered in plain English sufficiently to make the point.

Kleiman, a professor of Public Policy at UCLA,   and his two partners, don’t claim to have all the answers or that progress will be easy. But they do ask the right questions, and their answers and discussions can benefit anyone connected to the subject—users and enforcers, policy makers and implementers, innocent bystanders and citizens.

Some of their suggestions do not pass the squirm factor, some seem impractical, others unlikely to ever claim a consensus. But a good number seem worth serious consideration and debate, including a few that concern law enforcement. Here are a couple:

1. Focus enforcement, especially the sanction of longer sentences, on traffickers who use violence and destruction, menace neighborhoods, and cause collateral damage to others. Conduct, not drug volume, should drive enforcement. Dealers not in these categories should be subject to routine attention and sanctions.

2. Eliminate long-delayed punishments for drug dealers like ineligibility for public housing, educational loans, and the like. These serve only retribution and make it more difficult for those who want to join the mainstream.

3. Reduce the number of dealers in prison from the present half million. Reducing sentences for non-violent, run-of-the-mill dealers would have no effect on drug supply and would free up more resources to target more culpable dealers. Plus reduce the pressure on governments to transfer education dollars to prisons.

Drugs and Drug Policy proposes over a dozen other suggestions in areas like treatment, health care, international supply control, harm reduction programs, alcohol and cigarette taxes, consumer marijuana cultivation, and a bunch more.

There will be the temptation for policymakers to applaud the ones they already agree with and reject the others. As if the status quo is so rosy we can’t afford some fresh thought on the subject.

Not all wonks are created equal. These three are worth reading with an open mind.

The case for and against marijuana legalization continues to be a hotly debated issue. Weighing in, even in a subjective and limited way, is tempting after working on a history project about smugglers in the 1970s and the agents who pursued them.

Here’s the pros and cons as I see it.

There is good reason to conclude that many of the trends favor some kind of decriminalization or legalization in the United States. Many point to the growing number of states that have authorized Medical Marijuana as a key sign that we’re moving in that direction.

A dozen or so states have legislatively instituted some form of decriminalization or “harm reduction” program for use or possession of small amounts. Drug policies in several European countries such as the United Kingdom, the Netherlands, and Switzerland, have established such a system.

Millions of dollars are being invested in a wide variety of public relations and lobbying activities, especially in states where referendums are pending. The arguments in favor of this development seem easier to grasp and calculate, and the well-financed campaigns have achieved some success in promoting this agenda.

On the other hand, proponents of the status quo seem less focused and their arguments more speculative. At times, the assumption of the hippie dealers of a half-century ago, who predicted the drug would eventually be legally available, seems a strong possibility.

Several studies in the 1960s and 1970s concluded that it did not pose a significant health risk to light or moderate consumers. They recommended decriminalization by removing criminal penalties for possession of less than one ounce and by reducing the severity of the penalties for distribution. The mood of the time was represented in 1980 by the combination of the highest level of estimated users (33%) and lowest perceived risk (14%) in some demographic groups.

The other arguments in favor of a more permissive policy include the pragmatic assertions that legalization will: Increase tax revenues; reduce ancillary crimes such as theft by users; reduce the number of those incarcerated and resultant prison costs, which have become an increasing burden for cash-strapped states; eliminate some of the opportunities and temptations for corruption at home and abroad; reduce the costs to the criminal justice system; and allow police, prosecutors and courts to concentrate on more serious crimes.

If we follow along those lines of logic, we could allow for the regulation of the purity of the drug by the Food and Drug Administration, thus reducing the dangers from adulteration, and reduce the violence in Mexico and elsewhere among competing organized crime groups. Some of these points have varying degrees of merit.

There is, however, another side to this argument, one that advocates maintaining the status quo legally because the drug poses a danger, which could escalate if legalization resulted in more widespread use.

This seems intuitively likely since legalization would make it cheaper and more easily available, although there is little scientific evidence to support this conclusion. Legalizing marijuana would seem to send a clear message that its use provides a relatively safe form of recreation, not unlike consuming alcohol.

The experience in Alaska shows just how difficult policy making can get on the issue. In 1975, the Alaska Supreme Court held in Ravin v. Alaska that under the right to privacy provision of the Alaska Constitution, the state could not interfere with the possession of marijuana for personal use by adults in their own homes.

A study by the University of Alaska in 1988 found that teen use in the state was double the national average. Overall usage (about 10%) is similarly higher than the national average (about 6 %). A voter initiative re-criminalized possession in 1990, and two referendums to decriminalize have failed.

However, in 2003 the Alaska Court of Appeals reaffirmed Ravin in Noy v. Alaska, and the Alaska Supreme Court denied the Attorney General’s petition to appeal.

It is important to recognize that the marijuana of today is, in significant respects, a different drug than that smoked in student apartments and dormitories in the 60s and 70s.

Its potency, as measured by the THC content, has greatly increased from as low as one or two per cent to as high as 15% today.

Some medical studies have shown that this change greatly increases the risk, especially for heavy users, to lungs, reproductive and immune systems. It also increases the heart rate and can impair motor skills and the ability to concentrate. These health dangers provide are more support for deterring its availability. The Drug Abuse Warning Network (DAWN), which keeps track of marijuana-related emergency room visits, reports that this statistic has risen steadily in the past three decades.

A separate but related argument against legalization is the acute problem of use by America’s youth. Marijuana is the most frequently used illegal drug by teenagers. The great majority of them believe that it is far less dangerous than other substances. Treatment programs report a close association between the use of marijuana and other drugs. The long term health effects of this high potency marijuana on young minds and bodies have not been fully studied and has a particularly dangerous potential. Making it legal and more readily available can only compound this danger.

Some of the arguments in favor of legalization seem doubtful, such as increased tax revenue. A recent study concluded that the $15 billion collected in taxes on alcohol sales represent about 10% of the social costs from its use. Perhaps that percentage would be different with marijuana, but with the increase in the number of Emergency Room visits connected to marijuana, the social costs would be appreciable and would surely wipe out extra tax revenue.

The argument that a more permissive policy on marijuana would reduce crime in general and law enforcement costs in particular also seems questionable. We would still need law enforcement to control trafficking to minors as well as other black market enterprises. Increased use would also increase traffic accidents. The National Institute on Drug Abuse estimates that user-drivers are 2.5 times more likely to be involved in an accident.

Another argument is that America’s prisons have substantial numbers of inmates convicted of use or simple possession. This is certainly not true in the federal system where the percentage is minuscule compared with other categories, and most of these involve misdemeanor pleas down from felony charges. Many states have the same situation.

For example in Michigan, of the 47,000 inmates, only 15 were incarcerated for first time possession charges. There are, however, states where the number of possessors of small amounts are considerably higher even with the recent trend to emphasize treatment over incarceration.

There are other arguments against the increased availability that would result from legalizing marijuana: increased health care costs, health risks to pregnant women and as a result of second hand smoke, harm to the economy from loss of labor and reduced work ethic, exacerbation of mental health symptoms, reduced worker productivity, to name a few.

Criminal penalties and law enforcement policies on marijuana have not always been rational, consistent or just. A strong case could be made that the wild claims of danger in the early years, unreasonably long prison sentences, and the complete absence of an integrated program of education, enforcement, prevention, and treatment, have each contributed to the social costs and the poor public understanding of the dangers posed by legalization. The government simply has little persuasive credibility, particularly among today’s youth, on the subject.

Similarly, even after a half-century of being the most prevalent illegal drug on the planet, few comprehensive studies by objective entities have contributed to this search for the truth about the pros and cons of legalization and decriminalization.

The fact is that we do not know the answers to the relevant questions.

The United States is under assault in the 21st Century by a host of threats — social, economic, spiritual, educational .

The country desperately needs a well-motivated and educated citizenry, particularly from the next generation, to face these threats.

So in the end, for now, I lean toward the status quo until we know more. To add one more challenge, even one based on the speculative potential social costs of a permissive drug policy, would seem to be a risky decision in perilous times.

If you haven’t seen the Oscar-nominated film Winter’s Bone yet, put it on your to-do list. The movie is about a seventeen-year old Ozark girl who searches for her fugitive father, a long time meth maker, among the dangerous and bleak terrain of the mountains’ criminal clans who manufacture and sell the drug.

Not only is the movie powerful entertainment, but it serves as a warning of the resurgence of the meth scourge, which is once again sweeping across the country, especially in the South.

In 2005, the Combat Methamphetamine Epidemic Act imposed restrictions and regulations on the sale of ephedrine and pseudoephedrine products in drug stores.

Since these precursors, found in cold remedies, are used in the most common method of meth production, the idea was that restricting its availability would inhibit production. And it did for a couple years.

The federal statute, which went into effect in 2006, requires that ephedrine/pseudoephedrine products be kept “behind the counter” in drug stores. Sales are limited to 3.6 grams a day (and 9 grams in a thirty-day period) for individual buyers, who are required to show government issued identification. Drug stores are required to keep a log on purchases and to contribute this information to a state database.

These federal restrictions, along with specific state laws, worked and drug lab seizures were down during the period of 2005-2007 in most states.

Recent analyses by DEA and other sources, however, show that both use and production are back on the rise (Lab seizures are up 92% from 2007 to the end of 2009.), especially in certain states such as Alabama, Kentucky, Missouri, Texas, and North Carolina. Without an aggressive response, other state increases can’t be far behind.

According to law enforcement agents, there are two reasons for this resurgence. First, new production methods have shifted to smaller operations. Traffickers get around the restrictions by having numerous people make small purchases at a series of drug stores and then the quantities are pooled for use in the manufacture. This strategy, called “smurfing,” is highly profitable for the buyers and is often well organized.

Second, production has largely shifted from “super labs” in Mexico and California to small, portable “trash labs’ in which manufacturers replace cooking with the “shake and bake” method of inducing the necessary chemical reaction. For every pound of meth produced, six pounds of toxic waste results. This is typically dumped in the trash, hence the name “trash labs.”

These noxious by-products are a dangerous hazard to investigating agents and to the environment. They are also expensive to clean up.

Many law enforcement officers consider meth to pose the most vicious and intractable drug problem facing America. No other illegal drug results in the collateral costs to individuals, families and the public.

At a time when state and federal budgets are strained to the limit, this resurgence will mean lost labor productivity and increased medical and social service costs.

Other costs include law enforcement and criminal justice expenses, endangered children put in foster care, drug treatment, and lab injuries and deaths. A recent study by the Rand Corporation valued the annual costs in the United States for methamphetamine-related activities to exceed $20 billion.

So what can be done to combat the meth revival?

1. Impose stricter controls on precursors. Consider requiring prescriptions for ephedrine/

pseudoephedrine products, as Oregon and Mississippi have done. These and other steps by these two states have resulted in a 90% and 68% reduction, respectively, in the number of meth labs. These steps will be unpopular among the powerful pharmaceutical

lobby which is protective of its $550 million industry, but the human and economic costs have become unacceptable.

2. Require drug stores to use electronic reporting to log ephedrine purchases, as Missouri did in 2008. This has been shown to provide at least some limited inhibition on manufacturing operations and to facilitate the gathering of intelligence information by law enforcement investigators. The entire logbook system needs further review to determine more effective ways to discourage smurfers.

3. Increase DEA and state law enforcement resources to investigate these illusive drug operations. Inter-agency task forces with additional funding, such as the one in Kansas City, have been successful in investigating and interdicting these criminal groups.

4. States should impose their own restrictions on precursor sales and should communicate, perhaps under DEA leadership, about successful enforcement strategies. For example, Iowa has had significant success by a voluntary program of adding a “chemical lock,” calcium nitrate inhibitor, to anhydrous ammonia. Since this greatly reduces the yield of ephedrine, the theft of the fertilizer by meth producers has been greatly reduced.

5. Better education is needed, especially among youth, on the fatal effects of this highly addictive and irreversibly damaging drug on the brain, heart and nervous system. Kids have to learn that using meth is a dead-end street.

In addition to the wasted and desperate lives portrayed in Winter’s Bone, the movie also dramatizes the difficult job drug investigators have in making prosecutable cases. In addition to destroying families, the meth culture makes cooperation with law enforcement so dangerous that enforcement actions are often nearly impossible. We need to find new tools to support law enforcement in this area, for all of our sakes.

The “rule of law”—What does it mean?

For most of history since its origin in ancient Greece it has meant that the law, however it was created, rules events and relationships not the whim of the sovereign or the government.

But in this country rule of law has evolved through a gradual building process to encompass more than that—equality and certainty in enforcement and the fair and impartial adjudication of rights and liabilities.

The federal courts and the USAOs have had an unrecognized role in this process.

Today I would like to give you just a few examples of USAs and their Assistants and their contributions.

Solomon Sibley was the first USA.

In 1805 the village of Detroit burned to the ground. Sibley was the first mayor. Perhaps where we are

today he walked amidst the smoking rubble and thought as one of 3-4 lawyers in the whole Michigan Territory, surrounded by swamps and wilderness, will this place ever amount to anything?

Practicing law out of your saddlebag with almost no roads was a difficult job and his path in legal matters was also a challenge. He had a couple books on English common law and every few months he could read in Eastern newspapers the legislation Congress had passed. Lawyers were expected to use what little they had to make reasoned arguments to the territorial judges in the Common House at least until it too burned to the ground.

For much of the 19th Century, the U. S. Attorneys were almost entirely on their own, with little advice from Washington. There was no Justice Department until 1870.

There were no organized federal law enforcement investigators until late in the century. There was no codified federal criminal or civil law.

As each new wave of immigrants surged across the borders, not only did these pioneers bring their own expectations for the rule of law from other states and countries, but they also wanted the law to adapt to serve the needs of frontier life. Case by case, issue by issue, the litigants and the courts constructed the foundation of the intricate rule of law we enjoy today.

George C. Bates

George C. Bates was the fifth U. S. Attorney for the District of Michigan and he served in the 1840s and 50s. Bates had great energy and perseverance during a time of change in the district.

Cheap land brought tens of thousands of farmers and tradesmen to Michigan from the Northeast as well as

every country in Western Europe. Transportation and communication were revolutionized by such developments as the telegraph, daily newspapers, faster mail service, railroads and steamships.

The growing pains from these changes swelled the federal court caseloads to the breaking point.

Bates headed an expedition to the Upper Peninsula to retrieve a huge piece of pure copper which was being used as a religious object by the Chippewa Tribe.

Bates secured the revenue cutter Erie to accompany the rock through the Erie Canal to Washington, D.C. where it was exhibited in the Smithsonian Museum.

Bates lost his most famous case, the prosecution for counterfeiting and fraud of James Jesse “King” Strang, a Mormon leader living with his followers on Beaver Island.

Strang had declared himself God’s Viceroy on Earth. Bates led a team of Marines on the USS Michigan, the Navy’s first iron-hulled warship, from Detroit to Mackinac to arrest Strang and several others. The trial was a national media circus.

Strang, arguing religious persecution, represented himself and the other defendants and the jury acquitted all of the defendants.

Whatever his prowess in the courtroom, no one could doubt Bates’ pioneer lawyer spirit. After completing his term, he moved to California to practice law, then to Chicago where his law practice was destroyed by the Great Chicago Fire.

Almost broke, he became the territorial U.S. Attorney in Utah where he attempted with limited success to prosecute Brigham Young and his followers for polygamy.

The effort, however, contributed to the Church’s eventual realization that the practice would have to be eliminated before Congress would approve Utah for statehood.

Henry Billings Brown and Frank Murphy

Two members of the U. S. Attorney’s Office have become Supreme Court Justices, Henry Billings Brown and Frank Murphy. In 1860 Brown became the first Assistant U. S. Attorney in the district and he developed into a national expert in admiralty and patent law.

Unfortunately, he will always be remembered for his opinion in Plessey v. Ferguson, in which the Court upheld the separate but equal doctrine of racial segregation.

Frank Murphy’s tenure as an Assistant (1919-1921) left a lasting impact which affected him throughout his judicial career. As a trial attorney he learned the devastating effects a criminal prosecution could

have on a defendant and his family but he aggressively pursued violent and professional criminal.

On the Supreme Court Justice Murphy’s opinions on labor relations and constitutional rights made significant contributions to the law.

Prohibition U. S. Attorneys

The six U. S. Attorneys and the dozen Assistants who served during Prohibition (1920-1932) deserve more than the glancing treatment possible in this speech.

Prohibition was not only a failed social experiment but one which had significant and lasting negative consequences for the nation, including massive court congestion, delayed access to the courts by other litigation, pervasive violation of the law and corruption.

Nowhere in the nation were these consequences more evident than in the Eastern District of Michigan where more than a quarter of the national enforcement budget was spent. During Prohibition Detroit went from having 1,250 bars to over 10,000. The federal district court’s annual caseload skyrocketed from about 300 to almost 3,000 cases.

Although the federal criminal justice system was not perfect during this deluge of cases and rampant crime, the Herculean efforts of Judge (and former U. S. Attorney) Arthur Tuttle and the attorneys in

the U. S. Attorney’s Office kept the system from breaking down completely.

They prosecuted corrupt law enforcement and public officials, processed the flood of cases which inundated the court, and contended with the lack of public cooperation as best they could.

The ordeal did have some positive results. Many of the office management reforms they used and the development of specialized law enforcement agencies with training and modern methods, continued after Prohibition.

John C. Lehr

The longest serving U. S. Attorney in the district was John C. Lehr. He began his term in 1936 by supporting President Franklin Roosevelt’s response to the economic crisis brought on by the Depression.

Dozens of new federal programs were instituted, and hundreds of thousands of people from Michigan participated in public works programs.

This change in the role of the federal government, particularly the Executive Branch, in American life resulted in a steady increase in litigation in federal courts. The agencies established during this period not only became a powerful force for proactive government, but also introduced modern methods of administration.

One of the reforms which changed the duties and procedures of both of these offices was the independent management of the affairs of the judiciary. The federal courts had for more than a century been assigned to the Justice Department. This was an awkward relationship. Finally Congress created the Administrative Office of U. S. Courts.

In September of 1940 shortly after Germany invaded France, Congress passed the first peacetime draft in the nation’s history. Michigan’s contribution to the industrial mobilization was so significant that it was called the ”Arsenal of Democracy.”

About ten per cent of the nation’s war spending occurred in Detroit, where 610,000 people worked in factories producing war materials. This economic boom resulted in inadequate housing, school and transportation systems, along with overt racism which culminated in mob violence in June, 1942.

John Lehr’s most personally stressful cases were a pair of capital prosecutions which brought the death penalty to Michigan for the first time since 1830. Anthony Chebatoris was the first person in the United States to be tried under the new statute for bank robbery homicide.

Chebatoris shot and killed a man in a delivery uniform because he mistook him for a police officer. As he and his partner were escaping, a dentist was drilling on a person’s teeth, he hears the commotion and sees them running down the street. The dentist grabs his rifle and through his 2nd floor window shoots dead Chebatoris’ partner.

In closing Lehr called the defendant a “brutal, ruthless killer, a sly. sneaking human beast.” The defense argued that capital punishment was a relic of the Middle Ages.

After eight hours of deliberation, the jury found Chebatoris guilty and set the punishment at death.

Under federal law an execution had to take place in the state where the crime had occurred if the state had the death penalty.

Although Michigan had abolished capital punishment for murder, until 1963 the penalty was still available for treason so the condition for the state’s venue was met and Chebatoris was hanged at the U. S. Detention Farm at Milan.

The second capital case was the prosecution in 1942 of Max Stephan, a Detroit restaurant owner, who was tried in Chief Judge Tuttle’s courtroom for treason, based on his assistance of a Nazi pilot who had escaped from a Canadian prisoner-of-war camp. At trial the government’s primary witness was Oberlieutenant Hans Peter Krug of the German Air Force. Krug strutted into the courtroom wearing his German uniform and gave the Nazi salute before testifying.

Lehr’s evidence was that Stephan had provided Krug with clothes and had gone drinking with him, ending the evening at a brothel. The next day he bought Krug a bus ticket to Chicago and took him to the station. Lehr argued that Stephan was a “blackhearted traitor if there ever was one” and the jury agreed. Judge Tuttle sentenced Stephan to death but twelve hours before the hanging was scheduled, President Roosevelt granted a request for a reprieve.

The Office’s responsibilities included several hundred Selective Service cases, the Enemy Alien Hearing

Board, military land condemnations, and other litigation in support of the war effort. By 1947 when John Lehr left the Office, both it and the district court had changed significantly.

Both offices now relied on support staff members, as well as the Clerk’s Office, to process cases efficiently.

Civil cases had increased considerably, and they demanded more time and resources from both offices.

In the criminal cases federal law enforcement agencies had expanded both in terms of the number of agents and the scope of their responsibilities.

William Merrill

William Merrill was the Chief Assistant U. S. Attorney in the 1960s under U.S. Attorney Lawrence Gubow (1961-1968). At that time southeastern Michigan was one of the most dynamic metropolitan areas in the country.

The dawning consciousness of idealism clashed with the reality of racial discrimination, poverty, and the Vietnam War. This collision meant plenty of subjects for federal litigation.

The Federal Defender’s Office, Magistrate Judges, four additional federal district judgeships—all occurred during this dynamic period. The U. S. Attorney’s Office ended 129 years of complete nondiversity with the hiring as Assistant U. S. Attorneys of three remarkable women, who would become trailblazers in breaking gender and racial barriers in the legal community as outstanding jurists, Patricia Boyle, Anna Diggs Taylor, and Geraldine Bledsoe Ford.

Merrill and Gubow also modernized the way the Office functioned: de-politicization, category specialization, the beginning of proactive investigations. The realization that drug trafficking would be the dominant federal crime for the indefinite future meant, for the first time, a significant investment of prosecution resources.

With Richard Nixon’s election, the change in administrations meant Merrill had to leave the Office.

He joined a firm in Grand Rapids as a litigator.

Ironically, Merrill would contribute to forcing Nixon to become the first American President to resign from office. The period would pose perhaps the greatest threat to the rule of law faced by the country in the 20th Century.

The White House ordered federal law enforcement to greatly expand domestic surveillance, but the President and his advisors concluded that an even more aggressive effort was needed to stifle dissent. This effort included the creation of a Special Investigations Unit group which came to be known as the Plumbers Unit because its objective was to stop information leaks by whatever means were necessary.

The first target of the White House Plumbers Unit was anti-war activist Daniel Ellsberg, who was under indictment for leaking the Pentagon Papers, a top secret study of the Vietnam War. President Nixon was said to be obsessed with discrediting Ellsberg in order to silence him and to assure his conviction.

During Labor Day weekend of 1971, under the direction of the President’s top economic advisor, John Ehrlichman, and the involvement of other White House officials, five men broke into the office of Ellsberg’s Beverly Hills psychiatrist, Dr. Lewis Fielding, to obtain damaging files on Ellsberg which could be used to discredit him.

About a year later, after the related Watergate burglary into the offices of the National Democratic Party headquarters, these events began to be the subject of media reports. Archibald Cox was appointed as Special Prosecutor. Cox chose William Merrill to direct the grand jury investigation and the prosecution of the Fielding break-in.

Although it eventually became less identifiable by the public than the Watergate case, the Fielding office case actually became the key to dismantling the Watergate scandal. The case resulted in the convictions of Ehrlichman, Charles Colson, G. Gordon Liddy and others who orchestrated the break-in.

During the investigation, Merrill faced many challenges to his grand jury investigation. A sizeable segment of the American public believed that the investigation was part of an anti-Nixon vendetta.

Nixon ordered that Cox be fired because he tried to subpoena the White House for records and tape recordings and two Attorneys General refused and resigned. After Cox’s removal was finally accomplished, it was Merrill who convinced other Assistant Special Prosecutors to remain on the job rather than resign in protest. On orders from the White House, the FBI raided the Special Prosecutor’s office, but Merrill had feared such an action and had hidden key memos essential to the investigation in a safe deposit box.

Merrill and his Assistants were ultimately successful in convicting after a trial the break-in planners andoperators. Merrill’s dedication was instrumental in ending a dark chapter of abusive actions in disregard of the law and in helping to restore integrity and public confidence in the principle that no one is above the law.

James K. Robinson

In many ways the form and function of the present day U. S. Attorney’s Office was molded during the term of Jim Robinson (1977-1980). He changed the Office in many ways that still remain today.

He re-organized the Office into Criminal, Civil, and Appellate Divisions. The Criminal Division was further divided into General Crimes, Economic Crimes and Controlled Substances Units. He formulated its press policy to conform to stricter ethical standards, established Prosecution guidelines, a pre-trial diversion program, and a Federal-State Law Enforcement Committee.

During this time period the nature of federal [rosecutions in the district was gradually changing. Drug cases evolved from high volume “buy-bust” investigations to an emphasis on “kingpin” traffickers.

Other priorities were focused on cases involving federal program fraud, political corruption and organized crime. One of the most significant of Robinson’s changes was the way investigations were selected for prosecution.

By selecting significant cases and those in areas of higher priory, federal law enforcement had a greater impact on crime problems. The objective of these changes was to meet the increased sophistication of professional criminals. This same approach continues to this day.

Perhaps Robinson’s most significant contribution was to improve the atmosphere in the workplace.

No longer was it a place where recent law school graduates went for a couple years to polish their lawyering skills.

Instead, many became career prosecutors who intended to stay on the job until retirement. Their entire perspective changed, therefore, to become more professional and long term in outlook. Training, management, and specialization became more important aspects of the Office’s mission.

Jim Robinson went on to make contributions to the progressive evolution of the law in many fields, including as a civil litigator, a law school professor and Dean, Assistant Attorney General in charge of the Criminal Division, a bar association leader.

As Chairperson of the Michigan Supreme Court Committee on the Rules of Evidence, he helped modernize and codify the evidentiary rules litigators continue to use.

He was a prolific author on Evidence and a wide variety of topics.

Conclusion

What have the United States Attorneys and their assistants and staff members contributed to the development of the rule of law in this country?

In the countless legal and factual decisions made by federal prosecutors during the 195 years the Office has existed in this district, the net effect of their efforts has been to protect the principle that every individual has a right to fair procedures and a meaningful day in court based on the law of this nation. With few exceptions, they have been independent, free from bias and have sought to do “what is right” in their cases.

The fine tuning of the rule of law is a continuing process. Justice Cardozo explained that justice is a concept which is never finished but reproduces itself generation after generation in ever changing forms.

From its austere and modest beginnings to the modern law office it is today, this process of rebirth has been the legacy of the United States Attorney’s Office for the Eastern District of Michigan.

James K. Robinson

Every young lawyer remembers the guy who gave him his first real job. For me and some others, it was a mark of distinction that that guy was Jim Robinson.

His death last Friday from cancer evokes a painful loss but also many happy memories about a man who was one of the finest lawyers of his generation.

Although Jim’s long and successful career as a litigator, public servant, author and teacher included many of the highest achievements available in the legal profession, it was for many of us his term as a 34-year-old U.S. Attorney in Detroit which we remember most fondly.

During his three-year term from 1977 to 1980, he set a framework for the modern federal prosecutor’s office and inspired dozens of young lawyers along the way.

Jim re-organized and modernized the U.S. Attorney’s Office in ways that are still followed today in this and other districts around the country.

He convinced the Justice Department to let him hire several dozen new lawyers and support staff, and he filled the positions with a diverse group, including women, African Americans and former defense counsel, three groups which had been greatly under-represented.

He re-structured the office into Divisions and Units, re-formulated a press policy, established a pre-trial diversion program, and emphasized the need for continuing legal education.

He started a Federal-State Law Enforcement Committee, which still meets regularly thirty years later, to discuss common strategies and crime problems.

He re-defined the office’s prosecution policy and shifted from a volume approach to a selective policy of investing more resources in more culpable and insulated targets.

Jim also put more emphasis on civil enforcement, especially natural resources, tort defense, civil rights and combating fraud in federal programs. It was a sea change for the better.

Jim emphasized integrity at every functioning level. I remember a short interchange at one of those “Monday lunch” sessions he initiated, and it has stuck these thirty years.

Some of the Assistants were complaining about an instruction some of the district judges were then giving to trial jurors that they need not be concerned in reaching their verdict about whether the government wins or loses the case since the government always wins as long as justice is done.

Jim settled the matter, “Hey that is what we do, or try our best to do, what is right in every decision in every case, whatever our personal preferences. It’s not a contest and winning isn’t the objective.”

As a boss, Jim was a master of the personal touch not only because it was good management, but more because that was the kind of person he was. When a trial or appeal went well, you could expect him to stick his head in your door with some thumbs-up words of encouragement or to leave an “attaboy” note on your desk. I still have a couple of them.

When a forgivable error was made, Jim considered it a lesson learned, and I heard him quote more than once the words of W. Somerset Maugham, “Only a mediocre person is always at his best.”

I have found it useful after my kids’ sporting events. A loss after a hard fought effort by a disconsolate Assistant sometimes brought out Jim’s quotation of John Kennedy and Teddy Roosevelt about the credit belonging to the person in the arena, marred by dust and sweat and blood, who if he fails, at least fails while daring greatly not sitting with those cold and timid souls on the sidelines.

Boredom and cynicism had no place when Jim was around. Instead there was laughter, hard work and long hours. Work was meant to be fun, but no one ever said it was meant to be easy.

Above all there was an unspoken sense of job satisfaction, patriotism, and fulfillment in public service. Important principles, people’s lives and freedoms, and crucial decisions were on the daily agenda. But that didn’t prevent a practical joke on a colleague, and Jim was sometimes a facilitator.

After his tour as U.S. Attorney, Jim went on as a nationally known litigator and a sought after lecturer for advocacy programs.

He supervised the Justice Department’s Criminal Division under President Clinton in 1998. He was a law school Dean and professor, President of the Michigan Bar, drafter of the Michigan Rules of Evidence and prolific author of books and articles. The list of his positive contributions to the rule of law in Michigan and the country goes on and on.

But it is not this towering man of national achievement and recognition I remember most fondly.

It was a teacher who spent a couple hours explaining and working through some knotty hearsay exceptions with a panicking young prosecutor the night before a trial was to begin.

It was a charismatic young U. S. Attorney who managed with his sleeves rolled up, walking around implementing new plans and ideas, spreading confidence and energy to all of his colleagues.

“The Secrets of Abu Ghraib Revealed—American Soldiers on Trial” by Christopher Graveline and Michael Clemens. The book is available at Amazon.com, barnesandnoble.com and Borders books.

An acquaintance from another country recently posed a question to me: How is it that such an idealistic country as America, whose people are willing to sacrifice so much, is so mistrusted and vilified around the world? We contribute nearly a trillion dollars a year, more than ten times the amount of any other country, as well as the lives of thousands of our best and brightest to attempt to keep world peace. But in the international press and the streets of the Middle East we are, increasingly, the Great Satan.

Historians for my children’s children may be able to explain this complex irony. Hopefully, one of the texts they will study is The Secrets of Abu Ghraib Revealed by Christopher Graveline and Michael Clemens. The book presents a day-by-day factual account of one of the scandals of the Iraq War, one which scarred the image of America in a part of the world where we can ill afford such ignominy.

Graveline, an assistant U.S. Attorney in Detroit, who was a JAG prosecutor, and Clemens, a federal agent in Milwaukee, who was an Army investigator, were intimately involved in the eleven successful prosecutions of the military personnel who abused Iraqi detainees at the Baghdad prison in November and December of 2003. The authors present the facts with such detail and objectivity that readers can come to their own conclusions about the questions of cause, blame and responsibility.

In addition to using impeccable scholarship, the book explores the human dimensions of the tragedy and presents the reader with a fascinating and dramatic description of the people and scenes involved.

The heat, dust and danger of Baghdad, as well as the drama of the courtroom, are alive in its pages to keep the reader as engrossed as any good summer beach-read. Beyond the enjoyment of the read, the book presents a study of the rule of law and the rules of war, for generals and taxpayers, Presidents and policymakers, about the complexities of investing young American lives in trouble spots around the world. Its drama and message will appeal to a broad spectrum of readers.

Christopher Graveline/potomac books

Although the authors refrain from imposing their personal opinions, the work provides important lessons for future statesmen on subjects such as interrogation policy, training and supervision of young soldiers, and the need for clear guidelines.

As seems to be so frequently the case, an event of such transformative historical significance influencing relations between countries and affecting lives put on the line has largely been based on misinformation and misinterpretation. Thanks to media accounts and political debates, like most Americans I thought the Abu Ghraib abuses were connected with White House and Pentagon policy on loosening the limits or coercion and torture in the treatment of enemy combatants.

As the book documents, however, the scandal at Abu Ghraib primarily involved the twisted entertainment of a handful of soldiers at the expense of common Iraqi criminal inmates who were never interrogated and had no intelligence value whatsoever.

The seven victims had been involved in a food riot at a nearby prison camp and had the misfortune of being detained on a night in which some bored and stressed out GIs decided to create some perverted amusement. The iconic images of naked Iraqi prisoners forced into cheerleader pyramids, required to masturbate for the cruel enjoyment of the guards and terrorized by dogs and other sadistic stratagems— are unfortunately engraved on American and world consciousness.

The fact that the incident directly involved only a few does not minimize the culpability of those who were convicted or the negligence of the chain of command. Although the use of abusive interrogation techniques deserves full public scrutiny, the issue which is defined by Secrets is the failure of the command officers to provide the support and guidance to the women and men on the ground so that they could emotionally survive this terrible war.

What the authors of the book demonstrate is that the incident at Abu Ghraib and its aftermath stand as a microcosm, a prism, for examining everything that is right and wrong about the whole Iraq war. At its worst, the incident embodies mistakes by political and military decision makers in the conduct of the war as a whole—the inadequacy of resources and manpower, the defective planning and training for the effect that incessant danger and hostility will have on the ground level soldiers.

At its best, the scandal aftermath and its investigation are representative of the virtues of the American troops—the overwhelming majority who conscientiously do their duty under traumatic circumstances and just want to return home. Among them are heroes who exerted incredible effort and dedication to search for American justice amidst a confusing rubble of facts and allegations. Finally the study highlights the sacrifice, personal, career and, sometimes, in lives lost, made by American soldiers in this war.

Put in the hero category, the prosecutors and law enforcement investigators, including the authors, who left hearth and home to work 16 hours a day, seven days a week under the glare of the international press and a polarized nation in search of a just and honorable resolution. It was, as one of the Pentagon generals warned them, “a fuckin’ no-fail mission.” They did what prosecutors and agents do every day, they followed where the evidence led them in search of the right result, and let the chips fall where they may.

The Secrets of Abu Ghraib deserves to be in that library of non-fiction war books which are passed on to the next generation. It is compelling, insightful, and as entertaining as it is edifying.

By Ross Parker

Are we the most violent, the most criminal country on the globe?

As someone who was a career federal prosecutor and reveres the criminal justice system, the question seems almost insulting. Do we not have one of the most finely nuanced systems when it comes to protecting human rights while protecting the public from criminals? Many would say Yes.

And yet we, who make up only 5% of the world’s population, have 25% of the world’s prison population, far outstripping countries like Iran, North Korea, and China. 7.3 million people in the U.S. are either in jail, on probation or in some form of supervised release.

One in every 31 can expect to enter the criminal justice system in this country, one in seven African American males.

During the last three decades, the response to the crime epidemic has been to tighten the screws ever tighter by increasing sentences and creating more laws mandating incarceration.

The result has been an increase in the nation’s prison population, which has climbed from about 500,000 in 1980 to almost 2.5 million.

Are we safer today than in 1978 when I prosecuted my first buy-bust cocaine case? Few would think so.

Moreover, sociologists claim that whatever stability there has been in the crime rate is due more to factors like the aging population than our get-tougher response.

Whatever the causes, prisons are overflowing and have become increasingly more dangerous places for corrections officers and inmates. During the same three decades corrections expenditures have ballooned from $8 billion to $70 billion annually. In the current depleted economic condition, states say that they can no longer afford these costs. Their economizing is affecting funding for law enforcement with layoffs and reduced financial support.

As this cause and effect debate rages on, there is a plan to examine the criminal justice system as a whole and suggest workable reforms.

U. S. Senator Jim Webb of Virginia last year proposed a bill to create a blue ribbon commission of experts from all fields to study the current problems and come up with solutions.

The bill, which has been reported favorably by the Senate Judiciary Committee, should come up for a vote this year. A companion bill has bipartisan backing in the House of Representatives. The proposal has the support of an array of organizations ranging from the ACLU to the Fraternal Order of Police.

The federal law enforcement community should not only support this bill but should lobby to actively participate in the commission, both directly as members and by providing data and perspective on subjects which will undoubtedly produce a lot of controversy.

Like legalization of marijuana, the Commission will probably study the need to look at a host of alternatives including non-incarceration sentences for some non-violent crimes and the elimination of mandatory minimum drug sentences, to name a few.

Some will think that such controversies should not be opened for debate. But, given the status quo, we cannot afford not to discuss some innovative policy choices, including ones which have been successful in other countries.

There are a number of areas which, in my opinion, deserve study and in which reform is sorely needed:

1. Prisoner Rehabilitation and Re-entry Programs – Two of every three released inmates will be re-arrested and half of them will go back to prison within three years of their release. This rate of recidivism threatens public safety. The current correctional systems have all they can handle, and more, to keep jails and prisons relatively safe. It benefits every citizen to provide programs in the prisons for training, education, and re-orientation to point inmates in a law abiding direction. After their release, support programs for their re-entry into society with legal opportunities and alternatives are needed. Mental health and drug addiction programs are especially important given the sizeable percentage of inmates who have needs in these areas.

2. Drug Enforcement Policy Reform – We have increased the incarceration of drug offenders many-fold in the last 30 years, according to some statistics more than ten times. This increase, for better or worse, is largely responsible for the significant prison population increase. And yet drug cartels and gangs flourish and drug-inspired property crimes abound. Changes in this area will, no doubt, generate fierce controversy, but reforms must be considered. Should sentences continue to be based primarily on drug amounts rather than culpability levels? Are mandatory minimum sentences necessary and effective? Should crack cocaine be equated with powder for sentencing purposes? Should possession and use of small amounts of marijuana be de-criminalized?

3. Law Enforcement Funding, Training – Many states have severely curtailed funding for salaries, training, and improved technology and equipment. No serious plan for reform can be successful without adequate support for its foot soldiers. The trend toward a more educated police force should be enhanced not reduced.

4. Standards and Compensation for Indigent Defense – The overwhelming majority of accused receive appointed counsel. In many states, such as my own, Michigan, the appointment process, qualification and performance standards, and compensation are both chaotic and contribute to the problem. The result is that many good defense lawyers refuse to represent indigent defendants. Although it may seem counter-intuitive, most prosecutors would prefer to deal with prepared and experienced counsel. The likelihood of a just and efficient result is enhanced by adequately compensated defense attorneys. The present situation encourages inaccurate results, unjust dispositions, and endless appeal and post-conviction litigation.

There are a host of other issues and problem areas which may, or may not, be appropriate for a big-picture commission. For example, how should we as a society respond to the growing realization that, even with a system that is 99% accurate, there are thousand of post-appeal inmates who actually did not commit the crime for which they are incarcerated? DNA testing has already exonerated more than 300 prisoners. Hundreds of Innocence Projects have proposed procedures and methods for considering claims of actual innocence. Law enforcement officials, both current and retired, have been active in this movement. This is just one of probably many other subjects which are worthy of study.

Congress should take advantage of the momentum for Senator Webb’s bill and pass this legislation. Whether an innovative blueprint by a Criminal Justice Reform Commission can survive state and federal legislative finger-pointing, inertia and election-motivated partisan politics, will be another, and more challenging, question.