presumed guilty.txt

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Reprinted by permission from the 'Pittsburgh Press'

PRESUMED GUILTY

Copyright, 1991, The Pittsburgh Press Co.
By Andrew Schneider and Mary Pat Flaherty
The Pittsburgh Press

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THE LAW'S VICTIMS IN THE WAR ON DRUGS

  It's a strange twist of justice in the land of freedom. A law designed to
give cops the right to confiscate and keep the luxurious possessions of major
drug dealers mostly ensnares the modest homes, cars and cash of ordinary,
law-abiding people. They step off a plane or answer their front door and
suddenly lose everything they've worked for. They are not arrested or tried for
any crime. But there is punishment, and it's severe.

  This six-day series chronicles a frightening turn in the war on drugs. Ten
months of research across the country reveals that seizure and forfeiture, the
legal weapons meant to eradicate the enemy, have done enormous collateral
damage to the innocent.  The reporters reviewed 25,000 seizures made by the
Drug Enforcement Administration. They interviewed 1,600 prosecutors, defense
lawyers, cops, federal agents and victims. They examined court documents from
510 cases. What they found defines a new standard of justice in America: You
are presumed guilty.

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GOVERNMENT SEIZURES VICTIMIZE INNOCENT
PART ONE: THE OVERVIEW
February 27, 1991.

     Willie Jones, a second-generation nursery man in his family's Nashville
business, bundles up money from last year's profits and heads off to buy
flowers and shrubs in Houston. He makes this trip twice a year using cash,
which the small growers prefer.

     But this time, as he waits at the American Airlines gate in Nashville
Metro Airport, he's flanked by two police officers who escort him into a small
office, search him and seize the $9,600 he's carrying. A ticket agent had
alerted the officers that a large black man had paid for his ticket in bills,
unusual these days. Because of the cash, and the fact that he fit a "profile"
of what drug dealers supposedly look like, they believed he was buying or
selling drugs.

     He's free to go, he's told. But they keep his money - his livelihood - and
give him a receipt in its place.

     No evidence of wrongdoing was ever produced. No charges were ever filed.
As far as anyone knows, Willie Jones neither uses drugs nor buys or sells them.
He is a gardening contractor who bought an airplane ticket. Who lost his
hard-earned money to the cops. And can't get it back.

     That same day, an ocean away in Hawaii, federal drug agents arrive at the
Maui home of retirees Joseph and Frances Lopes and claim it for the U.S.
government.

     For 49 years, Lopes worked on a sugar plantation, living in its camp
housing before buying a modest home for himself, his wife, and their adult,
mentally disturbed son, Thomas.

     For a while, Thomas grew marijuana in the back yard - and threatened to
kill himself every time his parents tried to cut it down. In 1987, the police
caught Thomas, then 28. He pleaded guilty, got probation for his first offense
and was ordered to see a psychologist once a week. He has, and never again has
grown dope or been arrested. The family thought the episode was behind them.

     But earlier this year, a detective scouring old arrest records for
forfeiture opportunities realized the Lopes house could be taken away because
they had admitted they knew about the marijuana.

     The police department stands to make a bundle. If the house is sold, the
police get the proceeds.

     Jones and the Lopes family are among the thousands of Americans each year
victimized by the federal seizure law - a law meant to curb drugs by causing
financial hardship to dealers.

     A 10-month study by The Pittsburgh Press shows the law has run amok. In
their zeal to curb drugs and sometimes to fill their coffers with the
proceeds of what they take, local cops, federal agents and the courts have
curbed innocent Americans' civil rights. From Maine to Hawaii, people who are
never charged with a crime have had cars, boats, money and homes taken away.

     In fact, 80 percent of the people who lost property to the federal
government were never charged. And most of the seized items weren't the
luxurious playthings of drug barons, but modest homes and simple cars and
hard-earned savings of ordinary people.

     But those goods generated $2 billion for the police departments that took
them.

     The owners' only crime in many of these cases: They "looked" like drug
dealers. They were black, Hispanic or flashily dressed.

     Others, like the Lopeses, have been connected to a crime by circumstances
beyond their control.

     Says Eric Sterling, who helped write the law a decade ago as a lawyer on a
congressional committee:

     "The innocent-until-proven guilty concept is gone out the window."

---

THE LAW: GUILT DOESN'T MATTER

     Rooted in English common law, forfeiture has surfaced just twice in the
United States since Colonial times.

     In 1862, Congress permitted the president to seize estates of Confederate
soldiers. Then, in 1970, it resurrected forfeiture for the civil war on drugs
with the passage of racketeering laws that targeted the assets of convicted
criminals.

     In 1984, however, the nature of the law was radically changed to allow the
government to take possessions with- out first charging, let alone convicting,
the owner. That was done in an effort to make it easier to stake at the heart
of the major drug dealers. Cops knew that drug dealers consider prison time an
inevitable cost of doing business. It rarely deters them. Profits and
playthings, though, are their passions.  Losing them hurts.

     And there was a bonus in the law.  The proceeds would flow back to law
enforcement to finance more investigations. It was to be the ultimate poetic
justice, with criminals financing their own undoing.

     But eliminating the necessity of charging or proving a crane has moved
most of the action to civil court, where the government accuses the item - not
the owner - of being tainted by crime.

     This oddity has court dockets looking like purchase orders: United States
of America vs. 9.6 acres of land and lake; U.S. vs. 667 bottles of wine.  But
it's more than just a labeling change. Because money and property are at stake
instead of life and liberty, the constitutional safeguards in criminal
proceedings do not apply.

     The result is that "jury trials can be refused; illegal searches condoned;
rules of evidence ignored," says Louisville, Ky., defense lawyer Donald
Heavrin. The "frenzied quest for cash," he says, is "destroying the judicial
system."

     Every crime package passed since 1984 has expanded the uses of
forfeiture, and now there are more than 100 Statutes in place at the state and
federal level. Not just for drug cases anymore, forfeiture covers the likes
of money laundering, fraud, gambling, importing tainted meats and carrying
intoxicants onto Indian land.

     The White House, Justice Department and Drug Enforcement Administration
say they've made the most of the expanded law in getting the big-time
criminals, and they boast of seizing mansions, planes and millions in cash. But
The Pittsburgh Press in just 10 months was able to document 510 current cases
that involved innocent people - or those possessing a very small amount of
drugs - who lost their possessions.

     And DEA's own database contradicts the official line. It showed that
big-ticket items - valued at more than $50,000 - were only 17 percent of the
total 25,297 items seized by DEA during the 18 months that ended last
December.

     "If you want to use that 'war on drugs' analogy, then forfeiture is like
giving the troops permission to loot," says Thomas Lorenzi, president-elect of
the Louisiana Association of Criminal Defense Lawyers.

     The near-obsession with forfeiture continues without any proof that it
curbs drug crime - its original target.

     "The reality is, it's very difficult to tell what the impact of drug
seizure and forfeiture is," says Stanley Morris, deputy director of the federal
drug czar's office.

---

POLICE FORCES KEEP THE TAKE

     The "loot" that's coming back to police forces all over the nation has
redefined law-enforcement success. It now has a dollar sign in front of it.

     For nearly 18 months, undercover Arizona state troopers worked as drug
couriers driving nearly 13 tons of marijuana from the Mexican border to stash
houses around Tucson. They hoped to catch the Mexican suppliers and
distributors on the American side before the dope got on the streets.

     But they overestimated their ability to control the distribution. Almost
every ounce was sold the minute they dropped it at the houses.

     Even though the troopers were responsible for tons of drugs getting loose
in Tucson, the man who supervised the set-up still believes it was worthwhile.
It was "a success from a cost-benefit standpoint," says former assistant
attorney general John Davis.  His reasoning: It netted 20 arrests and at least
$3 million for the state forfeiture fund.

     "That kind of thinking is what frightens me," says Steve Sherick, a
Tucson attorney. "The government's thirst for dollars is overcoming any
long-range view of what it is supposed to be doing, which is fighting crime'

     George Terwilliger Ill, associate deputy attorney general in charge of the
U.S. Justice Department's program, emphasizes that forfeiture does fight crime,
and "we're not at all apologetic about the fact that we do benefit
(financially) from it."

     In fact, Terwilliger wrote about how the forfeiture program financially
benefits police departments in the 1991 Police Buyer's Guide of Police Chief
Magazine.

     Between 1986 and 1990, the U.S.  Justice Department generated $1.5
billion from forfeiture and estimates that it will take in $500 million this
year, five times the amount it collected in 1986.

     District attorney's offices throughout Pennsylvania handled $4.5 million
in forfeitures last year; Allegheny County, $218,000; and the city of
Pittsburgh, $191,000 - up from $9,000 four years ago.

     Forfeiture pads the smallest towns' coffers. In Lenexa, Kan., a Kansas
City suburb of 29,000, "we've got about $250,000 moving in court right now,"
says narcotics Detective Don Crohn.

     Despite the huge amounts flowing to police departments, there are few
public accounting procedures. Police who get a cut of the federal forfeiture
funds must sign a form saying merely they will use it for "law enforcement
purposes."

     To Philadelphia police that meant new air conditioning. In Warren County,
N.J., it meant use of a forfeited yellow Corvette for the chief assistant
prosecutor.

---

'LOOKING' LIKE A CRIMINAL
                                                                       
     Ethel Hylton of New York City has yet to regain her financial
independence after losing $39,110 in a search nearly three years ago in Hobby
Airport in Houston.

     Shortly after she arrived from New York, a Houston officer and Drug
Enforcement Administration agent stopped the 46-year-old woman in the baggage
area and told her she was under arrest because a drug dog had scratched at her
luggage. The dog wasn't with them, and when Miss Hylton asked to see it, the
officers refused to bring it out.

     The agents searched her bags, and ordered a strip search of Miss Hylton,
but found no contraband.

     In her purse, they found the cash Miss Hylton carried because she planned
to buy a house to escape the New York winters which exacerbated her diabetes.
It was the settlement from an insurance claim and her life's savings, gathered
through more than 20 years of work as a hotel housekeeper and hospital night
janitor.

     The police seized all but $10 of the cash and sent Miss Hylton on her way,
keeping the money because of its alleged drug connection. But they never
charged her with a crime.

     The Pittsburgh Press verified her jobs, reviewed her bank statements and
substantiated her claim she had $18,000 from an insurance settlement.  It also
found no criminal record for her in New York City.

     With the mix of outrage and resignation voiced by other victims of
searches, she says: "The money they took was mine. I'm allowed to have it, I
earned it."

     Miss Hylton became a U.S. citizen six years ago. She asks, "Why did they
stop me? Is it because I'm black or because I'm Jamaican?"

     Probably, both - although Houston police haven't said.

     Drug teams interviewed in dozens of airports, train stations and bus
terminals and along major highways repeatedly said they didn't stop travelers
based on race. But a Pittsburgh Press examination of 121 travelers' cases in
which police found no dope, made no arrest, but seized money anyway, showed
that 77 percent of the people stopped were black, Hispanic or Asian.

     In April 1989, deputies from Jefferson Davis Parish, Louisiana, seized
$23,000 from Johnny Sotello, a Mexican-American whose truck overheated on a
highway.