Over the years, the federal agents had harassed Otis's grandfather and accused him of digging on protected land. They periodically stopped by his home and demanded to see his museum. When the law changed, they waited patiently until they caught Otis and his grandfather scouring a wooded area of Carter property with metal detectors. The Carters hired a lawyer who advised them to plead guilty. Criminal intent is no longer required for many federal crimes. Lack of knowledge is no defense.
As the victim of the Racketeer Influenced and Corrupt Organizations Act (RICO), an often misguided and famously flexible federal law, I am keenly interested in the proliferation of the federal criminal code, now at twenty-seven thousand pages and counting. The Constitution names only three federal offenses: treason, piracy, and counterfeiting. Today there are over forty-five hundred federal crimes, and the number continues to grow as Congress gets tougher on crime and federal prosecutors become more creative in finding ways to apply all their new laws.
Otis could possibly attack the constitutionality of the amended law. This would take several years of litigation and would drag on long after he's paroled and back home with his family. As I explain this to him during our second meeting, he seems to lose interest. If he can't get out right now, why bother? But the case intrigues me. We decide to discuss it later.
If my grand scheme falls flat, I might take Otis's case and fight all the way to the Supreme Court. That will keep me busy for the next five years.
The Supreme Court has twice refused to consider my case. Though we couldn't prove it, there was a strong feeling that my appeals were hurried through the system because of the government's enthusiasm in putting away Barry Rafko and his confederates, me included.
I was convicted in November 2005 and sentenced two months later to ten years. At my sentencing I was "remanded," which meant I was taken into custody. A few lucky federal felons are allowed to "self-surrender," or remain free until ordered to report to a facility. They have time to prepare, but most are not given this luxury.
My lawyer thought I would get five or six years. Barry the Backhander, the star defendant, the target, the colorful villain everyone enjoyed hating, got twelve years. Surely I deserved less than half the time of that slimeball. Dionne, my beautiful and loving and fiercely supportive wife, was in the courtroom, sitting bravely next to my humiliated father. I was the only one of the eight sentenced that day, and as I stood before Judge Slater, with my lawyer to my right, I had trouble breathing. This cannot be happening, I said to myself, over and over, as I took in the blurred images around me. I don't deserve this. I can explain. I am not guilty. Slater scolded and preached and played for the press, and I felt like a battered heavyweight in the fifteenth round, sagging on the ropes, covering my face, waiting for the next shot to the face. My knees were putty. I was sweating.
When Judge Slater said "ten years," I heard a gasp behind me as Dionne collapsed in tears. As they led me away, I glanced back for the last time. I've seen this a hundred times in movies, TV shows, and in real-life court reporting - the last, frantic farewell look of the condemned. What do you think about as you're leaving the courtroom and you're not going home? The truth is that nothing is clear. There are too many random thoughts, too much fear, anger, and raw emotion to understand what is happening.
Dionne had both hands over her mouth, in shock, crying, tears everywhere. My father had his arm around her, trying to console her. That was the last thing I saw - my beautiful wife distraught and destroyed.
Now she's married to someone else.
Thanks to the federal government.
My jurors came from the District. A few appeared bright and educated, but most were not, shall I say, sophisticated. After three days of deliberations, they announced to the judge that they were making little progress. And who could blame them? By unloading a sizable chunk of the federal code, the prosecutors had adopted the timeworn strategy of throwing as much mud as possible against the wall and hoping something would stick. This overkill had turned what should have been a relatively easy case against Barry Rafko and the congressman into a legal quagmire. I had spent countless hours working on my own defense, and I couldn't understand all of the prosecution's theories. From the beginning, my lawyer had predicted a hung jury.
After four days of deliberations, Judge Slater delivered what is commonly referred to in trial circles as the "dynamite charge." This is basically a demand that the jurors get back there and reach a verdict, at all costs. You're not going home until we have a verdict! Such a charge rarely works, but I wasn't so lucky. An hour later, the exhausted and emotionally spent jurors returned with unanimous verdicts against all defendants, on all counts. It was obvious to me and many others that they did not understand most of the code sections and intricate theories used by the prosecution. One of the jurors was later quoted as saying, "We just assumed they were guilty, or else they wouldn't have been charged in the first place." I used this quote in my appeals, but it apparently went unheard.
I watched the jurors carefully throughout the trial, and they were overwhelmed from the opening statements. And why shouldn't they have been? Nine different lawyers gave their versions of what had happened. The courtroom had to be redesigned and renovated to make room for all of the defendants and all their lawyers.
The trial was a spectacle, a farce, a ridiculous way to search for the truth. But as I learned, the truth was not important. Perhaps in another era, a trial was an exercise in the presentation of facts, the search for truth, and the finding of justice. Now a trial is a contest in which one side will win and the other side will lose. Each side expects the other to bend the rules or to cheat, so neither side plays fair. The truth is lost in the melee.
Two months later I returned to the courtroom for the sentencing. My lawyer had requested that I be allowed to self-surrender, but Judge Slater was not impressed with our request. After he gave me ten years, he ordered me into remanded custody.
It is indeed remarkable that more federal judges are not shot. For weeks afterward, I conceived all manner of schemes to inflict a slow, torturous death upon Slater.
I was taken to the courtroom by the U.S. Marshals and led to a holding cell in the courthouse, then to the D.C. jail, where I was stripped, searched, given an orange jumpsuit, and placed in a crowded cell with six other inmates. There were only four cots. The first night I sat on the concrete floor, just me and my thin blanket with holes in it. The jail was a noisy zoo, overcrowded and understaffed, and sleep was impossible. I was too frightened and too stunned to close my eyes, so I sat in a corner and listened to the yells and screams and threats until dawn. I stayed there a week, eating little, sleeping little, urinating in a filthy open toilet that didn't flush and was within ten feet of my cell mates. At one time, there were ten of us in the cell. I never showered. A bowel movement required an urgent plea to visit the "shit room" down the hall.
The transporting of federal prisoners is done by the U.S. Marshals, and it is a nightmare. Prisoners of all security levels are lumped together, with no regard for our crimes or the risks we might pose. Therefore, we were all treated like savage murderers. With every movement my hands were cuffed, my ankles chained, and I was attached to the inmate in front of me and the one behind. The mood is nasty. The marshals have one job - to move the inmates safely with no escapes. The inmates, many of them rookies like me, are frightened, frustrated, and bewildered.
Fourteen of us left D.C. on a bus, an unmarked rig that had hauled schoolchildren decades earlier, and headed south. The handcuffs and chains were not removed. A marshal with a shotgun sat in the front seat. After four hours, we stopped at a county jail in North Carolina. We were given a wet sandwich and allowed to urinate behind the bus, still chained and bound. The handcuffs and leg irons were never removed. After two hours of waiting, we left with three additional prisoners and headed west. For the next six days, we stopped at county jails in North Carolina, Tennessee, and Alabama, picking up prisoners, occasionally dropping one off, sleeping in a different cell each night.