Note: BlackCommentator.com Editorial Board member Chuck Turner is writing this column from the U.S. Federal Prison in Hazelton, West Virginia where he is serving a three year term for a bribery conviction.  BC is in contact with Mr. Turner by email and telephone.  Click here to send an email message that BC can pass on to Chuck.

A) Introduction:

I am a political prisoner. I am in prison not because I committed a crime but because Michael Sullivan, a former Massachusetts U.S. Attorney, decided to target me for entrapment because of my political views and actions as an elected official. I have admitted that a major share of the responsibility for being convicted is mine. If I had followed Terri's instructions and given whatever Wilburn handed me on the afternoon of August 3, 2007 to her, it would have been difficult for Sullivan to make it look like I was extorting money from Wilburn.  If  Terri had been able to record it as a contribution, it is very unlikely that the FBI agents would have even visited me on the morning of the Senator's arrest. As I said in Chapter 3, in life and especially in politics, its the details that count.

Also, I acknowledge what many believe regarding my trial. If I had not testified, it is very possible that I would not have been found guilty of extortion. While I am not as certain of the jury's verdict regarding the three counts of lying to FBI agents, I will admit that it's possible that I would have been found not guilty on all four counts. Nevertheless, I still say that I am a political prisoner. US Attorney Michael Sullivan would not have targeted me if I had not been known for challenging the political system for its injustice toward blacks, people of color, and people in general.

Sullivan needed a high profile public corruption case to give him some good publicity after all his bad press regarding his prosecutorial negligence on the Big Dig. So he targeted the Senator who not only had a visible history as a legal and political activist but also had alienated police departments throughout the state when she used her political skills to get the Senate to support a "driving while black law". Under this law the police throughout the state had to document their ticketing of drivers.

As was admitted at the trial, the Senator was the key target but US Attorney Sullivan and the FBI decided to see if they could entrap me. By adding me to the mix, there was probably a hope on Sullivan's part that he would be able to get me to testify against the Senator. Even if I wouldn't, taking out two black politicians known as trouble makers was better for his image than just getting one.

While the FBI said that Wilburn gave them evidence of previous illegal contributions accepted from him by the Senator, I have doubts. However, in my case, I know that they had no basis for attempting to entrap me. The law regarding entrapment requires that there be at least circumstantial evidence of prior criminal behavior that gives the government an excuse to try to entice the elected official into "committing a crime". In my case, there was no evidence of prior criminal activity, financial or otherwise, with the exception of civil rights arrests.

Wilburn gave the grand jury the name of a person he said had told him that I had received money to write a reference letter for a person with a prison record for a job at CVS. If Barry had been allowed by Judge Woodlock to bring the entrapment issue into the trial, the person identified by Wilburn would have given us an affidavit, saying that he had been in New York for ten years and did not know what Wilburn was talking about. So Sullivan had no legal reason to attempt to entrap me but what did that matter to him. He needed a black political activist to entrap and I became the target.

All of the above is strong circumstantial evidence that I was targeted by Sullivan because of my political beliefs and actions. However, the most compelling evidence came after my conviction in the Government Sentencing Memorandum written by McNeil and in the determination by Judge Woodlock that I had perjured myself and should be sentenced to three years in jail despite over 700 letters from supporters requesting probation; despite the fact that it was my first offense; despite the fact the alleged amount of the extortion was $1000; and despite the fact that the case grew out of the government's decision to attempt to entrap me with no legal justification.

Since the sentencing memorandum presented by Asst US Attorney McNeil so eloquently states his political perspective, I am presenting it in its entirety as the narrative. I will intersperse my commentary throughout the narrative as my analysis. Also, in the section (D) The Sentencing Hearting, I will share an exchange between my lawyer, John Pavlos, and Judge Woodlock. I believe an assessment of this exchange supports my theory that Judge Woodlock's thinking was driven by his anger toward me because of my fight against the frame up, rather than a rational assessment of my lawyer's argument.

Not once, did Judge Woodlock even comment on my lawyer's argument that my view of principled politics compelled me to testify. Instead, he focused on unsubstantiated accusations that I was lying. It is impossible to determine his motivation for avoiding John's argument. However, I believe that he too was enraged at my attack on the government’s attempt to frame me and wanted to justify giving me a sentence that would be both punish me and a deter others who in the future might choose to fight back.

B) Narrative: 

United States District Court

District of Massachusetts

United States of America                                                                             

v.                        

Criminal No. 08-10345-DPW

Charles "Chuck" Turner          

Government's Sentencing Memorandum

"You achieve progress by standing up for the truth..."

Chuck Turner at a rally outside Boston City Hall, November 24, 2008

Note 1: Boston Globe, November 25, 2008

"I have a strong moral sense but it is not formed by American laws. I am willing to pay the consequences of the choices I make."

Chuck Turner in an interview with the Boston Herald July 26, 2002

Narrative:

The United States of America, by and through Assistant United States Attorneys John T. McNeil and James P. Dowden respectfully summits this sentencing memorandum to assist the Court in sentencing Defendant Turner. The government currently intends to recommend a sentence consistent with the applicable guideline range without either an upward or downward departure. Including the enhancement for testifying falsely at trial, the guideline range in  this case is 33-41 months incarceration to be followed by not more than 36 months of supervised release. 2 

Note 2: Without legal citations: A two level enhancement is applicable to defendants who engage in perjury at trial. The enhancement is applicable even if the perjury is unsuccessful; the perjury is no more than "a self-serving cock and bull story"; or the perjury is a "hopelessly transparent, naive and misguided effort to mislead...which stood no chance of 0success." 

C) Analysis:

Barry's sentencing memorandum argues my perspective well when it says, "In this case, Mr. Turner never denies meeting with Wilburn, or taking some amount of money. Mr. Turner simply stated that he had no memory of the meeting. That explanation, in and of itself, does not amount to perjury, and is not inconsistent with a jury verdict. The jury could have merely determined that his explanation was insufficient to overcome the evidence presented by the Government. Indeed, had the Defendant intended to commit perjury, or obstruct justice, one would think he would have come up with a better explanation than what was testified at trial."

The fact that I was given three years probation is another indication that I was targeted because of my politics. Since it is unlikely that I am going to seek elective office after my release at age 73, probation makes no sense. My alleged crime is public corruption. If I am not an elected official, why should I be on probation. The reason is that it gives the Justice Department an opportunity to monitor my action, prevent me from leaving the state if they so choose, and act as a political watchdog snapping at my heels.

Narrative:

Neither this defendant nor his criminal conduct warrant a downward departure or deviation from the guideline range. Likewise, neither an upward departure nor an upward deviation is necessary to achieve the purposes outlined in 18 U.S.C. section 3553(a).

As the Government will argue at the hearing scheduled for January 25, 2011, the sentence to be imposed in this case must speak as much to the defendant's perjury at trial as the conduct charged in the indictment. Turner's false testimony was the product of a profound contempt for the Court as an institution. Turner's sentence must not only be an adequate deterrent to elected officials who engage in extortion under color of official right, it must also reflect the gravity of perjury in a federal criminal case. The sentence must condemn Turner's effort to undermine the judicial process.

Analysis:

The obvious question is why would I testify and lie. As I noted in Chapter 7, many people including Judge Woodlock urged me to not testify. So what reason was there for me to testify except my belief in the principle that elected officials must be accountable despite the potential risks and dangers. Yet, McNeil puts himself in the position of a mind reader and asserts that because he does not believe my testimony the range on my sentence should be enhanced from 27-33 month to 33-41 months.

The other reality is that while the jury had convicted me, McNeil knew that I was not guilty. Since, I assume, he was part of the process of planning the entrapment, he knew that there was no telephone call from me to Wilburn on August 3rd. He knew that there was no $1000. He knew that when i accepted the money, whatever the amount, there was no criminal intent on my part. So the reality is that the assertion of perjury was calculated to enhance in the mind of the public my "corruption" to justify the case and putting an elected official with no prior history of criminal behavior in jail for 33-41 months.

Narrative:

The government anticipates that the defendant will move for a downward departure or deviation from the applicable guideline range. While the government will address any such motion orally at the sentencing hearing, there are two features of this case which are not adequately addressed in the Pre-sentence Report. Each should play a significant role in the Court's rejection of Turner's request for a sentence below the guideline range. Each reflect that Turner is particularly undeserving of a sentence below that range.  

Turner's conduct has been the antithesis of acceptance of responsibility. Instead his conduct has affirmatively promoted disrespect for the law, has demeaned the seriousness of his offense, has debased his public office and has eroded the public's trust in law enforcement and the criminal justice system. Turner's calculated and persistent attacks on local and federal law enforcement agencies, designed to deflect attention from his own corrupt conduct have been corrosive to respect for important public institutions and the rule of law. From the day he was confronted with his crime, Turner has engaged in an incendiary campaign of misinformation, obfuscation and blame. 3

Note 3: See Boston Globe, November 22, 2008 (Turner. "The FBI is, from my perspective an evil institution.:);Boston Globe, December 11, 2008 (I've seen some grainy photographs. I don't know if that's me. They doctor photographs..."); Boston Herald, December 13, 2008 (Turner characterizing his prosecution as a "witch hunt"); Boston Herald, September 24, 2009 (Turner disparaging charges as "a trumped up case"); Boston Herald, October 7, 2010 (Turner claiming that his attorney's would "expose the corruption that is at the foundation of (the government's) charges against me...").

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Analysis:

Now we are at the heart of the issue. It was fine for Sullivan and McNeil to attempt to frame me for a crime conceived and executed by them, However, I did not cooperate with their plan. I used my first amendment rights to argue my innocence in the court of public opinion. People began to hear and understand what i was saying about the government's plot. Now McNeil sees it as pay back time. What he doesn't realize is that people can see through his rhetoric and understand that what he is actually saying is that I don't have a right to defend myself if Sullivan and he say I'm guilty.  Their arrogance and denial of my first amendment rights seems  amazing even in this age of prosecutorial terrorism.

Narrative:

His campaign has been divisive in its intent and in its effect. 4

Note 4: Shortly after the verdict, Turner claimed, "I'm not the first innocent person who's going to be sent to jail". Boston Globe, October 30, 2010. The following day, during a rally at which Turner described the U.S. Constitution as an "illegal document" he railed, "Let's understand that this is the attempt of the government to destabilize a community of color that's on the move." See Dorchester Reporter, October 20,2010. In an attempt to retain his City Council seat, he argued that, "The purpose of the government was to take us down because they saw the power of communities of color rising up..." Boston Globe, December 2, 2010.

Analysis:

Obviously, he can't stand the truth being told and sees that it is having an effect. Since the government's campaign to clear up the corruption in the issuance of liquor licenses in Boston resulted in two black officials being indicted, no one including McNeil should be surprised that people in the black community see the indictments and subsequent convictions of two of their more vocal elected officials as an attack on them. The government allowing Licensing Commissioner Pokaski to resign without prosecution as I pointed out in Chapter 3 can only be viewed as racism, disparate treatment based on race. Even Sullivan's paid agent, Wilburn, stated his concern in the Boston Globe a few months after my arrest that the Senator and I were the only ones being indicted. Since he was operating the sting, he had to know others who should have been indicted. Yet, McNeil has the nerve to call me divisive, when I was giving voice to what many in the community could see for themselves. At least he acknowledged that people were listening and looking.

Narrative:

It has falsely promoted distrust not only of federal and local law enforcement, but of the criminal process, this Court and the jury which found him guilty. As the trial revealed, Turner's vitriolic campaign was ultimately an act of profound narcissism, in which he sacrificed the best interests of his community in a fraudulent attempt to claim the mantle of an honest public servant.

Analysis:

What you can see he is saying is that I don't have the right to express my opinion. His perspective seems to be that I should accept being framed for a crime I did not commit, shut up, and go to jail quietly like everybody else. Unfortunately, this mentality, I believe, is typical of prosecutors. They believe that they have the right to sit in judgment and that we the citizens have to give up our right to speak what we believe is the truth. They sentenced me to spend three years in jail because they were tired of me speaking the truth in the court of public opinion and figured that putting me in jail for three years could silence me. SURPRISE!

Narrative:

While downward departures or deviations are occasionally warranted for first-time federal felons, at a minimum such deviations should be reserved for those who acknowledge the seriousness of their crime, who admit their guilt and truly accept the wrongfulness of their conduct, and who put their public office before their self-interest. Turner has done none of this. In fact, he has done just the opposite. While his public campaign has pandered to a few faithful supporters, he could hardly have done more to promote the public's cynicism about elected officials and to erode trust in the rule of law. His post-indictment conduct has amplified the crimes for which he was charged. He has sought to undermine the integrity of the judicial process. As a result, Turner is uniquely  undeserving of a downward departure or deviation.

Analysis:

As you can see McNeil continues his tirade regarding my refusal to quietly submit to their frame up. I once had asked my lawyers why McNeil was taking actions that I thought were exposing his hypocrisy. The response was that prosecutors are so used to controlling the situation and being able to intimidate the defendants that they can't emotionally handle situations that don't fit that pattern. I think that statement describes McNeil's state of mind in writing this memorandum. Again, keep in mind that I am the one prosecuted and convicted for a crime McNeil knew I didn't commit.

Narrative:

Turner will likely rely on the letters submitted by friends and constituents praising his efforts as a public servant and calling for probationary sentence. Unlike the letters submitted in the Wilkerson case, this collection of letters, while undoubtedly heartfelt by the writers are not extraordinary nor should they serve as the basis of a downward departure or deviation.

Analysis:

I think this comment refers to the fact that in gathering letters I did not go to prominent elected and former elected  officials. I put out a call to the people in the communities I have worked with for over forty years and asked for their support. However, the irony of his statement is that even though he saw the letters submitted in the Senator's case as "extraordinary", her sentencing had to be delayed because he used the day she was to be sentenced to continue testimony regarding her "criminal behavior".

When a person pleads guilty, the expectation is that the prosecutor will honor whatever agreement has been made regarding the amount of time to recommend to the judge. However, McNeil seemed continually to try to find ways to increase her sentence beyond the agreed upon length. Yet, here he is talking out of the other side of his mouth and saying her letters were "extraordinary". My question for Asst US Attorney McNeil is, "If the Senator's letters were so extraordinary, why were you trying to have her serve more time than that originally recommended by you and her lawyer.

Narrative:

These letters (comment: over 700) are consistent with those any public official is likely to receive after serving a community for a number of years, and are within the heartland of the applicable guideline. (comment: I have left out the citations except for the case that I think is relevant to my lawyers request for a downward departure.) Case a)...rejecting a substantial downward departure based on "good works as a city councilor" because it was defendant's "job to respond to the needs of his constituents and to make positive contributions to his community. He was compensated for these efforts, and were essential to (his) reelection and prospects for other office"; Case b) United States v. Wright, 363 F. 3d 23 "the political duties ordinarily performed by public servants-the sort of duties that are generally needed to stay in office-cannot quality. It is, rather only when an individual goes well beyond the call of duty and sacrifices for the community that a downward departure may be appropriate."; Case c)... public service and employment-related contributions not ordinarily relevant.  5

Analysis:

McNeil's point is that the 700 letters weren't relevant because they responded to my doing my duty as a councilor which in the cases cited had been rejected as a basis for downward departure from the sentencing guidelines. However, he cited United States v Wright which says in part "it is only when an individual goes well beyond the call of duty and sacrifices for the community that a downward departure may be appropriate".

What McNeil doesn't acknowledge is that about half the letters focused on my district office and monthly roundtable meetings, activities that clearly went "beyond the call of duty" and represented "sacrifices for the community". I was the only Councilor to have an office fully staffed during the week. I was the only Councilor to have monthly meetings from the time of my election till the year of my arrest. The cost of maintaining the office and the monthly meetings to Terri and I was $120,000 at the time of my arrest and $170,000 at the time of my conviction. Thus in citing United States v. Wright, McNeil contradicts himself by not urging a downward departure which was clearly justified. His political perspective must have clouded his judgment. 

Narrative:

Note 5: Moreover, as Turner sought to introduce at trial through a recording between Ms. Wilkerson and Mr. Wilburn on June 5, 2007 (the first payment meeting), there is a substantial doubt about Turner's effectiveness as a public servant. Wilkerson and Wilburn seemed to capture the larger public sentiment about Turner.

Wilkerson: Cause I think Chuck is crazy.

Wilburn: No he is crazy. Chuck Turner. He is crazy. I mean he's living in the nineteen sixties. He thinks Chairman Mao is still alive. Communist Manifesto. You know? (Laughs)

Wilkerson: He drives me batty. He really does.

Wilburn: You know Chuck. The lit...? The guy with the beard?

Serret: Yeah.

Wilkerson: He would be good, if you needed somebody who, you needed to go pick up a ruckus and just protest for you, I would hire him. You want to get something done? He's not the p..., that's not his, he doesn't know...

Wilburn: Yeah.

Wilkerson: That's not what he does.

Analysis:

The irony that McNeil includes this is that in September 2008, over a year after the above conversation, the Senator lost the preliminary election to a relative newcomer while in 2009 despite Sullivan's indictment against me, I was reelected to my City Council seat with over 60% of the votes. The other irony is that this conversation started with Wilburn at the direction of the FBI asking the Senator if she would agree to include me in the work to get him a license. She said no and so this conversation as I pointed out in Chapter 3 supports my contention that there was no conspiracy between the Senator and I despite the fact that McNeil did not drop the conspiracy charge until the eve of my trial.

Narrative:

More importantly, Turner's most recent legal maneuvering belies the core assertion in the letters submitted--that he is a selfless public servant, motivated by the public good. On January 10, 2011, Turner filed a motion for a preliminary injunction in Charles H. Turner, et al v. City of Boston.  This motion was designed in part to prevent the the City of Boston from holding a special election to fill the empty City Council seat for District 7. 6

Note 6: (The preliminary election is currently scheduled for February 15, 2011 and the final election for March 15, 2011.)

That seat has been vacant - and the district unrepresented - since the City Council voted 11-1 to expel Turner on December 1, 2010. The same day Turner filed the preliminary injunction motion, he filed a motion to continue his sentencing hearing in this case from January 25, 2011 until mid-March 2011.

Because Massachusetts law requires an elected official to vacate his office if sentenced to a term of imprisonment, the combined effect of these simultaneous motions was to prevent Turner's civil suit from becoming moot, while also depriving the electorate in District 7 of representation on the City Council for an additional period of time. In other words, a delay in his sentencing date would preserve his civil claims while also denying District 7 representation and throwing into question any special election held before he was sentenced.

Analysis:

Once I was convicted, I made three announcements immediately in order to give clarity to my constituents and supporters. The first was that I would not resign, on principle. The fact that I was convicted did not change the reality that I had been framed. To me, resigning would be to accept the conclusion of the jury that I was guilty of the crime. Since I knew that I wasn't guilty, the principled position was to continue to serve.

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My constituents, the majority of whom still supported me, urged me to stay. There was only one person from the community that I remember publicly calling for my resignation - Rev. Eugene Rivers, a minister, who at a City Council hearing had referenced his close relationship with Karl Rove, Bush's political strategist, who worked with Attorney General Gonzalez to fire the eight US Attorneys who wouldn't target those on the Bush enemy list. It was interesting that there was only one elected official who publicly called for my ouster by the Council, Mayor Menino, who had a variety of reasons for wanting me off the Council. 

My second announcement was that if removed by the Council, I would support as my replacement Tito Jackson, the son of a Kwaku Zulu Jackson, a close ally, who before his death in 2003 played a key role in the community as a skilled, veteran organizer and champion of the rights of community construction workers. In November 2009, Tito had come in 5th in the race for one of the four at large City Council seats. I had said to him that I didn't plan to run for the District 7 seat in 2013 and if he was interested in running for the seat at that time, I would support him. While not an activist in the mode of his father, I felt his ties to the younger generation, his organizing skills, his focus on economic development, and his experience in state government provided a strong foundation for him to represent District 7. 

My third announcement was that I would only appeal the jury's verdict if the Court would honor my request to provide a lawyer. I felt that it didn't make sense to spend scarce family resources or money that could be raised for other more important uses on another court fight.  I had not expected to be convicted in the first trial and yet I was. Given that experience, I thought that it would be foolish to put time, energy, and resources into fighting to have another court level affirm my innocence or create the opportunity for a new trial unless the government would pay for the lawyer. I knew I didn't commit the crime that Sullivan, Wilburn, and the FBI had manufactured. If necessary, I was willing to let future courts of public opinion decide the truth.

My other action was to contact City Council President Michael Ross to ask if he could delay any action by the Council until after my sentencing on January 25th. The state law was clear that I could continue to serve despite the conviction as long as I was not sentenced to jail.  I said that I thought that it would be appropriate for the Council to wait until Judge Woodlock made that decision before deciding whether they wanted to take any action. His position was that there needed to be a quicker resolution.

To determine next steps for the Council, he consulted with Corporation Counsel Sinnott, the Mayor's lawyer. Sinnott told him that the Council had the right to remove me which led to Ross scheduling a Council meeting for December 1 to vote on his motion that I be removed. On the 1st, in front of a Council chamber filled with my supporters, despite an eloquent argument by 26 year black veteran City Councilor Charles Yancey that the Council had no power to remove me, the Council voted 11-1 in favor of the motion.

Approximately, a week after my removal, I was contacted by Chester Darling, a well known retired Boston lawyer, who said, echoing Councilor Yancey, that he believed that the Council had no right to remove me. He also said that despite his reputation as a conservative lawyer, he was a champion of human and civil rights. Since he felt my rights had been violated, he said he was willing to come out of retirement and volunteer to help restore them. My response was that I would be delighted to have his help.

With the assistance of Paul Winoski, former chief of staff for Jimmy Kelly, a deceased former Boston City Councilor, Attorney Darling worked feverishly over the next few weeks and developed a brief arguing against the Council's actions. This brief was submitted to the Chief Justice of the Massachusetts Federal Court, Mark Wolf. Based on our excellent chance of winning the case, we thought it was appropriate to ask for an injunction to postpone the election until Chief Justice Wolf made his decision in March or Judge Woodlock sentenced me to jail on January 25th. I also sent word to Tito Jackson to explain why I was taking this action.

The request by Barry Wilson's office for a continuance of the sentencing hearing had nothing to do with Attorney Darling's request for an injunction. Given the fact that the sentencing hearing would happen before the Chief Justice's ruling, Attorney Darling asked me whether I wanted to go forward knowing that my filing the challenge might give Judge Woodlock additional reason to sentence me to jail. My response was yes; let's go forward.  Even if I could not be seated because of incarceration, I thought that it was important that the public know that the Mayor's lawyer mislead the City Council by saying there was a legal basis for my removal. It is hard to believe that he didn't know that the Massachusetts Supreme Court had ruled in 1973 that the case he used as a justification for my removal could not be used as a legal basis for removal of elected officials.

The filing for a postponement of the sentencing hearing by Barry's office was actually caused by an unanticipated action by McNeil. Barry had scheduled his vacation to start in December with a return in late February/early March. John Pavlos, who had worked with him on my case since my arrest and had assisted in the trial, had agreed to represent me at the sentencing hearing. However, when Barry was informed that McNeil was going to try to increase my potential time in prison by alleging that I committed perjury, he asked his office to ask for a postponement until he returned so that he and John could work together in combating McNeil's ploy. Unfortunately, from the standpoint of appearances, the motions were filed on the same day without either office realizing the other was filing a motion on that particular day.

Narrative:

If Turner is what he claims--a selfless public servant deserving of a substantial downward departure or deviation--he would not have sought to deprive his former constituents of representation on the City Council while he delayed and otherwise maneuvered his criminal sentencing. If Turner were the public servant he claims to be, at a minimum he would have welcomed an expedited process for representation for citizens in dire need of responsive government.

Respectfully Submitted, Carmen M. Ortiz, United States Attorney By:   John T. McNeil, James Dowden, Assistant US Attorneys

Analysis: This is an amazingly hypocritical statement when you realize that McNeil understood that I was not guilty of the crime for which he had prosecuted me. His boss, former US Attorney Sullivan, had worked to deprive my constituents of my representation by having his paid pawn Wilburn attempt to paint a picture of my guilt. Now after their goal--my removal from office--had been achieved, he questions my loyalty to my constituents for fighting against my removal. As I said earlier, they have no shame.

D) Sentencing Hearing:

Narrative:

Judge Woodlock:

Now, let me turn to the question of perjury. The Government has identified from the defendant's testimony a number of incidents that that they say are perjurious, and frankly, I am of the view that they are. But I want to understand what arguments there are with respect to the question of perjury. I do though, call it obstruction of justice", because that is the character of the Guideline, but they seem to me to have been part of a strategy, not very successful, to fundamentally interfere with the fair trial and resolution of the case through the testimony of the defendant.

But I will hear you on that, Mr. Pavlos, if there is something more you want to say. I have of course read your Memorandum on this issue.

Mr. Pavlos:

Judge, what's extremely disturbing to us about that was certainly your Honor was in a position to hear the trial, hear the facts--

Judge Woodlock:

Right.

Mr. Pavlos:

--come in through a number of witnesses that the Government put on the stand. There are kind of two components to this argument, and one is quite basic and I think the case laws certainly supports that you have the discretion, the standard's clear from the case law, by a preponderance of the evidence. It makes allowances for--

Judge Woodlock:

I think I should be clear. I find it beyond a reasonable doubt. I do not even have to rely on preponderance of the evidence. The defendant perjured himself at trial as specified. He stated things that he knew were untrue, and he did it with a view to corrupt the trial process. That is obstruction.

Mr. Pavlos:

Judge, then, kind of switching from an attempt to persuade the Court that the testimony denial is based on a lack of memory, "do not remember this individual", I would like to, for the record, lay out the argument. Its clear that the Court has made up its mind on this.

Judge Woodlock:

I have. I am ready to hear argument about it, but you are entitled to know where I stand on it. The question of he could not remember was pretextual. Of course he remembered. It is as clear as it could have been. The suggestion that this passed his mind, someone who says he has never received that kind of money before, receiving that kind of money is very difficult to accept. So you know where my fact finding is on this.

Let me add one further point. The Guidelines add only two points, Criminal history points. There is an alternative way that this perjury could be dealt with. I suspect it will be dealt with here by the sentencing. But a subsequent case could be brought and if a subsequent case was brought, we would not be talking about two points; we would be talking about a person who had previously been convicted of the crimes here with a higher Criminal History Category. And my rough calculation of what perjury would be, if it were separately tried and he was convicted of it, is not less than a doubling of the Guideline range. So, it is important, I think to understand exactly what the playing field is on this.

Mr. Pavlos:

Regardless, your Honor, of the math, it is the principle. It is the testimony from Chuck Turner and your evaluation of it that concerns us, obviously. It is not the metrics of what that does to enhance his sentence or any future attempts, vindictive or otherwise, to further prosecute Mr. Turner for not just exercising his right, but, as he expressed to the media and to your Honor, and to anyone else who would listen, that he believed public officials should take the stand and testify, regardless of what the implications were. And, your Honor, in fact, cautioned him at sidebar,; you did a colloquy with him.

Judge Woodlock:

Right.

Mr. Pavlos:

You're entitled to your opinion, but ours is that up until that point the Government failed miserably to prove their case, and that taking the stand and testifying when asked about the incident, when asked about the videotape, that he saw what he saw. He could see the videotape and observe it, like anyone else could, but he did not remember this guy, did not remember this meeting is something he felt strongly about. Not that it was some tactical decision that somehow facilitated a defense, but that it was the right thing to do, and he was adamant about that.

It was no secret that that was against the advice of counsel, because tactically it was not desirable, against the advise of supporters and, I would suggest, your warning or caution about the possible implications of that. And he went forward anyhow, three years after this event.

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And so we believe that there were facts that came out at that trial that allow you to make certain inferences about the testimony not simply say the jury found-and the case law supports this, you are able to evaluate independently--that the jury found that it was inconsistent. But more than that, there were no specific questions put to the jury. Do you believe his denial, lack of memory of the events. These were certainly not specific findings from a jury.

So, we would ask you to look at the record, and the record involved a number of issues that you could use to make reasonable inferences that it was consistent with what he had said all along. The video itself shows 45 minutes of meeting with other constituents before this individual, before Wilburn--public record--actually sat down at the table with him five feet away and had a very brief conversation and made this exchange.

You saw Wilburn from the stand, who said, This is how it happened. And he took it upon himself, maybe with the advice of the counsel you appointed, I don't know, but he had a fistful of white materials, papers, that he had cut that he said were the same number and size as the money that was handed, and we saw, almost comedically, that, when he did it, he said, This is how I did it, it was sticking out of both sides of his hand.

We believe that it was reasonable to assume that that individual, after cross examination, his history of clipping, if you will, that he hadn't handed $1,000, that there was no basis of fact that he handed Councilor Turner $1,000, that what was secreted, if you will, was a much smaller number of bills. And Mr. Turner, honestly and forthright, said on it, I see it, yeah, I see it, in response to the cross examination from AUSA McNeil, that, I see it, it looks like money, I just don't remember.

(Note: Mr. Pavlos goes on to point out several other inconsistencies in prosecution's arguments and concludes:)

Beyond that, he testified, and this is three years later, he didn't come up with some assisting testimony, if you will, and you've been on the Bench for that, I will gather, when--and the case law is also replete with those fact patterns--where individuals in drug cases or even in white-collar cases come up with an alternative reality: Oh, that was fifty bucks, I didn't report it, I forgot about it. He didn't offer that. That would have been testimony that would have assisted and had a purpose. But he didn't do that. It factually didn't assist.

So, what purpose was it that a man that didn't have to testify, was principled--that was the only reason he testified because it wouldn't assist--principled would then lie and say nothing in his lie? It doesn't make sense. It's not what happened, and its not consistent, and we would ask you on this basis to reject it.

This individual took the stand and testified his memory was limited. The Governments position is it shouldn't have been because it was this event that was of, you know, major proportions. It wasn't.

Judge Woodlock:

Well, I have to say a couple of things. Part of this is fact-finding, a large part of it, and fact-finding frequently deals with the resolution of apparent inconsistencies.

The reference to where the money was withdrawn from calls to mind a story of a case that once was tried in which a defendant thought that any inconsistency was helpful to him. If was a theft in a grocery store from a young woman who was at the cash register, and she testified that it was as a result of the defendant reaching across with his right hand and getting the money. And the defendant poked his lawyer next to him and said, "It was my left hand." That kind of inconsistency is not very helpful.

The core of it is that I am satisfied that Mr. Turner ineffectively sought to pollute the trial with his testimony.

Analysis:

I have presented at length the exchange between Mr. Pavlos and Judge Woodlock that took place at the beginning of the hearing. I thought it was important for you to observe for yourself Judge Woodlock's thinking regarding my testimony at the trial. From my perspective, there are three critically important elements to be noted in his arguments.:

1) His adamant conviction that I was consciously lying (committing perjury) in order to "pollute the trial";

2) His lack of substantive arguments to support his conviction;

3) His absolute avoidance of any discussion of my lawyer's argument that I testified because of a principled belief in the necessity that public officials be accountable for their actions regardless of the risks entailed.

Judge Woodlock's argument is a classic example of an ad hominem argument. Since "ad hominem" is not a widely used term, let me share with you the two definitions from Webster's Third International Dictionary:

Ad Hominem: 1) Directed or appealing to one's personal feelings or prejudices rather than his intellect and reason; 2) Marked by an attack on an opponent's character rather than by answers to his contentions.

In other words, Judge Woodlock's argument had nothing to do with the issue of principle being raised by John. He chose instead to attack my character by incessantly accusing me of lying without giving any substantial justification for his accusation. I believe there were three reasons for this approach:

1) His attack on my character was designed to squelch the "buzz" in the court of public opinion that I had been framed and actually was the victim of a government plot.

2) His character attack was design also to justify as long a prison sentence as possible to implant the idea in the court of public opinion that my level of corruption required a relatively long sentence.

3) By punishing me severely, they (McNeil and Woodlock) were sending a message to those they may attack in the future that if you fight us, we'll do to you what we did to Turner.

E) Action Steps:

As I said in the preview, the purpose of writing "The Anatomy of a Frame Up" has been to fulfill a commitment made to my constituents and supporters that I would use my experience with the Justice Department to create a study of the techniques used by US Attorneys and their special police force, the FBI, to frame a person who they want to incarcerate and/or remove from the position which they hold.

My purpose is not to mount a campaign to "Free Chuck". Attorney Charles Rankin, my appeal lawyer, suggests that my appeal will be heard in the spring/summer of 2012. If the appeal is not successful, the Bureau of Prisons has informed me in writing that I could be sent to home confinement on July 17, 2013. If this does not take place, I will be released on November 2, 2013, pending the maintenance of my good time. From my perspective, it would be a waste of people's valuable time and energy to focus on my incarceration.

The reality, as I have stated earlier, is that I view my case as just the tip of the iceberg. Over 2.3 million people in this country are incarcerated. Over 1 million of the incarcerated  are black. The prison/jail population has quintupled. grown by almost 500% during the last 35 years, growing from less than 500,000 of all races in 1975 to an estimated 2.3 million today. While there have been some modifications of the incarceration policies recently, the reality is that the prosecutorial establishment that has built an empire through these laws is still in place. To strengthen your understanding of prosecutorial terrorism from a legal perspective, as I mentioned earlier, please read Attorney Michelle Alexander's The New Jim Crow: Mass Incarceration in the Age of Colorblindness and Three Felonies A Day: How the Feds Target the Innocent by Attorney Harvey Silverglade.

The problem is clear. The need for justice cries out. The question is what are we going to do? We must move beyond the definition of the problem. We have to identify and take appropriate action to end the problem. It is clear that we need to build a movement. While it would be wonderful to have a network of national organizations with units in key cities and towns in every state, we are a long way from that formation. We are at the stage where those of us who are outraged at the injustices we see being committed through the criminal justice system must speak out and demand justice.

Right now, prosecutors are above the law. We all know the saying: Power corrupts and absolute power corrupts absolutely. As I said throughout the Anatomy of a Frame Up, I believe that if prosecutors could be criminally charged and civilly sued for prosecutorial misconduct, they would begin to discipline themselves. Right now there is no risk for misconduct and potentially great reward, in terms of reputation and career advancement. Even Presidents can be impeached. We have to make prosecutors legally accountable for their actions. We need immediate legislation enabling criminal charges as well as civil suits to be brought against prosecutors for misconduct. 

Let us begin building this movement by focusing our energies and actions on the Chief Prosecutor of this country, Attorney General Holder, our President's appointee. I urge each of you to write a letter to Attorney General Holder to accomplish two objectives:

1) Bring to his attention a person you know or know of who you believe has been unjustly incarcerated on the county, state, or national level.( If you don't know such a person, ask you friends, neighbors, coworkers, etc. if they could identify someone who is unjustly incarcerated.) Give him as many details of the injustice as possible and ask him to inform you what he believes can be done to resolve the injustice. 

2) Tell him that you are concerned that prosecutors can not be charged or sued for misconduct. Suggest that you believe that is one of the reasons why our jail and prison population has grown by almost 500% during the last 35 years, from an estimated 500.000  of all races in 1975 to 2.3 million today, with over million blacks among that number. Point out that we have a higher percentage of our overall population as well as people of color incarcerated than any other country on the face of the earth.

Ask him as the nation's chief prosecutor to lead the effort with the assistance of the President to establish legislation that will assure that prosecutors legally accountable for their actions. Raise the question, why prosecutors should be above the law when even Presidents can be impeached. Close by asking for a response to your request for legislative action. (Even if you are not able to identify a person who has been unjustly incarcerated, write the letter and focus on #2.)

As Frederick Douglas told us over 150 years ago, if we need change, we must make the demand. I would also ask you to take similar action with the highest elected official of your state, the Governor. Make similar requests of h/er and ask that the effort be made to involve the state's Attorney General in the process. To help me keep track of the volume of letters and the issues of injustice being raised, please send a copy to Chuck Turner, P.O. Box 190251, Roxbury, Ma. 02119.

Let me close with the thought that every civilized society must have an effective criminal justice system to discourage those who would abuse the rights of their fellow citizens and prosecute those who choose the path of abuse. However, if the principle of justice is not the guiding spirit of the system, the system itself becomes the instrument through which justice is denied.

We owe it to future generations to make justice the fundamental guiding principle of our criminal justice system. Let us begin by demanding that we require prosecutors to be legally accountable to the principal of justice rather than to their own political and career goals and aspirations. Let us demand legislation that can make such accountability part of the legal framework of this country by enabling prosecutors to be criminally charged and civilly sued. 

A Luta Continua--The Struggle For Justice Continues,

chuck

Next week: I will provide a postscript report on my outlook after five months at USP Hazelton as well as my writing plans for the fall.

Click here to read any part in this BC series.

BlackCommentator.com Editorial Board  Member Chuck Turner - Served as a member of the Boston City Council for ten years and eleven months. He was a member and founder of the Fund the Dream campaign and was the Chair of the Council’s Human Rights Committee, and Vice Chair of the Hunger and Homelessness Committee. Click here to contact Mr. Turner. Your email messages will be passed on to Mr. Turner by BC. You may also visit SupportChuckTurner.com.

You may also write to Mr. Turner.  The address is:

Charles Turner #80641038
Hazelwood Penitentiary, P.O. Box 2000
Bruceton Mills, West Virginia 26525