By Danny Fenster

ticklethewire.com

When Rep. William Jefferson (D-La.) was convicted on public corruption charges in 2009, he got hit with a  13-year sentence–the highest prison term a Congressman has ever received. Bernie Madoff, the financial scammer who pleaded guilty in New York in 2009 to running a massive Ponzi scheme, was handed a whopping 150-year sentence. And just recently, the ever-chatty former Illinois governor Rod Blagojevich, convicted of public corruption charges, was given 14 years–the harshest sentence an Illinois governor has ever received in a state known for its history of public corruption.

In federal courts across the United States, criminal sentences collectively have risen steadily in recent years, all while actual crime levels are falling.

“The national data is crystal clear on this,” Harvard Law Professor Ron Sullivan said in a phone interview with ticklethewire.com. “Sentences are getting increasingly harsher even though the crime rate is lower.” Sullivan teaches courses in criminal law and criminal procedure at Harvard Law.

Sullivan attributes the change in the last couple decades to a shift from discretionary sentencing to sentences often determined by federal sentencing guidelines — even after the guidelines went from mandatory to discretionary.

The Sentencing Reform Act of 1984 sought to bring more consistency to federal sentencing, with mandatory sentences for certain convictions and for determinate sentencing–a firm and automatic sentence for different crimes and actions. The act created the United States Sentencing Commission (USSC) and the federal sentencing guidelines used in federal cases today. It also put some judges in a regrettable position when they felt the guidelines were excessive, but could do little about it.

 

But in 2005, the Supreme Court ruled that the mandatory guidelines were in violation of the Sixth Amendment right to a trial by jury, in the case United States v. Booker. The guidelines then became legally regarded as suggestions, not requirements.

Still, judges almost always at least start with the guidelines, and a federal case law requires a judge to write their reasoning for departing from the guidelines if sentences exceed them by a certain percentage.

Studies clearly point to the hike.

In November of 2004, the USSC published a report called “Fifteen Years of Guidelines Sentencing,” a look at the impact of the changes since sentencing reform was initiated.

“The data clearly demonstrate that, on average, federal offenders receive substantially more severe sentences under the guidelines than they did in the pre-guidelines era,” the report states. The first year in which a majority of federal offenders were sentenced under the guidelines–a period between 1987 and 1989–the average prison sentence nearly doubled; by 1992 it had more than doubled, from 26 months in 1986 to 59 months in ’92.

A 2006 report from the U.S. Sentencing Commission evaluating the impact of the Supreme Court’s Booker decision found that “the majority of federal cases continue to be sentences in conformance with the sentencing guidelines.” The report placed the rate at which federal judges conformed to sentencing guidelines at 85.9 percent, and found that the average sentence length had actually increased after Booker. Above-guideline sentences doubled after Booker, according to the report.

The decade between 1997 and 2007 saw about a ten percent rise in the rate of prison sentences for federal offenders, according to a January 2009 report by the United States Sentencing Commission entitled “Alternative Sentencing in the Federal Criminal Justice System.” That corresponded with a decrease in alternative sentencing like probation, or combinations of lower prison terms with probation and other alternatives.

Legal experts suggest the shift to tougher sentences is also, at least in part, due to changing attitudes about incarceration. They say the popularity of the rehabilitative component of incarceration declined in the 1970s, which precipitated the reform of the 80s. Incarceration became more about taking the criminal element out of society.

The crew of crooked Illinois governors provides a little snapshot of the upward climb in sentences. In 1973, Ex-Gov. Otto Kern Jr. was convicted on 17 counts including bribery, conspiracy and perjury, and was sentenced to three years in prison.  He was released early after he was diagnosed with terminal cancer. Ex-Gov. George Ryan was convicted on public corruption charges in 2006 and got 6 1/2 years in prison.  As an aside, Ex-Gov. Daniel Walker, who had already left office, was convicted in 1987 on charges related to the First American Savings & Loan Association in Illinois and got seven years.

Before Congressman Jefferson’s history-making 13-year sentence, former Rep. Randy “Duke” Cunningham (R-Calif) set the record in 2006 when he got eight years for bribery involving the defense industry.  Rep. Dan Rostenkowski, the legendary Illinois Democrat,  got 17 months after pleading guilty in 1996 for mail fraud. (Jefferson is free pending his appeal).

The tougher sentences involving public officials may also be a sign that the public and judiciary are becoming increasingly agitated about crooked politicians, and politicians in general. Real Clear Politics reports the average job approval rating for Congress at 12 percent, though some polls report as low as eight.

“The quid pro quo–taking money in exchange for improper use of a public office–is viewed as undermining confidence in government and fostering distrust of public officials,” said George Washington University Law Professor Stephen Saltzburg, “which ultimately harms a democracy.”

“Federal judges have been increasingly tough on most, if not all, defendants who have breached the public trust by seeking to profit through the illegal acceptance of funds,” said Saltzburg.

Legislators see higher sentence recommendations as a low-cost means to look tough, even though they know judges will most often hand down sentences well below the highest recommendations, Harvard Prof. Sullivan says. “They know that most people probably are not going to get the top level sentences, but will get some sentences somewhere lower on the range,” which are still tough and pushes sentences up overall, he said.

Further more, prosecutors are more often using very high sentences instrumentally to induce plea bargains. “Most rational actors can’t take the risk of extraordinarily high sentences,” said Sullivan, “so they are kind of forced to accept plea bargains.”

John Janiszewski, an attorney in Detroit, agrees. “Only about five to ten percent of cases go to trial,” he says. “Most end in a plea deal.”

“Determinative sentencing and mandatory sentences really take the human element of any case out of the judge’s hand,” Janiszewski says, “and in criminal cases the human element is really important; every case is different.”

 

 

By Danny Fenster

ticklethewire.com

It was an IED that did it for Povas Miknaitis.

After an initial deployment to Iraq in 2008, he was later sent to Afghanistan as a Marine rifleman. In Afghanistan, an IED blast sent shrapnel flying; some hit his arm and abdomen; larger pieces struck his face, shattering his jaw and blowing his right ear clean off of his head.

“Part of my mouth was missing,”  Miknaitis tells ticklethewire.com. “It just broke my jaw completely.”

It was in a hospital, recovering from the blast in 2009, that Miknaitis heard about an FBI training program for injured soldiers called Wounded Warriors. He began filling out paperwork and initiating the process of joining the bureau’s Wounded Warriors internship program. In 2011, when the program was launched, he landed a spot in a program that seems to be taking off.

So far, so good.

Of the 21 soldiers who have completed various internships, two have been hired full time; one as a clerk and another in IT. Another 43 are currently serving as interns, 78 are being processed and more are in line pending a funding evaluation, says FBI spokeswoman Amy Thoreson. Interns work in a variety of capacities, from logistics, intelligence, investigations to computer- and technology-focused jobs.

“Our goal is to give them working experience and the clearances they need,” to get back to work, says Thoreson. “We think this is a really wonderful program. It’s really helping people get their lives back.”

The San Diego field office, where Miknaitis interned, is among the few offices that are participating in the program. Others include the Washington Field Office, Sacramento, Charlotte and the FBI’s International Operations Division, Operational Technology Division, and Laboratory.

As expected, landing a spot with the FBI — even a temporary one — requires an intensive background check.

“This was not the same background check I went through for the military,” says Miknaitis. Agents called friends and family of his. “I had relatives calling me from Chicago asking if I was okay, saying the FBI had called asking questions about me,” he recollects.

Once Miknaitis was cleared, he began he began an internship researching cases for ongoing FBI investigations. “I was always interested in law enforcement,” he says, “and the internship program really let me learn a lot more about it. It got me employed while I was still recovering.”

Miknaitis still spends much of his time at a San Diego hospital. “It takes a while to go through the treatment, for the doctors to make sure they have done absolutely everything they can,” he says.

The program had its genesis in November of 2009, when president Barack Obama signed Executive Order 13518. That order focused on employing veterans in the federal government. The following July, president Obama signed Executive Order 13548, which focused on increasing the number of federal employee hires with disabilities.

As for Miknaitis, he’s grateful for the experience, but learned that the FBI might not be for him.

“I want to be able to go home and talk about my work,” he says, “not to have to say, ‘well, I really can’t talk about that honey, that’s classified information.”

After much physical therapy and plastic surgery, Miknaitis is doing well and poised to begin school in the fall, possibly for sports medicine, he says.

“I actually got pretty lucky,” he says. “If you saw my face and my body after the injury, you would not think I would have come out looking this good afterword.” He remains deaf in his right ear, but he and his doctors have spoken about cochlear implants in the future.

More than 47,000 soldiers have been injured in action in Iraq and Afghanistan, according to the group Iraq and Afghanistan Veterans of America.

 

By Allan Lengel

ticklethewire.com

Thomas E. Brandon, the straight-shooting, well respected and extremely able veteran of ATF, who was sent around the country this year to try and mend some of the agencies pressing problems, has been named ticklethewire.com’s Fed Of The Year for 2011.

Brandon, an ex-Marine who is currently ATF’s number two person in Washington, started the year off as special agent in charge of ATF’s Detroit office, where he was very well respected.

In the spring, after the agency started coming under Congressional fire for Operation Fast and Furious, Brandon was sent off to Phoenix to head up that office and try and improve morale and straighten out matters.

Fast Furious was created in the Phoenix office. Under Fast and Furious, ATF encouraged Arizona gun dealers to sell to straw purchasers, all with the hopes of tracing the weapons to the Mexican cartels.

Problem was, ATF lost track of many of the guns, some of which surfaced at crime scenes on both sides of the border. Some members of Congress like Rep. Darrell Issa and Sen. Chuck Grassley (R-Ia) went on the attack, criticizing ATF. Some even suggested folding it into the FBI.

In late August, acting director  Ken Melson stepped down. In October, as part of a major shakeup at the agency,  Brandon was summoned from Phoenix to become the number two guy in Washington.

We think it speaks volumes that Brandon has been sent to the agency’s hotspots to help straighten out things at a time the agency has come under fire, the likes of which hasn’t been seen since Waco.  To boot, it’s easy to find street agents who respect Brandon, who has been an agent since 1989.

Brandon is the fourth person to receive the Fed of the Year Award.  Previous recipients have included Chicago U.S. Attorney Patrick Fitzgerald (2008),  Warren Bamford, who headed the Boston FBI (2009) and Joseph Evans, regional director for the DEA’s North and Central Americas Region in Mexico City (2010).

 

Rex Tomb served in the FBI from 1968 until his retirement in 2006. For most of his career he served in the Office of Public Affairs, retiring as Chief of its Investigative Publicity and Public Affairs Unit.

 

By Rex Tomb

for ticklethewire.com

About a year ago I received a telephone call from my former boss at the FBI. No biggie. Usually they call to tell me that a former colleague is retiring or that maybe someone I know is ill or transferring. This call however, was different. He told me that some people were coming to town and that they were producing a feature film about the life of J. Edgar Hoover. Would I give them a tour of Mr. Hoover’s old office? I immediately agreed to do so.

I am not a historian, nor can I claim to have known Mr. Hoover, though in a couple of those “my brushes with fame” moments, I did catch glimpses of him and even exchanged a few words with the man (very few). To say however, that I knew him? When he was alive, I worked in the mail room and conducted FBI tours. We weren’t on a first name basis. I served under him for the first four years of my FBI career which, by the way, stretched from 1968 until my retirement in 2006.

In the early 1970s, I was given an assignment that enabled me to obtain a very good knowledge of how Mr. Hoover’s office had been laid out: Who sat where, where the entrances were, where some of the furniture stood, etc. Mr. Hoover’s office was in the Department of Justice Building which is located in Washington, D.C. Several years ago the building underwent an extensive renovation. Much of the building’s interior was gutted and rebuilt, making it much harder for newer people to know exactly where things were. Since I live only a few miles away and was available, I was called.

While some parts of Mr. Hoover’s office suite no longer exist, I was still able to show them Mr. Hoover’s old conference room, his working office as well as his secretary’s office. The movie production people that I met with could not have been nicer. I liked them then, and I still do. They were intelligent, courteous and very kind. I also tried to recommend that they telephone some people who actually knew Mr. Hoover. Believe it or not, there are still a few around. They were appreciative, but it was obvious that they had already been in touch with some of them. Researchers who work on major film productions are notoriously efficient.

After the tour, I eagerly anticipated the film’s release, and several weeks ago, “J. Edgar” which was directed by Clint Eastwood and stars Leonardo DiCaprio and Armie Hammer, came to Washington area movie theaters. The night I went to see it the theater was packed.

 

I was impressed with the production’s attention to detail. The cars, clothes, and sets were spot-on. Even the office scenes, which were filmed in a Hollywood studio, looked very realistic. An acquaintance of mine, who worked in that office after Mr. Hoover died, asked me if scenes were actually filmed there. I also thought that DiCaprio’s and Hammer’s performances were very good. The movie follows a timeline starting when Mr. Hoover and Mr. Tolson were very young and takes them well into old age. The actors had to convince us that 50 years had passed and I think that they succeeded. They certainly took me along with them. That was no small feat either. DiCaprio and Hammer had to do their work wearing a ton of makeup. They also had to change the way they walked, talked, etc. Hoover and Tolson looked, moved and sounded quite a bit different in 1972 than they did in 1932.

In the movie, DiCaprio probably pulled off the aging scenes a little better than Hammer did, but that might be because, in real life, Hoover aged better than Tolson. While watching Hammer’s performance I was reminded of the time that a colleague showed me a picture a young Clyde Tolson. He looked nothing like the shuffling, stooped figure I had just seen in the hall. Age and ill health had really taken a toll on him. In keeping with that progression, Hammer’s Tolson, looked nothing like the younger man he portrayed earlier in the movie. That took considerable skill.

The film also documents Hoover’s rise in the Department of Justice as well as the political turmoil faced by the nation in the early twentieth century. The film credits Hoover for his meticulous attention to detail as well as some of the innovations that he introduced to American law enforcement.

What I found less satisfying was the portrayal of Hoover and Tolson’s personal relationship. Mr. Hoover and Mr. Tolson were certainly close. When I first started at the Bureau, from time to time I would hear colleagues make snide remarks about them. It didn’t happen as much as one might expect though. Perhaps it’s because until relatively recently, women were largely excluded from clubs, schools and other organizations. Also, remember that up until 1973, only guys were drafted into an almost exclusively, all male U.S. military. Over the years, millions and millions of men were compelled to go through this male rite of passage.

Additionally, almost all professional work environments were male dominated. You could visit factories, churches, corporate offices, laboratories, newsrooms and even movie studios and see only a handful of professional women. Seeing two men regularly lunching together? So what? Restaurants back then looked like men’s clubs with plenty of lunchtime alcohol and dangerous amounts of cigar and cigarette smoke. Hoover and Tolson seen together back then would have looked like just about everyone else.

Since the release of the movie, I’ve read stories that Hoover and Tolson dressed alike, lived together and apparently went to great lengths to ensure that their private lives remained that way. My own observation was that they certainly dressed better than most. They also seemed to favor dark suits. That they dressed alike, though? I never saw or heard of it, and I don’t think something like that would have gone unnoticed in an organization like the FBI. Of course, back then conformity was considered a virtue, and tons of people including many of Mr. Hoover’s assistant directors, Agents and yes, even some of his super loyal, self-serving clerks (like me), wore dark suits too. Take a look at photographs of other government executives from that period. Hoover and Tolson fit right in, sartorially speaking, anyway.

As for their living arrangements, Mr. Tolson lived in an apartment near American University. Mr. Hoover owned a house several miles away. The only time that I am aware of Mr. Tolson ever staying with Mr. Hoover was the time just after he had had open heart surgery. Mr. Hoover had a live-in domestic who could look after Mr. Tolson during his convalescence. Under these circumstances, not allowing Mr. Tolson to stay at his house would have been pretty uncharitable. By the way, Mr. Hoover’s secretary, Miss Gandy, also lived within easy walking distance. There was plenty of help if Mr. Tolson needed it.

Were they more than just good friends? We’ll never know, but of the numerous people I’ve talked to over the years, who really knew them, all have told me that there was nothing more to their relationship than friendship. This, I guess, is why I’m so skeptical of all of this talk about them being secret lovers. I mean why should I accept the notions of those who never knew them, never saw them, never met them, never talked to them and in some cases weren’t even born yet?

In recent conversations I have had with some of my former colleagues, I don’t think that most of us really care about the nature of Mr. Hoover and Mr. Tolson’s relationship. I know I don’t. Many of us believe, however, that both Mr. Hoover and Mr. Tolson would care.

If this were a film about a ”fictional” FBI director, in the same way that “Citizen Kane” was a movie about a “fictional” press baron, I wouldn’t be too concerned. This movie, however, deals with real flesh and blood people and just to make sure we know that, they even used the main character’s name for the film’s title. Millions of people will see this movie and will draw conclusions from it. For the record, there is absolutely no credible evidence that J. Edgar Hoover and Clyde A. Tolson were either closeted or openly homosexual. Likewise, while there is a popular notion that Mr. Hoover blackmailed the Kennedys and others over the span of his very long career, I have never seen solid evidence that it actually happened. Indeed, I find it dubious that anyone could intimidate 535 members of Congress and every President from Calvin Coolidge to Richard Nixon for nearly 50 years. This is America and not the Soviet Union. While the film does not come out and say it, it certainly does infer these things about Mr. Hoover. Is it accurate? Is it fair? What impressions will viewers take away with them, not only of Mr. Hoover, but of the thousands of men and women who over the years worked for him, and in some cases sacrificed their lives while serving under his leadership?

Hollywood rightly calls attention to the unchecked power of elected and career government officials. What I sometimes fear they miss, however, is the power of their own industry. They can re-write the entire life of an individual in several languages, and it will be believed, sometimes unquestionably, by a vast worldwide audience. With nothing but the box office or advertisers to serve as a check and balance, the entertainment industry has the ability to demonize or beatify almost anyone they choose. Now that’s power! I wouldn’t want it any other way. Censorship has no place in America. But still, we really place a lot of faith in the entertainment industry, and that puts a very heavy responsibility on their shoulders. What does the Bible tell us? “. . . unto whomsoever much is given, unto him shall be much required.”

So true, so true.

By KEN ACKERMAN

EDGAR BOARDED THE OVERNIGHT TRAIN on Tuesday, April 6, 1920, carrying a suitcase with a few notes and a change of clothes. It took ten hours to reach Boston from Washington, and he used the time sitting alone to read, think, and steal a few hours’ sleep. The next morning, he stepped out on the platform at South Station and found Boston’s two top federal prosecutors waiting there to meet him: United States Attorney Thomas J. Boynton and his assistant Louis Goldberg. They took him to breakfast and showed him the Wednesday morning newspapers.

Edgar must have grinned ear to ear at what he saw. Every single one featured a story about him, one more glowing than the next. EXPERT ON REDS COMING HERE, shouted

the Boston American on its front page. “John E. Hoover is the man, it was disclosed, who had direct charge of the Red raids all over the United States early

in January.” The Boston Post called him the one who “directed all the activities of the United States government against radicals during the past two years.”

So too the Boston Evening Globe: MAN HERE WHO DIRECTED

NATIONWIDE RAIDS, read its headline.

Edgar had left Washington a frustrated government bureaucrat. He arrived in Boston a law enforcement star.

He couldn’t enjoy himself for long, though. They had work to do. As Edgar sipped coffee and nibbled his egg, Boynton and Goldberg briefed him on the problem facing them in court that day. The trial in the habeas corpus case, the one brought for the prisoners on Deer Island, had gone wildly off course. On the first day of testimony, lawyers for the prisoners had embarrassed the government and threatened to blow the case wide open.

First, they got an immigration official named James Sullivan to admit that he jailed over a hundred suspects at Deer Island before having a single warrant for any of  them, and that he hadn’t even bothered to apply for any warrants by telegraph until five days later—meaning he’d had no legal authority to hold them during this period. The judge himself, George W. Anderson, had confronted Sullivan over the $10,000 bail he charged certain prisoners, far more than they could afford to pay. “You knew these people were all wage-earners?”

Judge Anderson had asked from the bench. “Well, didn’t it occur to you that $10,000 might be the equivalent to a denial of liberty?”

“No, Your Honor,” Sullivan had mumbled sheepishly, denying the obvious.

But an even worse blow-up came in the afternoon when lawyers for the prisoners called as a witness George Kelleher, the Justice Department’s bureau chief in Boston, and squeezed him to disclose agency secrets. Tensions reached the breaking point when Judge Anderson interrupted to ask Kelleher how many of his Boston-based Justice Department agents actually had taken part in the raids, and Kelleher refused to answer.

“You will answer that question,” Judge Anderson had demanded.

“I decline,” Kelleher had said.

Judge Anderson, not used to being defied by government witnesses in his courtroom, threatened Kelleher with a contempt citation, but Kelleher just nodded. “I decline to state the number of men,” he repeated.

After a brief recess, Louis Goldberg, the assistant U.S. Attorney, had tried to smooth things over by suggesting that they wait until he could consult with his superiors at the Justice Department in Washington, but this idea only made the judge angrier.

“Do you mean to infer that a chief in Washington can rule in this court?” he asked. They recessed again, then Boynton himself stood up. “In view of the information desired I should like to ask the leniency of the court … in order that I have the opportunity to communicate with the Department of Justice in Washington.” Anderson finally relented, and so the urgent telegram went out to Washington for Mitchell Palmer to send his top radical expert, Mr. Hoover, to come help. The message was clear:

Either give Kelleher permission to answer the question, or be prepared to take the heat for refusing.

Edgar, hearing this story, admired the sheer brass of his bureau chief George Kelleher for standing up to the judge and saying No to his face. Kelleher was no fool; he was a graduate of Brown University, Georgetown University Law School, and a former federal prosecutor. Best of all, he knew how to keep secrets. Edgar liked this man Kelleher; he decided he deserved his help.

But that wasn’t all. There was another problem. How had the lawyers for the prisoners suddenly gotten to be so smart that they could seize control of the trial and run the government in circles?

To answer this, Boynton and Goldberg now had to give Edgar an introduction to the secret world of Boston back-room politics. Goldberg explained how he happened to belong to a

small, exclusive group called the Harvard Liberal Club that included many of Boston’s top lawyers. Goldberg had attended the Club’s meeting a few weeks earlier on the night that Judge Anderson himself, now presiding over this habeas corpus case, had given a speech blasting Mitchell Palmer and his Red

Raids as “hysterical” and “appalling.”

Since then, tensions had grown worse.

Henry J. Skeffington, Boston’s tough-talking federal immigration commissioner who operated the Deer Island prison, gave a speech to the Massachusetts Press Association where he shook his finger at the Harvard crowd directly: “I’ll take great pleasure in getting some of these Harvard Liberal Clubs

myself,” Skeffington had said. “Some of the Harvard Liberal Clubs which have been raising so much Cain around here—well, if I have a warrant in my pocket I’ll take pleasure in getting them.”

What exactly he meant by “getting” them, Skeffington didn’t say, but when Liberal Club members read his speech in the newspapers, they took it as a threat. They demanded that Skeffington be fired. “He has lost his head, has proved incompetent and has brought your administration into disrepute,” club president William P. Everts charged in a letter to Labor Secretary William Wilson.

Now, at the habeas corpus trial, Skeffington sat technically as the defendant, Anderson the presiding judge, and the fallout from the argument could be seen in the line-up of faces at the lawyers’ tables. Representing the prisoners, in addition to two local attorneys they’d hired originally, sat two wellknown professors from Harvard University Law School, the real brains behind the habeas team. They appeared as amici curiae, “friends of the court,” serving without pay at the request of their real-life Liberal Club friend Judge Anderson. One was Zechariah Chaffee, a first amendment scholar, and at his side sat the popular, politically-connected friend of leftists and Supreme Court justices, Felix Frankfurter. Everyone in court knew that, more than anyone, it was Felix Frankfurter calling the shots.

Reaching Boston’s federal courthouse that morning, Edgar must have marveled at the crowd of people clamoring to get into Judge Anderson’s chambers. The presence of two celebrities, himself and Frankfurter, made this trial a hot ticket for hundreds of curiosity seekers: newsmen, academics, prisoners’ families, and even a group of Harvard law students who came to watch Boston 237their professors. They packed the seats and jammed the lobby waiting for space to open up in the courtroom. One of those waiting to get in that morning was Mrs. Jesse Wilson Sayre, the glamorous blue-eyed blonde daughter of President Woodrow Wilson himself. Sayre, beyond being the president’s daughter, was also the wife of Francis B. Sayre, a Harvard Law School professor. She stood in line like everyone else, wearing a dark coat with gray fur trim and a pretty blue straw hat. She waited for half an hour before a guard recognized her and cleared a seat for her. “I am very much interested in these cases,” she told the handful of newsmen who buttonholed her during a recess.

“I believe it is the duty of everyone to inform one’s self on such matters. I am especially interested in deportation cases and wanted to hear the testimony.”

Besides, she said, she knew Felix Frankfurter, her husband’s friend, just as everyone else around Harvard knew the friendly, outgoing Felix.

Asked if she held “liberal views,” she just laughed.

Once inside the courtroom, Edgar noticed eyes on him from all around the chamber: “Considerable comment has been made by lawyers and others in attendance … on the appearance of extreme youth of John E. Hoover,” a Boston Post reporter noted. “Despite his boyish looks, however, I am informed

that Mr. Hoover is regarded as one of the ablest men connected with the department in Washington. He has been kept very busy since his arrival explaining that he is not a relative of the former food controller,” future president Herbert Hoover, who had held the post of Federal Food Administrator during the World War.

But “boyish looks” or not, Edgar soon made it clear who gave the orders at the government lawyers’ table. On the very first question of the day, resolving the prior day’s argument over Kelleher’s refusal to answer Judge Anderson’s question on the number of agents involved in the January raid, Edgar gave his signal and peace was restored. “I wanted to say that no disrespect was intended for the court yesterday,” lawyer Thomas Boynton announced, rising from his seat to do the talking.

He offered to have Kelleher answer Judge Anderson’s question privately in the judge’s chambers, and Judge Anderson agreed. Once this was done, they moved ahead. Edgar never rose to speak formally himself but instead sat and whispered to the other lawyers.

Still, several observers noted how his presence affected the quality of the government’s strategy “whose wits were reinforced for the first time by the presence of John E. Hoover, special assistant to the Attorney general, who engineered the ‘Red’ raids,” said the Boston Globe.

Judge Anderson now turned to the next potential bombshell. Somehow, the prisoners’ lawyers had managed to get their hands on a copy of a private letter from Justice Department officials in Washington, D.C., to Boston bureau chief Kelleher giving him instructions for the January raids. Frankfurter offered it into evidence and Judge Anderson directed that a clerk read it out loud. Louis Goldberg, the assistant U.S. Attorney, objected, but Anderson overruled him. Edgar, sitting at the government lawyers’ table, cringed at the spectacle. He had written these instructions himself a few weeks earlier, and here they were being read aloud in this roomful of strangers, leaking the government’s secret tactics to the enemy. Had he no right to privacy? Worst of all was hearing his own name mentioned in it: “On the evening of the arrests… I desire that you communicate by long distance to Mr. Hoover on matters of vital importance,” the clerk read from the letter, and again, “I desire that the morning following the arrests you should forward [reports] marked ‘Attention of Mr. Hoover’…”

After the clerk finished reading the letter and Boston bureau chief George Kelleher took the witness chair again, Edgar watched as Felix Frankfurter rose to start his cross-examination.

Edgar had never met Felix Frankfurter before this day and knew only vaguely of his reputation. Watching him, Edgar might have been struck by Frankfurter’s owlish face and his small, five-foot-five-inch frame, or the faint echo of a foreign accent in his voice. But what Edgar mostly saw was an articulate, composed, experienced litigator, much smarter, more polished and better prepared than others he’d faced in courtrooms or debates—perhaps the kind of lawyer Edgar himself aspired to become in the future. Today, though, Frankfurter was the enemy.

“How many men were in your arresting force?” Frankfurter stood like the law professor he was grilling a first-year student, his words clear and precise.

Kelleher answered matter-of-factly: between three hundred and five hundred, including federal agents and police. “Were they the only ones? Were there any volunteers?” For transportation purposes only, Kelleher admitted, private citizens who drove automobiles for them. “And the agents searched those arrested?” Yes, Kelleher said. “How many men were released that night for want of evidence?”

“That is impossible to tell. Each agent had a weeding out process of his own; that is, weeding out the aliens from the citizens, and so forth.”

“Why did you pick up any citizens?” Frankfurter asked.

“Well, it was done by mistake, if at all.” No one missed the point. In a few brief, almost casual exchanges, Frankfurter had led Kelleher to admit an eyepopping list of illegalities: warrantless arrests, warrantless searches, unauthorized use of non-deputized agents, and he had barely gotten started. As Frankfurter laid it out, Edgar saw the newspaper reporters scribble it all down word for word.

Felix Frankfurter had gotten the urgent telephone call from Judge Anderson on this case just a few weeks earlier. “I went [to Anderson’s office] and he told me, ‘Important habeas corpus cases are before me [and] the lawyer who represents them is plainly inadequate,’” he wrote later. “’He’s doubtless a conscientious fellow, but not equal to the problems presented in the cases.’” Anderson wanted Frankfurter to appear free of charge. “Would you do that?” he asked. Frankfurter hesitated, but not for want of a fee. Lawyers who defended Reds these days routinely found themselves being smeared along with their clients, and Frankfurter had twice already barely escaped losing his job in the past few months over these types of run-ins. Even the prestigious New York Law Journal , in talking about a recent I.W.W. case, had cautioned attorneys against defending suspects whom it considered traitors. “Lawyers especially may well consider most seriously whether they should give legal aid to such dangerous adversaries to our government and of our fundamental rights and liberties,” it warned in an editorial.

Still, Anderson pressed him to take the case. The stakes were high. Not only did fifty-three suspects still sit behind bars on Deer Island in late March 1920 as most of those freed on bail still faced deportation, but a bigger contest was under way in the country as well over the Raids. Felix Frankfurter understood this. If Mitchell Palmer could get away with his mass arrests and brutal treatment of people—citizens and immigrants alike—based on nothing more than guilt by association with vaguely-defined “communists,” then civil liberties had a bleak future in America. Certainly, this fight was just as important as any of the others he had risked his job over during the past year.

Yes, he told Anderson, he would do it, but only so long as he could bring along his Harvard colleague Zechariah Chafee as his expert on the First Amendment.

Now, he stood in Anderson’s courtroom making his stand. Critics would call him a Red one more time, but let them. He had survived these storms before. In fact, one reporter noticed how Frankfurter even made a point to wear a pinkish-red necktie that morning.

“As a matter of fact, there was a considerable proportion of United States citizens [among those arrested], wasn’t there?” Kelleher tried to deny it but, before he could speak, Frankfurter pulled out a newspaper clipping from Lynn, Massachusetts, reporting that thirty-eight out of the thirty-nine prisoners taken there had been freed almost immediately, almost half because they were citizens, and none had even been Communist Party members.

Kelleher said he had only a “very general” awareness of the situation there.

“What authority had you in your pocket for those arrests?”

“The instructions from the Department at Washington that warrants awaited some and that Communists could be held and warrants obtained by telegraph,” Kelleher said.

Arresting citizens without warrants? Arresting anyone without warrants? Again, he had made his point. Kelleher had no authority to make the arrests, and had not even made a theoretical case for the constitutionally-required “probable cause.” All he had was a note from a bureaucrat in Washington telling him to go ahead.

Frankfurter’s purpose in these questions went far beyond winning freedom for the Deer Island prisoners. He knew that Americans had no sympathy for immigrant Reds, and he wasn’t likely to change their minds. But however much they might hate radicals, Frankfurter still believed that most Americans valued the rule of law, or at least they resented it when government officials appeared too power hungry. If he could show that the Justice Department had repeatedly broken the law in conducting these raids, the people might listen. To Frankfurter’s mind, the chief victims were not the Reds themselves but, instead, the law and the Constitution. If an aggressive Attorney General like Palmer could ignore it whenever he had a wave of public passion on his side, the law meant nothing.

“Weren’t prisoners searched without warrants?”

“That is true, according to our instructions.” Kelleher answered. It wasone more violation to add to the list.

“And in those original instructions, it was left to the discretion of the officer as to a warrant?”

“That is true.”

“Did you find any instruments of violence on the people, such as bombs, guns, and what not?”

“Nothing in particular, excepting a knife-gun, an ingenious device designed, by the release of a blade, to propel a bullet from the end of a knife.”

“Were prisoners brought in in chains?” Frankfurter knew that everyone in Boston had seen the newspaper photos of Red prisoners being marched through the streets in shackles and handcuffs en route to Deer Island. Kelleher could not deny it nor even try to justify it.

“I have no knowledge of such a thing. But I know precautions were necessary in bringing in larger numbers over great distances,” he said.

Frankfurter then turned to what had been the most explosive part of the instruction letter from Washington that the clerk read a few minutes earlier, the part dealing with secret spies: “If possible you should arrange with your under-cover informants to have meetings of the COMMUNIST PARTY and the COMMUNIST LABOR PARTY held on the night set [for the raids],” the letter had read, suggesting that Justice Department agent provocateurs actually ran the Communist organizations.

“As a matter of fact, you had reason to know that these meetings of the Communist parties would be called

for the night of January 2, didn’t you?…. You even stimulated the calling of these meetings, didn’t you?”

“That is a possibility, but I can’t say personally,” Kelleher said, damning himself once more with an off-handed admission.

Judge Anderson now interrupted from the bench. “Do you know when government participation in these parties began?” he asked. “Have you any personal knowledge of the extent of Government participation in this district?” No, Kelleher said.

How many undercover agents did he have working under him? “They are a floating population, Your Honor,” Kelleher went on. “For instance, if I wanted a Russian worker for any special purpose, we might get him from New York for that case…. I have made it a point to get men who have not been connected with any private detective agency. Many of our men are lawyers and university graduates.” Their goal was to observe, he insisted, not to make trouble.

“Well,” Judge Anderson replied, “in these times of hysteria, I wonder no witches have been hung during the last six months.” An eerie silence hung over the courtroom for a moment as every reporter jotted down what Anderson had just said. His remark would appear in newspapers across the county, a federal judge comparing Palmer’s Red Raids with the Salem witchcraft trials.

Felix Frankfurter finished his questioning of Kelleher after a few more questions and then sat down. He would take turns with his fellow professor, Zechariah Chaffee, questioning other officials the rest of the day. But the damage had already been done.

Edgar watched in silence, sitting at the government table and whispering occasionally to the other lawyers, as Kelleher, his best bureau chief and a man who knew how to keep secrets, fell into trap after trap. Edgar could not help but notice how chummy things were between Judge Anderson and his two

Harvard Liberal Club friends, Frankfurter and Chafee, the judge taking turns with the lawyers mocking Edgar’s operation. He saw how Frankfurter flitted about the room, sharing private jokes and asides with the lawyers, charming even Edgar’s own federal prosecutors Boynton and Goldberg. To his eye, this was no fair courtroom. It was a joke, a setup from start to finish, a stacked deck, and the judge’s wisecrack about hanging witches was sheer grandstanding. By Friday, Edgar had seen enough. He went home to Washington.

Goldberg contacted him the next week and asked him to come back to Boston and testify in the case. Edgar refused.

There was nothing else he could do in Boston in that kangaroo court. Felix Frankfurter might have won today’s battle, but Edgar would not let him win the whole war.

Besides, he had another fight to finish. On the same day as he watched Frankfurter skewering his bureau chief Kelleher on the witness stand, Edgar had gotten word that Louis Post had thrown one more fistful of sand in the government’s gears, canceling a deportation order in a test case. If this stood, it meant that a thousand others would be thrown out with it. This too must not stand. For Edgar, it was a confusing and frustrating moment, attacked on all sides, betrayed and mocked. But he remained confident. He could always count on Mitchell Palmer. Palmer would know what to do.

 

By Danny Fenster

ticklethewire.com

There has been an avalanche of opinions voiced by ex-FBI agents and current ones over the  film “J Edgar” and his portrayal as being gay. Now, some Gay rights advocates are weighing in.

“I don’t know specifically why current officers object to the claim that Hoover was gay,” Jacob Appel, a New York-based lawyer that has written and advocated for gay and lesbian rights, told ticklethewire.com. “If their concern is solely for historical accuracy, and they don’t feel there is evidence to support that claim, then that’s certainly a reasonable position.”

“On the other hand, if these individuals actually believe that being gay would somehow tarnish Hoover’s image–and I sincerely hope that no one in the FBI holds such deeply misguided views today–then their positions would reflect the sort of bigotry and ignorance that have no place in civilized society,” said Appel.

Clint Eastwood has produced the  film and Leonard DiCaprio plays the legendary Hoover. The film portrays Hoover as having a romantic relationship with Clyde Tolson, his number two man in the bureau.

Some agents, and particularly some retired agents who still idolize Hoover, credit him with building a world-class law enforcement agency, and have expressed concern about his portrayal as being gay.

Many say there’s no evidence that Hoover was gay. Instead, they argue that he was married to the job and that he was essentially asexual.

“I find it interesting that Hollywood has no proof of Hoover being a homosexual, a story that was sparked by a discredited author,” former FBI official Anthony Riggio recently wrote in a column for ticklethewire.com. “Yet it tickled the media’s fancy and now the media can’t get over it, and every chance they get, they herald this unfounded suspicion.”

Then again, there are some FBI agents today who simply could care less.

Eastwood has caught some flack for the portrayal, but defends the film.

“It’s not a movie about two gay guys,” Eastwood told GQ. “It’s a movie about how this guy manipulated everybody around him and managed to stay on through nine presidents. I mean, I don’t give a crap if he was gay or not.”

DiCaprio says he’s not sure of Hoover’s sexual orientation.

“If I were a betting man, I actually don’t know what I would bet,” he told GQ.

Some gay rights advocates concerns are not just over the negative reactions from some FBI and former FBI agents, but of Hoover himself.

Rod Hearne, the Executive Director of the Seattle-based Equal Rights Washington,  comments:

“In 2011 it’s hard to imagine that two such powerful, unmarried, near-constant companions as J Edgar Hoover and Clyde Tolson would be seen as anything but gay.

“If the FBI and J Edgar Hoover’s friends and associates resist the notion that the blackmailing, extorting, empire-building, racist, homophobic man was gay, fine, whatever they wish to think. The straights can have him.”

Author Ronald Kessler, who penned the book “The Secrets of the FBI”, wrote in an article on the website Newsmax:  ”Hoover and Tolson, both bachelors, were inseparable. They ate lunch together every day and dinner together almost every night. They vacationed together, staying in adjoining rooms, and they took adoring photos of each other.”

The relationship with Tolson, he wrote,  “points to Hoover’s being gay.  Most telling, when Hoover’s will was probated, Tolson received his estate  estimated at $560,000 … the equivalent of $2.9 million today. The bequest to Tolson was the final word on the closeness of their relationship and another indicator that Hoover was gay.” Kessler called the movie’s portrayal of their relationship a “legitimate dramatization.”

Appel, the New York lawyer, says if there is evidence that Hoover was gay, or for that matter, a cross dresser as some have suggested,  it would be a matter of “public historical interest…especially in light of his fierce and nearly monomaniacal persecution of gays and lesbians throughout his career.”

Bit what is far more important, he said, is “to remember the shameful legacy that Mr. Hoover left this country with in regard to his persistent hounding of ethnic, sexual and ideological minorities … Mr. Hoover squandered tax-payer dollars in a bizarre and longstanding effort to expose the supposed (and extraordinarily unlikely) homosexuality of Adlai Stevenson, one of our nation’s great statesmen and patriots.”

Appel called Hoover a “divisive and destructive figure, whether or not he slept with Clyde Tolson.”

But not all the gay rights advocates have such pointed views.

Christian Berle, the Executive Director at Log Cabin Republicans, which works within the Republican party and advocates for gay and lesbian rights, was far more cautious in his statement to ticklethewire.com:

“Speculation as to J. Edgar Hoover’s sexuality has a long history, and it is natural that Clint Eastwood might want to explore that angle in this film. At the same time, it is understandable that members of the FBI and those who value his memory would be concerned that Hoover’s story be treated with respect and dignity. Whatever Hoover’s orientation may have been, the world today is a much different place than when he was at the helm of the FBI, and Americans can be proud that today’s FBI has a solid record of nondiscrimination.”

Most certainly the controversy over the movie’s portrayal of Hoover’s sexuality will help bolster tickets sales.

Nontheless, Warner Bros.. which is producing the film,  is remaining equally tight-lipped about the portrayal.

“We respectfully decline to comment on the portrayal (of Hoover’s sexual orientation), “their online press spokeswoman Anne Chun told ticklethewire.com.

By Danny Fenster

ticklethewire.com

Chatty ex-Ill. Gov. Rod Blagojevich may have gotten an added stretch of freedom when a federal judge  in Chicago decided this week to delay his Oct. 6 sentencing date. But legal observers are convinced the reprieve is only temporary and that he’ll get some serious prison time. Predictions range from 8 to 25 years.

“I’m just giving voice to whats generally been a consensus in the community,” said Rodger Heaton, a former U.S. Attorney for Central Illinois and currently with the law firm Hinshaw & Culbertson, “but I’ve been hearing a projected estimate of eight to fifteen years. Some people have also said ten or 11.”

Dick Simpson, a professor of political science at the University of Illinois-Chicago and frequent commentator on local news, echoes those sentiments.

“My guess is ten to 15 years,” Simpson said in an phone interview. “You have to look at other similar cases, and in particular I’m looking at former Governor George Ryan.” Ryan, the Illinois governor immediately preceding Blagojevich, is serving a six-and-a-half-year sentence after being convicted on federal corruption charges in 2006, though sentencing guidelines counseled for more.

“You have to look at both, and you figure how much worse one was than the other,” said Simpson.

Blagojevich engaged with the national media in a way few criminal defendants have. He went on a lengthy tour of popular television news and talk shows like the Late Show with David Letterman and the Daily Show and pleaded his innocence.

Though there is nothing in the federal sentencing guidelines that talks specifically about that sort of media engagement, says Heaton, it may significantly influence the sentencing judge’s perceptions of Blagojevich’s sense of remorse.

“Throughout, on his television appearances, he showed a failure to accept responsibility for his actions. He maintained his innocence and seemed to be willing to do anything to continue maintaining that,” said Heaton. “I think that will be one factor.”

In his first trial, Blagojevich was convicted on only 1 of 24 counts. The jury deadlocked on the remaining ones. But in the second trial, the prosecution trounced him, getting convictions on 17 of 20 counts. Technically, he faces up to around 250 years, but the sentencing guidelines call for far less. He has been free on $450,000 bond, having put up his North side Chicago home and a D.C. condo as collateral.

Some report that prosecutors will seek a 30 year sentence.

“[James Zagel, the sentencing judge] will be reasonably unhappy about the crime itself–he’s a former U.S. Attorney, a former state employee,” said Simpson, and he will not take kindly to a violation of the public trust. Still, most experts don’t predict the higher end of the sentencing. “You have violent crimes that get less than 30 years,” said Simpson.

 

A Dissenting Opinion

Unlike many defendants, Rod Blagojevich testified at his own trial the second time around. And because the jury, in convicting him, rejected his testimony, he in effect lied under oath. He was convicted of violating the public trust, a sad theme that has played out in Illinois’ politics for decades.

All of these factors were cited by Jami Floyd in predicting a sentence of 20 to 25 years. Floyd is a long-time legal correspondent for national news outlets. She got her law degree from the Boalt Hall School of Law at the University of California, Berkeley, and served as a law clerk at the California Supreme Court and had her own civil and criminal law practice.

“For me, the Madoff case is most instructive,” said Floyd. She had predicted back then that Madoff would get a long sentence, even life, while many others were predicting much lower sentences. Madoff, now 73, didn’t put up much of a legal fight and pleaded guilty in 2009. He ended up getting a whopping 150 years in prison, which will undoubtedly keep him behind bars for the rest of his life.

Denny Chin, the federal judge in that case, received a request from Madoff’s defense asking for a 25-year sentence, something that could potentially have given Madoff some hope of experiencing freedom once more before passing. Chin thought about the proposal and, according to an account in the New York Times, even asked his interns for an opinion. They suggested a 75-year sentence, less than the maximum but still effectively a life sentence.

“Splitting the baby, to me, was sending the wrong message,” he later told the New York Times, explaining his harsh, uncompromising sentence. “Often that’s the easy way out, but as we know from the old parable, that wasn’t the right thing to do.” While none of Madoff’s charges called for a life sentence, Chin ended up stacking the maximum sentence for each count.

“And he’s right,” Floyd said of Chin. “We give judges discretion for a reason. In Blagojevich I predict a similar result … Judge Zagel will depart upward from the sentencing guidelines in this case to give Blagojevich 20-25 years,” she said.

Such a sentence in the context of public corruption would be “dramatic” and “unprecedented,” Floyd acknowledged, but the leniency shown to Blagojevich’s predecessor, former Governor Ryan, is a “recommendation for a harsher sentence here,” said Floyd. “I would argue that Blagojevich needs to be the example.”

“He himself is a former prosecutor; yet he lied on the witness stand and, perhaps most significantly, learned nothing from the culture of corruption in Illinois. I expect this prosecution team to be very agressive at sentencing,” Floyd said. “It will be the Government’s intention to send a message … whenever the hearing occurs.”

“Judge Zagel will not choose a number arbitrarily; nor will he compromise with a figure, say, halfway between zero and 300 years,” Floyd said. “But symbolism will be hugely important, given the enormity of Blagojevich’s crimes and the history of the state.”

The Sentencing Judge

James Zagel joined the Cook County attorney’s office in 1965 after graduating from the University of Chicago, according to a profile in the Chicago Tribune. He went on to run the Illinois attorney general’s criminal division, where he was remembered for his “encyclopedic memory.”

“He can sit down and write a legal pleading and fill in the citations, including the page numbers, without bringing out a book,” said Jayne Carr, a former colleague, told the Tribune.

Zagel was appointed to the federal bench in 1987 by Ronald Reagan. In 2008 he was appointed to a seven-year term on the secretive Foreign Intelligence Surveillance Court by Supreme Court Chief Justice John Roberts, which he does in addition to his service as a federal judge. The intelligence court decides whether to issue warrants for electronic eavesdropping on terrorism suspects.

But perhaps most surprising are Zagel’s accomplishments outside of the courts. Zagel has appeared in two Hollywood movies–as the grieving son of a murder victim in David Mamet’s 1991 “Homicide,” and, obviously enough, as a Chicago judge in the 1989 film “Music Box.” He has also written a novel, 2002′s “Money to Burn,” about a federal judge that gets away with a heist at the Federal Reserve Bank in Chicago.

Once again at sentencing, whenever that might be,  Judge Zagel will take center stage as a central figure in what could easily be a movie — one with a another sad ending for another ex-Ill. governor.