Paying For Your Innocence
The Justice Department's Terwilliger says that in some cases "dumb
judgement" may occasionally cause problems, but he believes there is an
adequate solution. "That's why we have courts." But the notion that
courts are a safeguard for citizens wrongly accused "is way off," says
Thomas Kerner, a forfeiture lawyer in Boston. "Compared to forfeiture,
David and Goliath was a fair fight." Starting from the moment that
the government serves notice that it intends to take an item, until any
court challenge is completed, "the government gets all the breaks,"
says Kerner. The government need only show probable cause for a
seizure, a standard no greater than what is needed to get a search
warrant. The lower standard means the government can take a home without
any more evidence than it normally needs to take a look inside.
Clients who challenge the government, says attorney Edward Hinson of
Charlotte, N.C., "have the choice of fighting the full resources of the
U.S. treasury or caving in."
Barry Kolin caved in. Kolin watched Portland, Ore., police padlock
the doors of Harvey's, his bar and restaurant for bookmaking on March 2.
Earlier that day, eight police officers and Amy Holmes Hehn, the
Multnomah County deputy district attorney, had swept into the bar,
shooed out waitresses and customers and arrested Mike Kolin, Barry's
brother and bartender, on suspicion of bookmaking. Nothing in the
police documents mentioned Barry Kolin, and so the 40-year-old was
stunned when authorities took his business, saying they believe he knew
about the betting. He denied it. Hehn concedes she did not have the
evidence to press a criminal case against Barry Kolin, "so we seized
the business civilly." During a recess in a hearing on the seizures
weeks later, "the deputy DA says if I paid them $30,000 I could open up
again," Kolin recalls. When the deal dropped to $10,000, Kolin took it.
Kolin's lawyer, Jenny Cooke, calls the seizure "extortion." She
says: "There is no difference between what the police did to Barry
Kolin or what Al Capone did in Chicago when he walked in and said, 'This
is a nice little bar and it's mine.' the only difference is today they
call this civil forfeiture.''
Minor Crimes, Major Penalties
Forfeiture's tremendous clout helps make it "one of the most effective
tools that we have," says Terwilliger. The clout, though, puts
property owners at risk of losing more under forfeiture that they would
in a criminal case under the same circumstances. Criminal charges in
federal and many state courts carry maximum sentences. But there's no
dollar cap on forfeiture, leaving citizens open to punishment that far
exceeds the crime.
Robert Brewer of Irwin, Idaho, is dying of prostate cancer, and uses
marijuana to ease the pain and nausea that comes with radiation
treatments. Last Oct. 10, a dozen deputies and Idaho tax agents
walked into the Brewer's living room with guns drawn and said they had a
warrant to search. The Brewers, Robert, 61, and Bonita, 44, both
retired form the postal service, moved from Kansas City, Mo., to the
tranquil, wooded valley of Irwin in 1989. Six months later, he was
diagnosed. According to police reports, an informant told authorities
Brewer ran a major marijuana operation. The drug SWAT team found
eight plants in the basement under a grow light and a half-pound of
marijuana. The Brewers were charged with two felony narcotics counts and
two charges for failing to buy state tax stamps for the dope. "I
didn't like the idea of the marijuana, but it was the only thing that
controlled his pain," Mrs. Brewer says. The government seized the
couples five-year-old Ford van that allowed him to lie down during his
twice-a-month trips for cancer treatment at a Salt Lake City hospital,
270 miles away. Now they must go by car. "That's a long painful ride
for him... He needed that van, and the government took it," Mrs. Brewer
says. "It looks like they can punish people any way they see fit."
The Brewers know nothing about the informant who turned them in, but
informants play a big role in forfeiture. Many of them are paid,
targeting property in return for a cut of anything that is taken. The
Justice Department's asset forfeiture fund paid $24 mil. to informants
in 1990 and has $22 million allocated this year. Private citizens who
snitch for a fee are everywhere. Some airline counter clerks receive
cash awards for alerting drug agents to "suspicious" travellers. The
practice netted Melissa Furtner, a Continental Airlines clerk in Denver,
at least $5,800 between 1989 and 1990, photocopies of checks show.
Increased surveillance, recruitment of citizen-cops, and expansion of
forfeiture sweeps are all part of a take-now, litigate-later syndrome
that builds prosecutors careers, says a former federal prosecutor.
"Federal law enforcement people are the most ambitious I've ever met,
and to get ahead they need visible results. Visible results are
convictions, and, now, forfeitures," says Don Lewis of Meadville,
Crawford County. (ED: a Pa county north of Pgh by two counties.)
Lewis spent 17 years as a prosecutor, serving as an assistant U.S.
attorney in Tampa as recently as 1988. He left the Tampa Job -- and
became a defense lawyer -- when "I found myself tempted to do things I
wouldn't have thought about doing years ago." Terwilliger insists
U.S. attorneys would never be evaluated on "something as unprofessional
as dollars." Which is not to say Justice doesn't watch the bottom
line. Cary Copeland, director of the department' Executive Office for
Asset Forfeiture, says they tried to "squeeze the pipeline" in 1990
when the amount forfeited lagged behind Justice's budget projections.
He said this was done by speeding up the process, not by doing "whole
lot of seizures."
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