EDITORIAL: The Department of "Justice" and Other Legal Fictions -Brenda Grantland, Esq., F.E.A.R. Chronicles, Vol 1. No. 3, (August, 1992) One of the reasons forfeiture laws are so incredibly devoid of due process (despite what most Americans believe to be their fundamental rights) is that they use "legal fictions" to reach the desired results (desired by the government, that is). Black's Law Dictionary (Fourth Ed.) defines a "legal fiction" as: an assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place. . . . A rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible. Let's explore a few of these "legal fictions" and see how true that definition is. Fiction # 1: The property is the guilty party The most common "legal fiction" is the fiction that the property itself is the defendant in the case -- and not the owner. Because the property is "guilty", the fiction goes, it can be forfeited without respect to the rights of its owner(s), because property, not being a person, has no constitutional rights. This has been used by courts to forfeit property without the normal due process guarantees usually provided to civil litigants - - much less those required for a criminal conviction. It was used to justify lowering the burden of proof to probable cause, and then having the burden shift to the property owner to prove the property should not be forfeited. The fiction that the property is the guilty party has also done serious damage to the innocent owner defense. Since the party is the property itself, the Justice Department argued to the Supreme Court in Calero Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1973), it should be forfeited without regard to the innocence of the owner. In other words, OUR GOVERNMENT'S LAWYERS argued it should be able to take from honest, hard-working, innocent citizens to the same extent it can take from the criminal him/herself -- if the property is "guilty". The Justice Department argued that it was okay to make the property owner strictly liable when crimes were committed using his/her/its property -- even if the owner had no knowledge of the criminal behavior. The problem with that legal fiction is that property has no morals at all, and no ability to say "no" to drugs. Fortunately the Supreme Court didn't buy the government's argument totally. It said that the Constitution protects innocent owners if they can show they did all they reasonably could be expected to do to prevent the illegal use of the property. This in effect allowed the government to put the burden of proof on the property owner to show he/she/it was not negligent in allowing the property to be used to commit a crime. Legal Fiction #2: The relation back doctrine The second most dangerous fiction in asset forfeiture (if not a tie for most dangerous), is the "relation back" doctrine, under which the forfeiture of the property "relates back" to the time of the illegal act which gave rise to the forfeiture. The committee report to the Comprehensive Crime Control Act of 1984, PL 98-473 (the statute that created this madness) states: The interest of the United States in the property is to vest at that time, and is not necessarily extinguished simply because the defendant subsequently transfers his interest to another. David F. B. Smith, Esq., in his recently filed amicus brief in the Buena Vista case,* describes the hazards to third party interests created by this doctrine: [The American Land Title Association and the National Mortgage Bankers Association] are interested in this case because of their concern that the rights of innocent mortgage lenders and other bona fide purchasers for value be adequately protected in forfeiture proceedings. Mortgage loans . . . are an important means of providing credit in the United States. Loans worth hundreds of billions of dollars are secured by mortgages on residential and commercial real estate. Furthermore, mortgage loans constitute an integral part of the process by which most real estate in the United States is bought and sold. . . . The security provided to the lender by its mortgage lien is a vital element of the loan transaction. . . . In particular, any modification of the essential terms of home mortgages, which typically are secured only by the principal residence of the mortgagor, would have serious adverse affects on the nationwide residential mortgage markets and ultimately on future home buyers. From the perspective of mortgage lenders, therefore, the security interest represented by the mortgage lien is an important and valuable interest -- and one that should be protected in a forfeiture proceeding. In this case, however, the United States [Justice Department] takes the position that the relation-back doctrine, which provides that the interest of the United States in property subject to forfeiture relates back to the date of the first illegal activity giving rise to the forfeiture, cuts off any subsequently-acquired rights in the property, including those claimed by innocent mortgage lenders who acquired their property as bona fide purchasers in good faith for value. Consequently, the position taken by the United States would leave innocent mortgage lenders without any statutory protection in civil forfeiture proceedings in which the lien attached after the commencement of the illegal activity giving rise to forfeiture. Other innocent bona fide purchasers for value would similarly be denied statutory protection as innocent owners. Can you believe the position of the Justice Department? Since the statute of limitations on federal forfeiture is five years after commission of the offense, the government could take away the property of innocent first home buyers, for example, for something done not by the previous owner, but the owner before that, if the property changed hands a couple of times in five years. What is the Justice Department trying to do, nationalize all the land in America? Legal Fiction #3: That "Asset Forfeiture is the Single Most Effective Weapon in the War on Drugs" How often have you heard Justice Department and law enforcement types spouting those words -- verbatim? They must have all been made to memorize it at some law enforcement retreat. What makes them think forfeiture is effective? The dollar value of property seized and/or forfeited? How is that "effective" if the vast majority of the equity in property forfeited belongs to innocent people? The 10 month study conducted last year by the Pittsburgh Press (for the series of articles entitled "Presumed Guilty") revealed that 80% of the property seized for forfeiture is taken from people that are not charged with a crime. If this is targeting the real criminals (which we know it isn't), then why aren't they arresting and prosecuting them? I have never seen any evidence that asset forfeiture is helping in any way to deter drug trafficking. The true drug traffickers started using rental cars and other people's property to do their business -- as soon as these laws were enacted. Legal Fiction #4: Zero Tolerance The Leslie Ohta story proved that the "zero tolerance" policy of the Department of Justice is an outright lie. "Selective Tolerance" is more appropriate. We told you about Ohta in our last newsletter. She's the forfeiture prosecutor in Hartford Connecticut who ruthlessly forfeited houses from innocent parents and grandparents, and squiggled out of having her own property seized after her son was allegedly caught (1) selling marijuana in her house in 1989, (2) selling LSD from her car in 1991, and (3) later in 1991 possessing marijuana in her car. On July 9, Leslie's story aired on CBS Street Stories. There was Leslie Ohta, being interviewed in her jogging suit, pointing out properties she had forfeited, and grinning. She was visibly proud of herself when Peter Van Sant referred to her as the "Queen of forfeiture." She responded: "And last year, the chiefs of police in Connecticut awarded me 'Prosecutor of the Year.' We have never lost a real estate forfeiture case." They interviewed the Cwikla's, whose house was seized by Leslie Ohta because of the claims of an informant working off his own criminal charges. Van Sant asked Leslie: "Is it true that not a seed of marijuana has ever been found in the Cwikla's house?" "How could it be found," she answered, "the house was never searched." When Van Sant asked her what about her own son Mikki's cases, in which he allegedly sold LSD from her car and marijuana from her house, her attitude was "what of it." Mikki played piano for the television crew. Neither he nor Leslie showed any remorse. She saw no conflict with the fact that people far more innocent than she is were victimized forfeiture, in cases she prosecuted. Van Sant confronted her: "You know what this looks like to the public? 'The queen of forfeiture' -- the woman that has seized so much property involving drug cases -- when it comes to her own home -- boy, she gets off. Nobody seizes anything." "Mm-hmm" she replied, "But I don't think you should be taking that up with me. Why don't you take it up with the Glastonbury Police Department who never referred the cases for seizure." Van Sant asked "You understand the frustration that a lot of these people feel in this case, that there was special treatment?" "Well, you know, um, that -- that just isn't my problem," she said. Obviously, Leslie Ohta's is a sick case of noblesse oblige that stretches all the way up the ladder to the highest reaches of the so-called Department of Justice. Her case is also the prime example of the falsity of the doctrine of "zero tolerance." Zero tolerance might be what Leslie Ohta dished out on her victims, but the Justice Department's policy is clearly SELECTIVE TOLERANCE. To rub salt into Ohta's victims wounds, the Justice Department -- which refuses to reveal its reasoning in sparing Ohta from her zero tolerance policy -- invited her to Washington the week of July 14 to lecture U.S. Attorneys on how to apply the forfeiture laws, Street Stories revealed. I called the Justice Department to see if I could attend the lecture. Not only was the lecture closed to anyone but Assistant U.S. Attorneys, but the Justice Department refused to tell me when or where she would be lecturing. This just goes to illustrate the last legal fiction -- the fiction of the Department of "Justice." *** There is no justice in America today. All we have is tyranny wherever asset forfeiture rears its ugly head. ______________________ * David F.B. Smith, Esq., wrote the amicus brief on behalf of the American Land Title Association and the Mortgage Bankers Association of America, and in support of the property owner. The full name of the case is United States v. A Parcel of Land . . . known as 92 Buena Vista Avenue, Rumson, New Jersey, U.S. Supreme Court No. 91-781. Mr. Smith very graciously gave FEAR a copy of his brief on diskette. By the time you get this newsletter, the computer file will probably be posted on the computer bulletin board at ICSBBS (516)226-3830, local conference 4, under the file name of BuenaA.zip (ASCII) or BuenaW.zip (Word Perfect.) ** 92 U.S. Code Cong. & Admin. News 3383-84 (1984). *** I don't mean to imply that every employee of the Justice Department is like Leslie Ohta, engaging in a ruthless revenue grabbing operation. In my years fighting forfeiture cases I have encountered a couple of Assistant U.S. Attorneys who are decent human beings. I would give their names but they would probably be ostracized by their peers.