My brother Rod, the former governor of Illinois, was convicted and sentenced to 14 years in federal prison in December 2011. In August, Judge Zagel re-imposed the same 14-year sentence he had originally imposed. I was there to represent our family as his only blood relative.
In my wildest dreams, I never imagined being implicated in a national scandal. But that’s exactly what happened in 2008 when I was accused of conspiring with my brother to sell Barack Obama’s senate seat to the highest bidder. This was the beginning of my journey into the Kafkaesque world of the US criminal justice system, an unfair system in urgent need of repair.
If convicted on all counts, I could have been sentenced to 5-7 years in prison. After a lengthy trial in 2010, a federal jury was hung on each of the four charges I faced. My brother was convicted on one of 24 charges, with the jury hung on the remaining 23. The government soon dropped the case against me, but retried my brother a year later. He was found guilty on seventeen criminal charges and has been in prison since March 2012.
My experience as a defendant was eye-opening. As an army veteran, former corporate executive and now small business owner, I always gave my government the benefit of the doubt on anything to do with criminal justice. I naively thought that the duty of a prosecutor was to seek justice in all criminal matters by abiding by the words found in the Department of Justice mission statement “to ensure fair and impartial administration of justice for all Americans.”
Sadly, the system didn’t stand up to that ideal for me and doesn’t for tens of thousands of Americans of all races and economic stations. Far from being impartial, it is, I believe, weighted heavily against defendants.
Being a defendant—even one exonerated- took a huge toll on my family, my health, my business, and my bank account. I wouldn’t wish that on anyone. My parents always told me that life was full of disappointment, not to dwell on the negative and to learn to channel it into something positive. One way to do that is share what I learned from my unique perspective.
* I learned the DOJ has a 96% conviction rate. There’s a sinister reason for that. Most convictions result from plea agreements. According to some reports, as many as 20,000 innocent people are in US prisons today after pleading guilty because they could neither afford to pay for a protracted legal battle or feared that if they went to trial and lost the penalty/ prison term would be greater. Not many people can afford the hourly rate for a lawyer to represent them. The government knows this and uses it to its advantage.
*I learned the DOJ overcharges. Throw enough mud at the wall and some of it will stick is the mantra of many prosecutors. So the department charges defendants by stacking 2, 3, or 4 different federal laws for each alleged act to ensure that future jurors convict on at least one of them. As Harvey Silverglate, champion of civil liberties, wrote in his excellent book, Three Felonies A Day, “Citizens who believe they are law-abiding may, in the eyes of federal prosecutors, be committing three felonies a day.”
*I learned that when the DOJ gets authorization for wiretaps, beware. Prosecutors often take isolated statements from your wiretapped conversations that do not demonstrate criminal intent and weave them into a narrative that justifies an indictment. I was wiretapped for 50 days, over 1500 calls, 284 of them personal with my wife and son, If it can happen to me, it can happen to you! A recent study conducted by the Federal Judiciary concluded that, “No wiretap applications were reported as denied in 2015.”
*I learned the DOJ will cynically charge family members if they think it can help them get a conviction. I believe I was indicted to be used as leverage against my brother for a plea deal. If I would get Rod to cut a deal with the prosecutor to avoid trial, then I, an innocent man, might get favorable consideration of a lesser penalty in exchange.
*I learned that finding a good lawyer is especially hard if you’ve never been in legal trouble. Where do you start? As a business person, I had some familiarity with lawyers, but many accused of crimes do not. I was lucky to have found someone who knew how to apply the law, had knowledge of the system, was fearless facing off with federal prosecutors, knew where to go to get additional resources, prepared me to testify and most of all was exceptional helping me deal with the uncertainty I lived with everyday leading to trial.
*I learned the ‘revolving door’ at the DOJ is a siren’s call for many ambitious prosecutors who push the limits of a fair and impartial prosecution in order to win at all cost. The more plea deals and sensational, headline grabbing convictions they get, the better, because it pads their conviction record and enhances job prospects. Not to be cynical, but I believe they know the more convictions they get, the greater the chance they’ll land a high paying job with a prestigious law firm after they leave government.
*I learned all federal prosecutors enjoy protection from civil lawsuits by former defendants who might have been unjustly prosecuted. Sovereign immunity is a legal doctrine that essentially says that prosecutors can do no wrong. After the government dropped all charges against me, I had no recourse against them for unjustly prosecuting me. It cost me hundreds of thousands of dollars and two years of my life to defend myself. Few people accused of criminal activity have the means to do so. Every defendant—innocent or guilty—faces an uphill battle against prosecutors backed by the unlimited resources of the state. Unjust, misguided prosecutions against innocent people occur daily in this country. We need to demand that abusive prosecutors are not protected by sovereign immunity, but are held accountable when they go too far in their zeal to win at all cost. The threat to our civil liberties is real. Now is the time to act.