How a Pro Se Defeated the Feds 9-0

What a rare treat it is to hear directly from a successful appellant to the United States Supreme Court. How does it feel to win your case and be acquitted by the Supreme Court?

First I want to say that it's my privilege to discuss my case with you. The Supreme Court Press was instrumental in getting my cert petition granted. I have a great deal of trust in you. As far as how it feels - I'd like to first say that I am grateful to the Supreme Court for accepting my case and rendering the unanimous decision in my favor. However, it is a bittersweet moment, because I have already served the entirety of the sentence and I bear a great sadness having lost so much time with my wife and young children.

This isn't the first time you've been acquitted, is it - you were double-prosecuted right?

That is correct. I was also prosecuted by New York State authorities in Albany County for a year on the exact same charges. I was acquitted of those charges in October 2011. The case was thrown out by the judge, who called the case a waste of everybody's time.

I think we have his exact quote. We will post it on this page. How is it that you could be prosecuted a second time for the same thing? Isn't that double-jeopardy?

It is to normal homo sapiens of the English speaking variety, but not in the world of federal court. Even though we are one nation under god and a union, apparently when it comes to criminal prosecutions, we are all foreigners. They have this made up doctrine that the state of New York is like a separate sovereignty from the United States, so double-jeopardy is A-OK because the other trial was in a different sovereignty. I learned the hard way that when a case goes badly, some state prosecutors will ask for a mulligan and lateral the case to the feds for a second try.

How would re-trying the case help them if they've already lost once?

It gives them a chance to repair hurtful testimony in a new trial

What do you mean by "repair" testimony?

To change it. The key piece of evidence the state tried to put forth in the state trial was from an employee of the District Attorney named Bobby Muller who had fabricated a fanciful story that I had made an elaborate 16 point statement admitting to wrongdoing. There were only two problems with his fantasy. First, it was unwritten and unrecorded. Second there was an independent police officer who was present with Muller the entire time who testified that he never heard me say a thing. That's what led to the dismissal of the New York case.

Wow what a brave police officer. That is true heroism. But how is it possible that a DA employee can try to put a false statement into evidence?

It's called an oral admission and prosecutors love them because they guarantee a conviction. There are many countries that ban oral admissions because it is too easy for authorities to fake evidence. One reliable source told me that the Albany County District Attorney is able to get admissions in nearly 90{ea5aec0df3a08261209744b7736c709ce7e57ef98f2f4e88636fb888038f679a} of cases. How is that possible? I find it hard to believe that 9 out of 10 defendants simply fesses up to the fuzz. It seems like they are addicted to oral admissions.

So how was this testimony repaired at the federal trial?

Bobby Muller was allowed to change his testimony. At the state trial, he testified that the police officer was with him for two consecutive hours. At the federal trial, he brings a new story - that the police officer had left the room and that the statement magically occurred when the officer was out of the room. It's all on the record - in black and white.

That is shocking. Isn't that perjury?

Yes, there is gambling in Casablanca. Prosecution witnesses are never charged with perjury, because only the prosecutor can institute the charge. Perhaps defendants should be allowed to move the court to cite a prosecution witness for perjury. That would even things out a little.

So what was your strategy in federal court?

I couldn't understand why they were pursuing the case. After spending a few hours reviewing federal statutes and the governing Supreme Court Case law, I concluded that the law that the NDNY (Northern District New York) feds were prosecuting me under did not apply. They were trying to distort another statute and twist it to suit their agenda. It seemed pretty cut and dry. I think they were counting on waving a 20-year max sentence in front of my eyes and watching me crack and settle for a plea bargain.

And did the threats almost work?

No. I was scared out of my mind, but I never once considered a plea bargain for even a day. I wasn't going to admit to doing something I hadn't done, and at the time did not realize that Muller was going so brazenly perjure himself.

You represented yourself pro se at your federal trial, how did that come to happen?

I had expended considerable financial resources in the first trial and was not financially prepared for a double jeopardy prosecution in federal court. I did not want to drain my family's savings to pay for a second, federal attorney. Protecting my family's future was more important than protecting mine. It was perhaps naïve, but I thought that if I were able to converse directly with the judge and ask him to simply read the law that he would dismiss the case prior to trial.

But that's not what happened. The judge allowed the case to go to trial?

I walked into the federal courthouse expecting to go home the same day, but instead found myself in the middle of a trial. I learned the hard way that the conviction rate in NDNY lies somewhere between Stalinesque Russia and the Spanish Inquisition. The judge, who had previously signed special judicial subpoenas on my behalf, quashed them all on the eve of trial, meaning that all my evidence was gone. Muller was allowed to testify with his new story.

There was an issue with search warrants as well, correct?

The FBI did not have any search warrants. They had expired warrants from the state prosecution. The federal judge acknowledged that the warrants were "general warrants" - they failed to state a crime, had no limits on the scope of the search, and were essentially unlimited invitations to ransack my belongings and carry them away. Apparently, there is a magic wand in federal court called "good faith" that can waive all your rights away. They had taken all my computers away and wouldn't give them back. They also took my printers, my cameras, and my tax files. It's tough to be a productive and employed professional when all your digital assets are gone. But the most important thing is to get back are our digital baby pictures. I had the foresight to back them up, but they took my backup drives as well.

You chose not to appeal the search warrants or the false admissions. Why did you elect to appeal only the single issue?

I wanted an all-or-nothing appeal that would result in acquittal. Even though we could have won the search warrant or false admission issues, winning them would only result in a new trial and more shenanigans.

How did you do you think you did at trial?

Despite having had all my evidentiary subpoenas quashed the night before trial, having Muller spin his tall tale, and being mostly unprepared, I thought I did all right. I wasn't maybe that good stylistically, but I thought pretty good on the substance. I thought I had clearly won that trial and should have received a directed verdict. Instead, the judge put forth some gobbledygook jury instructions that invited a conviction and my goose was cooked.

Hate to dredge up bad memories, but you served out your entire sentence?

Indeed I did, a year at a miserable forced labor camp in Brooklyn.

Can you elaborate on what you mean by "forced labor camp"?

Sure. I was classified for a minimum security camp. However, by the unluck of the draw, I was assigned to a high-rise urban jail building called MDC-Brooklyn where I did not see the sun for six months. MDC-Brooklyn is a holding facility for defendants awaiting trial in New York City, but it needs a cadre of prison labor to keep the building running - cooking, plumbing, cleaning, etc. They force about 300 minimum security inmates to stay here and perform the labor. If you don't do it, you get put in solitary confinement and your sentence is extended. The building is overcrowded by 100{ea5aec0df3a08261209744b7736c709ce7e57ef98f2f4e88636fb888038f679a} and is a disgrace. There is no light, no space, and no ventilation.

Let's turn now to your application to the Supreme Court. You faced some long odds getting in, didn't you?

There was never a doubt in my mind that this case was going to get in to the Supreme Court. The lower court decisions were so loony and illogical that it didn't seem plausible that the Supreme Court would allow these decisions to stand. I knew I just had to bide my time until my petition could be filed and accepted by the court.

I think the numbers on getting into the court can be misleading because there are a lot of hopeless cases that are filed. If you've got a strong case, your chances of getting in are much higher than the published statistics.

You had a little help at the Supreme Court, didn't you? Tell us the story of you got the great Paul Clement, the former Solicitor General of the United States, to represent you at the Supreme Court?

Well, I was very lucky to have the help of what I call the two St. Pauls.

Paul Clement, as you reference, is the foremost Supreme Court barrister in the country - like a modern day Clarence Darrow. I was introduced to Clement by a friend's law school professor. Clement reviewed the case and immediately recognized the injustice. He signed on without hesitation and threw himself into the case. He has what I call an "uncluttered mind" - lucid and to the point - he brings great clarity to the argument - and is such a pleasure to work with.

The other St. Paul is my state attorney Paul Clyne, who is the former District Attorney of Albany County. He is a defense trial attorney par excellence with an encyclopedic mind that dissects cases like a law professor. He scares prosecutors because he knows all their tricks and can run circles around them at trial. He cares deeply about his clients and goes above and beyond the call of duty. The voters of Albany did themselves a disservice and me a huge favor when they voted him out of office and made him available to me.

Did you attend oral argument in Washington D.C.?

Yes, it was a little surreal to go to the Supreme Court and watch the nine justices discussing your case. It was like seeing a movie of your life. Paul Clement rocked oral argument. By the time he was done, the justices were completing his sentences.

We read the review of oral argument from courtroom bloggers.They were quite astonishing. Is it true that the justices were openly hostile to the Government's case?

It wasn't their fault. The lawyers from the solicitor general's office have to argue the cases they are assigned to. They didn't have a lot to work with. It was really NDNY's fault for giving them an unwinnable argument.

So you must have known you would win as soon as it ended?

9-0

You said earlier that you are not celebrating - that this is bittersweet. Are you angry at anyone - Muller for example?

That phase has long passed. I mostly feel sorry for the people who work on the grim federal conviction treadmill. Many of them are probably decent people trapped inside a system that demands nothing less than 100{ea5aec0df3a08261209744b7736c709ce7e57ef98f2f4e88636fb888038f679a} conviction rates and inhumanly long sentences. I feel a little sorry for Muller too - he's an older guy who probably wanted to get a gold star from his bosses - but he didn't count on another police officer exposing him as a liar. I'm a little annoyed with the NDNY federal prosecutor Elizabeth Coombe who willfully put him on the stand knowing that the admission was fabricated, but I think her karmic reward will be to forever be reminded by her colleagues that she was beaten at trial by a pro se defendant. Ms. Coombe cooked up what Scalia called absurd and nonsensical legal theories. She did the same thing on another high profile case where she went after former New York Senate President Joe Bruno, with another convoluted, cockamamie legal theory and lost.

Even though MDC-Brooklyn was a hellhole, I took away a lot of valuable life experiences and met different types of people that help me understand the world a lot better. I have faced fear and refused to back down. When you have no fear, then you are free.

Wow what an incredible story!!! Is this the first time that a pro se trial defendant has been acquitted by the Supreme Court?

It's the only case I'm aware of. For sure it's the only one that was preceded by an acquittal in state trial.

Sounds like it would make an awesome book!

And it will be one day. Truth is sometimes stranger than fiction.

Who will play you in the movie?

Ha ha. Hollywood would probably turn it into a superhero action movie.

Indeed it would! Thank you again for discussing your case with us.

My pleasure.