Conspiracy, The Prosecutor’s Darling

CONSPIRACY, THE PROSECUTOR’S DARLING

by Loren Edward Pearce

In a recent Facebook post, a meme stated, “You better start caring about the trial going on Nevada right now.  Your rights depend on the outcome.”

For many of us, the process of watching the wheels of injustice turn in the courtroom has also turned our stomachs as we witness first hand our awful situation.  Like draining the swamp, we have left our comfortable easy chairs, our EAR (entertainment, amusement and recreation) lifestyle, to watch as federal judges and prosecutors expose their corruption, their twisted logic and most of all, their departure from the original intent of the framers of the constitution.  Like the ignorant homeowner distracted by other pursuits in life, we worked and played while the termites quietly destroyed the foundation of our home.   Little did we know how bad things were until we observed the trials going on in Oregon and in Nevada.

Among the many injustices and unconstitutional shenanigans that have been exposed by our newfound interest in the so called justice system, is the subject of criminal conspiracy.

Conspiracy, coined the prosecutor’s “darling,”, is one of the most commonly charged federal crimes.  The charge of conspiracy is a prosecutor’s darling because of the great advantage it gives to prosecutors, and the government, and the great disadvantage it gives to the accused, the defendant.  Keep in mind that, one of the intents of the founders was for prosecutors to be neutral, unbiased pursuers of truth and justice, not convictions.  Prosecutors, paid for by the people, were to represent both the government and the defendant equally, in the quest for the truth.  Today, nothing could be further from the truth as the government prosecutors are interested only in convictions and protection of their employer, the government.

The offense of conspiracy has great breadth, and prosecutors have applied it to a variety of situations.  Commentators have noted that “it is clear that a conspiracy charge gives the prosecution certain unique advantages and that one who must defend against such a charge bears a particularly heavy burden.”

The Supreme Court has described the gravity of the conspiracy offense: “For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.”

Conspiracy, a crime special to common law jurisdictions and largely unknown, except in modest forms, in continental European countries, is one of the most controversial of all substantive crimes. It affords great advantages to law enforcement, since it avoids multiple trials, permits prosecution of preparatory activity at an early stage, facilitates prosecution against organized criminality, and extends a number of evidentiary and procedural advantages to the prosecution.

At the same time, it constitutes what Justice Jackson in Krulewitch termed an “elastic, sprawling and pervasive offense” that departs from traditional requirements of liability: (1) the crime of conspiracy is vaguely defined and its contours are often unpredictable; (2) it permits conviction on acts largely mental in character; (3) its essential feature, an agreement, is often diluted to something approaching suspicion of agreement; and (4) it affords a highly tenuous basis for holding the defendant for substantive crimes committed by others. Moreover, the procedural advantages to the prosecution impose corresponding disadvantages on the defendant, disadvantages thought inappropriate and unfair when other crimes are charged.

THE FLIP FLOP HISTORY OF CRIMINAL CONSPIRACY

According to Edward Coke, conspiracy was originally a statutory remedy against false accusation and prosecution by “a consultation and agreement between two or more to appeal or indict an innocent man falsely and maliciously of felony, whom they cause to be indicted and appealed; and afterward the party is lawfully acquitted”.Conspiracy, 1 Encyclopedia of Crime and Justice 241-2 (2d ed. 2002); James Burke, Sandord Kadish,Dan M. Kahan]

Conspiracy laws originally protected the citizen from malicious prosecution, where the courtroom was used as a tool to indict and punish political enemies of those who were in positions of political power.  The conspirators and co-conspirators were the government who wrongly used the grand jury system to indict, harass and punish those who would dare oppose them.

Like a home invader who has been confronted by a homeowner with a gun in self defense, the government has seized the gun from the homeowner’s hand and turned that gun against the gun owner.   The term “conspiracy” has been hijacked from its original purpose in protecting the citizen from government and prosecutorial abuses to one where the prosecution uses it against citizens who seek to assert their constitutional rights.

The real conspiracy exists in the vast undertaking by unscrupulous and corrupt individuals who have built an empire out of government.   Vast bureaucracies and federal agencies which have a life of their own, and like any organism, a bottomless desire for self preservation and self engrandizement.  Conspiring to write and enact laws that give them leverage over any citizen who would challenge them, they conspire within their common interest, to defend and uphold their employer, the federal government, by declaring any individual who opposes them as “co-conspirators” immediately shutting down dissent and civil disobedience as the final recourse.

Ryan Bundy recently called our attention to how one-sided the Bill of Rights were.  One sided and exclusively in favor of the citizen and the accused.  The framers of the Bill of Rights knew from their own experience how dangerous centralized, federal government was and therefore made the Bill of Rights one sided because to do otherwise, would give the centralized government and empire builders, a toe hold to abuse their centralized, government power.

For example, the federal courts, to justify trying co-conspirators together rather than severing into separate trials, referred to “judicial economy” as the excuse.  Judicial economy meaning that they didn’t want to bother with the time and expense of separate trials, therefore, they would be tried together.  However, the right to a separate trial assures fairness and justice so that the the guilt of one conspirator is not automatically transferred to another defendant.   Likewise, hearsay evidence from unknown co-conspirators is admittable by the court under the guise of judicial economy.

Judicial economy is not mentioned in the Bill of Rights.   Nor is complex case nor is there anything to do with the convenience of the plaintiff, the government.  The Bill of Rights are a reminder to the government that it is a one-sided system, the protection of the accused, the protection of the citizen.

As we have noted in other articles, the federal courts have a high conviction rate, over 95%.   Is that due the overwhelming guilt of every defendant?  Is it due to the extreme competence of the prosecutors?  Or is it due to the tools that the federal team (judge, prosecutors, marshals) have given themselves, such as the tool of conspiracy charges?

Yes, we better pay attention to what is happening in the Nevada courtroom and then work to change it, lest the conspiring termites continue to eat away at the Bill of Rights and our constitutional foundations, and we, the average citizen, be prosecuted as co-conspirators with the system rigged against us.

For an in depth analysis of Federal Criminal Conspiracy and how it has evolved to be the prosecutor’s darling, please see:  Federal Criminal Conspiracy by Todd R. Russell and O. Carter Snead