A news story published yesterday in the Columbia, South Carolina State raises ethical questions about the incestuous relationship between journalists and official sources. You can read that story, written by Andrew Dys here.
Essentially, journalism has two components, one artistic and the other mundane. The mundane component involves collecting and brokering information obtained from public documents and human sources. Ideally, a reporter will find a story to tell in the information he has collected and then tell it cogently. Dys is a cogent writer but his statements are often so wrong than the State does a disservice to the people of South Carolina by publishing them.
The State’s Story
Dys and the State newspaper have lied to their readers and the lies are so careless and misleading that at least some of them must be answered.
In his lead, or as journalists usually write it “lede,” Dys states that five “bikers connected to the Rock Hill Hells Angels” will be sentenced today. In fact, two people were to be sentenced today and one of them was a woman accused of delivering 50 legally obtained Percocet pills to a paid FBI informant and agent provocateur named Joseph Dillulio. The transaction was illegal and the woman, named Johanna Looper, would never have profited from it except by subterfuge. Dillulio engaged Looper in conversation after she made the delivery. He asked how she was. Looper who was indigent and desperate replied honestly and Dillulio presented her with a gift of $40. On that basis, Looper was charged with narcotics conspiracy, a crime which carries a penalty of 20 years in prison. In January, Looper threw herself at the mercy of the court and pled guilty. Federal justice is so blatantly unfair that about 92 percent of all federal prisoners plead guilty to something whether they are factually innocent or not.
Looper pled guilty because the United States no longer has an adversarial system of justice but rather an administrative system of justice in which the key question is not about guilt or innocence but about how to speed accused persons to prison in the most efficient manner. Cooperative defendants always fare better in the federal courts that uncooperative defendants who insist on their innocence. In the words of David O. Carter, a former Marine and a U.S. District judge in Orange County, California, “If the people knew what goes on here (in federal court) they would burn the courthouse down.”
The State couldn’t find news in that.
Dys then wrote, “The Hells Angels were a gang, federal prosecutors proved at trial earlier this year in U.S. District Court in Columbia. A gang that was no different than black or Hispanic street gangs, the Mafia gangs of Italian whites, that police and courts in America repeatedly prove maim and kill and sell drugs and intimidate those who try to stop them, prosecutors argued.”
In fact, no such thing was proven even after five of the defendants insisted on a trial.
After a month-long trial, one of the defendants, named Thomas Plyler, was found not guilty. Plyler beat the odds. About 90 percent of all federal defendants who insist on a trial are convicted anyway. The conviction rate in federal court exceeds 99 percent for three reasons. First, prosecutors play pernicious games in federal court including the hiding of evidence of actual innocence and strategies that include “evidence dumps.” A legal scholar named Bennett L. Gershman writing in the Case Western Reserve Law Review probably coined the term “Games Prosecutors Play” to describe the entrapments, “sentence entrapments” and discovery strategies that prosecutors usually describe as “stings.” One federal prosecutor in Los Angeles in another motorcycle club case memorialized the term “guerilla street theater” as an alternative to sting. An attorney named Andrew Carlon writing in the Virginia Law Review described what goes on in federal courts as a manifestation of “The Sadistic State.”
It is, Carlon wrote, “a system where…incentives and motives have short circuited: The emergence, irreducible to its individual components, of a state run amok. It is a state that has decided that, since its unique function is the power to punish, it must pursue punishment as an intrinsic good, independent of desert (or, indeed, of the other, more consequentialist aims of punishment), transforming itself into a ‘punishment machine.’ But as we have seen, punishment without desert reduces to sadism. We get the ‘sadistic state,’ which wields power, most fully realized through the infliction of pain, as an end in itself, the human beings in its power merely means to that awful end.”
One of the most sadistic facets of this case, which was originally titled U.S. versus Daniel Bifield et al., was a strategy of blackmailing defendants into plea deals by criminally charging their significant others. Two wives (Somying Anderson and Lisa Bifield) and one girlfriend (Looper) were charged with participating in what Dys thinks was a Hells Angel conspiracy. Charges were dropped against Anderson just before the beginning of trial because the case against her was always nonexistent. After the prosecution rested in the trial, Judge Cameron McGowan Currie dismissed all charges against Looper’s boyfriend, Donald Boersma. But the strategy did work on the lead defendant, Daniel Bifield, who pled guilty last December 27th in order to spare the woman who is clearly the love of his life. “I fell on my sword and did the right thing” the romantic Bifield said. It did not work. Mrs. Bifield still faces at least seven years and up to life in prison. Dan Bifield thought he had been double-crossed and attempted to renounce his plea agreement. He failed because it is a particularly decadent agreement. In that document Bifield waived “the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action.” It was, in short, a pact with the devil signed in blood. Bifield also “agreed” to frustrate the sort of work Dys should be doing. He waived “all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including without limitation any records that may be sought under the Freedom of Information Act….”
Dys also misrepresents the federal statue that allows defendants accused of state crimes to be charged with federal crimes that carry penalties that are ten to twenty times more severe than those in state court – RICO.
The Racketeer Influenced Corrupt Organizations law was the centerpiece of the Organized Crime Control Act of 1970. It was written by a Senatorial aide named G. Robert Blakey, who is now the William and Dorothy O’Neill Professor of Law at Notre Dame. And, it is named for the fictional character Rico “Little Caesar” Bandello who was inhabited on film by Edward G. Robinson. Robinson’s Rico character, in turn, was a parody of Alphonse Gabriel “Scarface” Capone. Shortly before he went to jail for tax evasion, Capone tried to get out of rum running and into the milk business. RICO was intended to prevent future gangsters from using criminal funds to infiltrate legitimate “enterprises.”
The original intent of RICO was lost when the Supreme Court redefined the meaning of the term “criminal enterprise” in a case titled United States versus Turkette. After Turkette, enterprise no longer meant a bar, bowling alley or dairy that had been corrupted by a “mob.” Turkette changed the meaning of ‘criminal enterprise” to any group of three or more people who among them committed two or more crimes in the previous decade. The Columbia Law Review excoriated the decision for creating “the crime of being a criminal.” Practically, the redefined RICO allowed federal prosecutors to federalize any crime.
Dys tells the State’s readers that RICO is “used to prosecute the worst criminals. Sentences for RICO require the razing of forests of trees to print all the pages of numbers of years in a prison” and he quotes a former prosecutor named Miller Shealy who says, “RICO is what people remember is used in Mafia trials. RICO is the huge hammer for the prosecution. RICO is about the worst punishment there is.” Dys’ recounting of whatever Shealy actually said is both dissembling and perjorative.
Dys goes on to claim that “prosecutors proved the case against 15 of 20 Hells Angels members and associates” which is also inaccurate. What prosecutor Julius Richardson did was convince a majority of the defendants to sign plea and sentencing agreements which is entirely different than proving guilt. Coerced confessions in plea deals are considered heresay.
Journalism And Propaganda
Dys work on this case represents the seedy underside of reporting in the autumn of print journalism. Federal cases like Bifield are increasingly secretive. Prosecutors hide great chunks of cases in order to gain a competitive advantage over defendants and to frustrate the press from telling citizens “what goes on here” lest citizens “burn the courthouse down.” Consequently reporters often depend on police and court house sources to tell them what the story is. There is no getting around that for most of what is still left of the working press. Unscrupulous prosecutors can simply refuse to talk to reporters who don’t cooperate. So gutless reporters, as opposed to Woodward and Bernstein, cooperate and keep their jobs. The State should not be condemned because it is gutless. Nobody expects the State to be the Washington Post.
However, even gutless reporters can remain cynical and skeptical in their hearts. Even today, there is a bright and clear line between collaborating with injustice and cheerleading for it. That is the line Dys and the State have crossed.
Twice in the last month Dys has vilified defendants in this case. On April 15th Dys wrote: “The Hells Angels must have forgotten the page in the codebook that says the United States government does not allow selling methamphetamine, cocaine and assault rifles to be used in crimes, money laundering and ongoing criminal enterprise kept alive by intimidation and fear.” Dys seems to assume that “the Hells Angels” Motorcycle Club was on trial because, he also seems to assume, members of that club are all soulless thugs rather than fellow passengers on the sinking American boat. The prosecution tried to promote that fiction but that was not what the Bifield case was about. The case was about spending millions of dollars to entice innocent people to break the law on hidden camera – like Candid Camera in hell.
About the lead defendant, Dys wrote: “He did not say whether he approved of himself, his associates and other outlaw bikers selling narcotics and guns that end up in the hands of school kids who get shot or turn into junkies or go to prison later as dope dealers.” It is completely untrue that the Hells Angels as a group or the defendants in this case are responsible for the death or corruption of school children and it is irresponsible to say so.
Dys also says: “It was proved in court: Rock Hill Hells Angels and associates sold drugs and guns and laundered money as part of a crime ring that reached as far as New England, with leadership of the group getting kickbacks from all the criminal activity.” None of that was proven at trial. The “crime ring” to which Dys refers was a fairy tale.
In yesterday’s story Dys claims “the final outcome” of the case was what “the public demanded and prosecutors delivered.”
The final outcome of this corrupt and completely invented case was that people still don’t know what goes on in federal court. Dys is not a journalist. He is a propagandist. The State should apologize to its readers and reconsider its coverage of the case.