David Olmsted: Guest opinion | AspenTimes.com

David Olmsted: Guest opinion

Rick Carroll’s observations about the byzantine workings of the war on drugs are exactly right (“In cocaine case, it pays to snitch,” Opinion, March 5, The Aspen Times). But Monty Chitty’s prosecution is a textbook example of the way the criminal-justice system has worked for a long time.

Prior to the enactment of the federal Omnibus Crime Control Act of 1984, the most “down time” a convicted pot smuggler was looking at was five years, regardless of the quantity of weed smuggled. The entrepreneurs who lined up outside the Houma, La., and the Brooklyn Shipyard ports with multi-hundred-ton loads of pot encased in the false hulls of tankers faced the same “time in” as the smaller-scale bale droppers who crowded the skies over Davie, Fla., or, for that matter, the lid dealers on campuses across the country.

As an economy-of-scale issue, it paid to be big. Even with a five-year hit (excuse the pun), before 1984 the federal parole system provided that a convicted dealer would be out in two-thirds of his sentence and often less with good behavior. It was called a “mandatory out date.” Do the math: Hundreds of thousands, or often millions, of tax-free dollars socked away for easy access after a couple years honing one’s tennis game in federal prison camp, Danbury, Conn., or learning the fine skills of cattle ranching at Lompoc, Calif. There was little violence, and it was bad karma to rat out one’s friends.

The cocaine trade was a different game. First, the money was much bigger for a given weight of product. A smuggler could get more profit in one Aero Commander Turbo load of coke involving just a few people than in a tractor-trailer full of weed that required crews to move. And as the risk of a long prison sentence for cocaine distribution was real, the incentive for violence and/or cooperation was considerable.

But the passage of the Omnibus Crime Control Act changed the equation. First, the act eliminated the parole system. Overnight, literally, the potential risk for dealing pot went from 40 months to life. And with the elimination of parole for federal inmates, life meant what’s known in the business as “pine-box life” because that’s the container in which a lifer leaves prison. Second, minimization of exposure replaced karma as the mantra when the DEA came knocking. While the biggest threat law enforcement could make before 1984 was, “You’re looking at 31⁄2 years, scumbag,” in the post-Omnibus Crime Control Act era, the refrain became, “Go ahead, talk to your asshole lawyer. Have him explain minimum mandatory sentences, and then call me. You’ve got 24 hours.”

Which brings us to the third way the Omnibus Crime Control Act changed the drug-prosecution game and back to Monty Chitty. The act replaced the parole board with sentencing “guidelines” for all federal crimes.

Sentences now are a mathematical calculation. A defendant’s expected time starts out at a certain “level,” which translates into a certain number of months of incarceration. There are certain additions or deductions from that beginning level. If the defendant exercised a particular skill or expertise in his crime, the calculation bumps up his sentence. The amount of drugs matters, as do prior convictions. There also are downward “adjustments.” Stealing food to supply a homeless shelter is less egregious mathematically than boosting liquor from a delivery truck.

So, if sentencing in federal court is a formulaic procedure, why ever cooperate with law enforcement? The answer is that if you’re a cop or a prosecutor, the guidelines have something for you in the sections “downward departure” and “acceptance of responsibility.”

A downward departure is a request by the prosecutor that the judge “depart” from the guidelines to a number of months below the calculated range. Although a prosecutor may request a downward departure for several reasons, those requests are most often the result of the “substantial assistance” provision of the scheme, both “substantial” and “assistance” being in the myopic eyes of the government.

While “substantial assistance” and “acceptance of responsibility” are thematically connected, it is the latter that does the job for agents. Let’s follow Marty into the confessional.

“Forgive me, father, for I have sinned. I have taken the Lord’s name in vain, and I have coveted my neighbor’s wife.”

“How so, my son?”

“I stare at her a lot, father. I watch her through the blinds when she gardens in those skimpy little shorts. And I think about her all the time, three or four times a night when I’m home alone. Can I be forgiven, father?”

That would seem to be appropriate expiation, but that’s not how this war works.

“Who else do you know who covets this woman?” Marty is asked.

“I’m sorry, what do you mean?”

“C’mon, Marty, if she’s that hot some of your friends must want to bang her, too. How about that O’Shaughnessy, he’s a degenerate. Give me names or I can’t help you. How about you wear a wire when you play golf tomorrow, get your friends to talk about this woman. You can do it. Otherwise, Marty … well, you don’t want to know the otherwise.”

In this system it is never enough to admit to every crime you have ever committed because once you’re indicted the agents no longer care what you did. They want to move on and they want you to drive the train. The system assumes that no one is ever sorry for what they did, only that they got caught.

To offset that dissembling, it is required that a defendant genuflect, commit an act of obeisance by bringing others to the confessional. The problem often evolves that if you get on the train late, especially if you were a nobody in your career, you may have no sacrifice to offer up, no Get Out of Jail Free Card. A former client and valley resident, who got into the drug game long before 1984, was involved in a scheme to bribe a federal judge. He kept that information in his memory because he intuited that some day he would need such a card to play and, indeed, the day eventually came. But most players, especially the relatively small time dealers here, don’t often have that kind of information to sell.

Mr. Chitty’s defense was that all the prosecution witnesses were lying, that although he never committed a crime the government strong-armed real drug dealers into fabricating a story. His witnesses were apparently called to testify that they never saw him possess or sell cocaine. That’s the equivalent of Herman Cain arguing that he knows hundreds of women he never sexually harassed. It’s a tough defense to sell, especially without selling it personally from the witness stand.

Ironically, the theory behind the implementation of the guidelines was that sentencing was too whimsical, too inconsistent from judge to judge. It was meant to eliminate the vicissitudes of the previous system where the draw of the right or wrong judge could make a huge difference at sentencing. A noble goal on paper, but in application it has given federal prosecutors and agents enormous influence, if not control, over who gets whacked for what and how hard.

The drama that played out in the Denver courtroom is played out hundreds of times around the country each day. If you sit at the prosecution table during trial it’s a great view;if you have to wear Crocs in the courtroom, it sucks. But as surely as we need snow, we know that between now and sentencing, prosecutor Korver will offer Monty some version of a grand bargain and the ball will be back in his court.

Aspen resident David Olmsted is a former police officer and now a private investigator specializing in criminal defense. He currently is writing a book about the 1985 murder of Steven Grabow in Aspen and the 1996 Tucson, Ariz., murder of Gary Triano.

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