
  The Pittsburgh Press, Sunday, August 11, 1991

  Presumed Guilty
  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.

  The main article appeared next to the above, also on the front
  page, and later pages.

      Government seizures victimize innocent

  By Andrew Schneider
  and Mary Pat Flaherty

  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 this 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 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 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 crimes 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 criminals.

      In 1984 however, the nature of the law was radically changed
  to allow government to take possession without first charging, let
  alone convicting the owner. That was done in an effort to make it
  easier to strike 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 crime
  has moved most of the actions to civil court, where the government
  accuses the item -- not the owner -- of being tainted by a 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, the
  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 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 eighteen 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 setup 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 III, 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 (ED: Pgh
  is in Allegheny County), $218,000, and the city of Pittsburgh,
  $191,000 -- up from $9,000 four years ago.

      Forfeiture pads the smallest town's 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 the 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.

  [At this point in the article there is a picture of three people
  in an empty apartment, with the following caption:]

  Judy Mulford, 31, and her 13-year old twins, Chris, left, and
  Jason, are down to essentials in their Lake Park, Fla., home,
  which the government took in 1989 after claiming her husband,
  Joseph, stored cocaine there. Neither parent has been criminally
  charge, but in April a forfeiture jury said Mrs. Mulford must
  forfeit the house she bought herself with an insurance settlement.
  The Mulfords have divorced, and she has sold most of her
  belongings to cover legal bills. She's asked for a new trial and
  lives in the near-empty house pending a decision.

  "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 other major highways repeatedly said
  they didn't stop travellers based on race. But a Pittsburgh Press
  examination of 121 travellers' 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.

      They offered help, he accepted. They asked to search his
  truck. He agreed. They asked if he was carrying cash. He said he
  was because he was scouting heavy equipment auctions.

      They then pulled a door panel from the truck, said the space
  behind it could have hidden drugs, and seized the money and the
  truck, court records show. Police did not arrest Sotello but told
  him he would have to go to court to recover his property.

      Sotello sent auctioneer's receipts to police which showed he
  was a licensed buyer. the sheriff offered to settle the case, and
  with his legal bills mounting after two years, Sotello accepted.
  In a deal cut last March, he got his truck, but only half his
  money. The cops kept $11,500.

      I was more afraid of the banks than anything -- that's one
  reason I carry cash," says Sotello. "But a lot of places won't
  take checks, only cash, or cashier's checks for the exact amount.
  I never heard of anybody saying you couldn't carry cash."

      Affidavits show the same deputy who stopped Sotello routinely
  stopped the cars or black and Hispanic drivers, exacting
  "donations" from some.

      After another of the deputy's stops, two black men from
  Atlanta handed over $1,000 for a "drug fund" after being detained
  for hours, according to a hand-written receipt reviewed by the
  Pittsburgh Press.

      The driver got a ticket for "following to (sic) close." Back
  home, they got a lawyer.

      Their attorney, in a letter to the Sheriff's department, said
  deputies had made the men "fear for their safety, and in direct
  exploitation of the fear a purported donation of $1000 was
  extracted..."

      If they "were kind enough to give the money to the sheriff's
  office," the letter said, "then you can be kind enough to give it
  back." If they gave the money "under other circumstances, then
  give the money back so we can avoid litigation."

      Six days later, the sheriff's department mailed the men a
  $1,000 check.

      Last year, the 72 deputies of Jefferson Davis Parish led the
  state in forfeitures, gathering $1 million -- more than their
  colleagues in New Orleans, a city 17 times larger than the parish.

      Like most states, Louisiana returns the money to law
  enforcement agencies, but it has one of the more unusual
  distributions: 60 percent goes to the police bringing a case, 20
  percent to the district attorney's office prosecuting it and 20
  percent to the court fund of the judge signing the forfeiture
  order.

      "The highway stops aren't much different from a smash-and-grab
  ring," says Lorenzi, of the Louisiana Defense Lawyers association.

  Paying for your innocence

      The Justice Department's Terwilliger says that in some cases
  "dumb judgement" may occasionally cause problems, but he believes
  there is an adequate solution. "That's why we have courts."

      But the notion that courts are a safeguard for citizens
  wrongly accused "is way off," says Thomas Kerner, a forfeiture
  lawyer in Boston. "Compared to forfeiture, David and Goliath was a
  fair fight."

      Starting from the moment that the government serves notice
  that it intends to take an item, until any court challenge is
  completed, "the government gets all the breaks," says Kerner.

      The government need only show probable cause for a seizure, a
  standard no greater than what is needed to get a search warrant.
  The lower standard means the government can take a home without
  any more evidence than it normally needs to take a look inside.

      Clients who challenge the government, says attorney Edward
  Hinson of Charlotte, N.C., "have the choice of fighting the full
  resources of the U.S. treasury or caving in."

      Barry Kolin caved in.

      Kolin watched Portland, Ore., police padlock the doors of
  Harvey's, his bar and restaurant for bookmaking on March 2.

      Earlier that day, eight police officers and Amy Holmes Hehn,
  the Multnomah County deputy district attorney, had swept into the
  bar, shooed out waitresses and customers and arrested Mike Kolin,
  Barry's brother and bartender, on suspicion of bookmaking.

      Nothing in the police documents mentioned Barry Kolin, and so
  the 40-year-old was stunned when authorities took his business,
  saying they believe he knew about the betting. He denied it.

      Hehn concedes she did not have the evidence to press a
  criminal case against Barry Kolin, "so we seized the business
  civilly."

      During a recess in a hearing on the seizures weeks later, "the
  deputy DA says if I paid them $30,000 I could open up again,"
  Kolin recalls. When the deal dropped to $10,000, Kolin took it.

      Kolin's lawyer, Jenny Cooke, calls the seizure "extortion."
  She says: "There is no difference between what the police did to
  Barry Kolin or what Al Capone did in Chicago when he walked in and
  said, 'This is a nice little bar and it's mine.' the only
  difference is today they call this civil forfeiture."

  Minor crimes, major penalties

      Forfeiture's tremendous clout helps make it "one of the most
  effective tools that we have," says Terwilliger.

      The clout, though, puts property owners at risk of losing more
  under forfeiture that they would in a criminal case under the same
  circumstances.

      Criminal charges in federal and many state courts carry
  maximum sentences. But there's no dollar cap on forfeiture,
  leaving citizens open to punishment that far exceeds the crime.

      Robert Brewer of Irwin, Idaho, is dying of prostate cancer,
  and uses marijuana to ease the pain and nausea that comes with
  radiation treatments.

      Last Oct. 10, a dozen deputies and Idaho tax agents walked
  into the Brewer's living room with guns drawn and said they had a
  warrant to search.

      The Brewers, Robert, 61, and Bonita, 44, both retired form the
  postal service, moved from Kansas City, Mo., to the tranquil,
  wooded valley of Irwin in 1989. Six months later, he was
  diagnosed.

      According to police reports, and informant told authorities
  Brewer ran a major marijuana operation.

      The drug SWAT team found eight plants in the basement under a
  grow light and a half-pound of marijuana. The Brewers were charged
  with two felony narcotics counts and two charges for failing to
  buy state tax stamps for the dope.

      "I didn't like the idea of the marijuana, but it was the only
  thing that controlled his pain," Mrs. Brewer says.

      The government seized the couple's five-year-old Ford van that
  allowed him to lie down during his twice-a-month trips for cancer
  treatment at a Salt Lake City hospital, 270 miles away.

      Now they must go by car.

      "That's a long painful ride for him. His testicles would
  sometimes swell up to the size of cantaloupes, and he had to lie
  down because of the pain. He needed that van, and the government
  took it," Mrs. Brewer says.

      "It looks like the government can punish people any way it
  sees fit."

      The Brewers know nothing about the informant who turned them
  in, but informants play a big role in forfeiture. Many of them are
  paid, targeting property in return for a cut of anything that is
  taken.

      The Justice Department's asset forfeiture fund paid $24
  million to informants in 1990 and has $22 million allocated this
  year.

      Private citizens who snitch for a fee are everywhere. Some
  airline counter clerks receive cash awards for alerting drug
  agents to "suspicious" travellers. The practice netted Melissa
  Furtner, a Continental Airlines clerk in Denver, at least $5,800
  between 1989 and 1990, photocopies of checks show.

      Increased surveillance, recruitment of citizen-cops, and
  expansion of forfeiture sweeps are all part of a take now,
  litigate later syndrome that builds prosecutors' careers, says a
  former federal prosecutor.

      "Federal law enforcement people are the most ambitious I've
  ever met, and to get ahead they need visible results. Visible
  results are convictions, and, now, forfeitures," says Don Lewis of
  Meadville, Crawford County. (ED: a Pa county north of Pgh by two
  counties.)

      Lewis spent 17 years as a prosecutor, serving as an assistant
  U.S. attorney in Tampa as recently as 1988. He left the Tampa Job
  -- and became a defense lawyer -- when "I found myself tempted to
  do things I wouldn't have thought about doing years ago."

      Terwilliger insists U.S. attorneys would never be evaluated on
  "something as unprofessional as dollars."

      Which is not to say Justice doesn't watch the bottom line.

      Cary Copeland, director of the department' Executive Office
  for Asset Forfeiture, says the tried to "squeeze the pipeline" in
  1990 when the amount forfeited lagged behind Justice's budget
  projections.

      He said this was done by speeding up the process, not by doing
  "whole lot of seizures."

  Ending the Abuse

      While defense lawyers talk of reforming the law, agencies that
  initiate forfeiture scarcely talk at all.

      DEA headquarters makes a spectacle of busts like the seizure
  of fraternity houses at the University of Virginia in March. But
  it refuses to supply detailed information on the small cases that
  account for most of its activity.

      Local prosecutors are just as tight-lipped.

      Thomas Corbett, U.S. Attorney for Western Pennsylvania, seals
  court documents on forfeitures because "there are just some things
  I don't want to publicize. the person whose assets we seize will
  eventually know, and who else has to?"

      Although some investigations need to be protected, there is an
  "inappropriate secrecy" spreading throughout the country, says
  Jeffrey Weiner, president-elect of the 25,000 member National
  Association of Criminal Defense Lawyers.

      "The Justice Department boasts of the few big fish they catch.
  But they throw a cloak of secrecy over the information on how many
  innocent people are getting swept up in the same seizure net, so
  no one can see the enormity of the atrocity."

      Terwilliger says the net catches the right people: "bad guys"
  as he calls them.

      But a 1990 Justice report on drug task forces in 15 states
  found they stayed away from the in-depth financial investigations
  needed to cripple major traffickers. Instead, "they're going for
  the easy stuff," says James "Chip" Coldren, Jr., executive
  director of the Bureau of Justice Assistance, a research arm of
  the federal Justice Department.

      Lawyers who say the law needs to be changed start with the
  basics: The government shouldn't be allowed to take property until
  after it proves the owner guilty of a crime.

      But they go on to list other improvements, including having
  police abide by their state laws, which often don't give police as
  much latitude as the federal law. Now they can use federal courts
  to circumvent the state.

      Tracy Thomas is caught in that very bind.

      A jurisprudence version of the shell game hides roughly
  $13,000 taken from Thomas, a resident of Chester, near
  Philadelphia.

      Thomas was visiting in his godson's home on Memorial Day,
  1990, when local police entered looking for drugs allegedly sold
  by the godson. They found none and didn't file a criminal charge
  in the incident. But they seized $13,000 from Thomas, who works as
  a $70,000-a-year engineer, says his attorney, Clinton Johnson.

      The cash was left over from a Sheriff's sale he'd attended a
  few days before, court records show. the sale required cash --
  much like the government's own auctions.

      During a hearing over the seized money, Thomas presented a
  withdrawal slip showing he'd removed money from his credit union
  shortly before the trip and a receipt showing how much he had paid
  for the property he'd bought at the sale. The balance was $13,000.

      On June 22, 1990, a state judge ordered Chester police to
  return Thomas' cash.

      They haven't.

      Just before the court order was issued, the police turned over
  the cash to the DEA for processing as a federal case, forcing
  Thomas to fight another level of government. Thomas is now suing
  the Chester police, the arresting officer, and the DEA.

      "When DEA took over that money, what they in effect told a
  local police department is that it's OK to break the law," says
  Clinton Johnson, attorney for Thomas.

      Police manipulate the courts not only to make it harder on
  owners to recover property, but to make it easier for police to
  get a hefty share of any forfeited goods. In federal court, local
  police are guaranteed up to 80 percent of the take -- a percentage
  that may be more than they'd receive under state law.

      Pennsylvania's leading police agency -- the state police --
  and the state's lead prosecutor -- the Attorney General --
  bickered for two years over state police taking cases to federal
  court, an arrangement that cut the Attorney General out of the
  sharing.

      The two state agencies now have a written agreement on how to
  divvy the take.

      The same debate is heard around the nation.

      The hallways outside Cleveland courtrooms ring with arguments
  over who will get what, says Jay Milano, a Cleveland criminal
  defense attorney.

      "It's causing a feeding frenzy."

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