Peter Van Doren Vs. MS-13

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00:08 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.

00:10 Aaron Powell: And I’m Aaron Powell.

00:11 Trevor Burrus: Joining us today again is Peter Van Doren. A guest we like so much that we gave him his own theme music. He’s a senior fellow at the Cato Institute and editor of Regulation Magazine. Welcome back to Free Thoughts, Peter.

00:24 Peter Van Doren: Thanks for having me.

00:25 Trevor Burrus: A few months ago, what has it been about two months now? You had an interesting experience of a jury duty. Everyone gets called for jury duty at some point, but you actually got to serve on a jury. Give us a little bit of background on that.

00:40 Peter Van Doren: On February 20th, 2018, I reported to the Federal District Court for the Southern District of Maryland in Greenbelt, Maryland for possible Federal jury duty. And there were 500 jurors and we were assigned random numbers. I was 0267 I think, and you sit in numerical order and voir dire took all day, and the joke at Cato of course is that when we carry our jury nullification books to voir dire, we will never be allowed to serve on a jury. I did not carry a book. But during voir dire, I was… There were all sorts of questions they asked. “Is anyone a member of law enforcement? Is anyone a lawyer? Is anyone… ” Then there was a question, “Does anyone work on behalf of victim rights?” And so I said, “Alright, I should disclose that I’m an analyst at the Cato Institute, and we advocate for less criminalization of lots of things.”

01:46 Peter Van Doren: And I thought sure the prosecution would say, “Oh, we don’t want him on the jury.” Well, the judge simply said, “Fine, and would that affect your ability to hear the case before you fairly and judge only on the case and the law?” And I said, “No, it would not affect me.” And he said, “Stand back and you’re still in.” [chuckle] It took all day. 4:00 in the afternoon, they start picking in random number order the people who are left after all the people have been… Well, they… Actually, I guess, at some point I should describe what this trial was about.

02:25 Trevor Burrus: Well, you didn’t know. Did they tell you what the type of trial was during voir dire?

02:29 Peter Van Doren: Yes, they did, and then…

02:30 Trevor Burrus: Was it just there was MS-13 and a conspiracy case, or?

02:33 Peter Van Doren: They said this involves gangs and MS-13. And so one of the voir dire questions was, “Has anyone have any personal experiences with gang activity?” My goodness, 100 people stood up and that questioning took hours, and the jury was drawn from the Southern District of Maryland, which is everything south of Baltimore, those counties, and apparently in PG County, which is where the Spanish immigrants tend to live in this area, as well as Virginia, there is a tremendous amount of gang activity. And I was personally unaware of it, although I’ve read a bit about it in the newspaper. They did ask whether anyone was engaged in victim rights, and I sort of said, “Maybe that’s me.” And then that we were for less criminalization of activity. But anyway I was picked, I was the 12th juror. And you raised your hand, and I was sworn in and I said, “Oh my goodness.” ‘Cause they told us this trial was gonna last four weeks and I said, “Oh wow.” My life has changed, and I’m not going to be able to go to Cato for a while. And this is a big deal, this is a murder, conspiracy, RICO case. And I then said, “I’m gonna learn a lot about the law.” And so that’s what we’re here today to talk about.

04:00 Aaron Powell: So what were the specifics of the alleged crime?

04:03 Peter Van Doren: The defendant was charged with being a member of an ongoing criminal conspiracy, which is RICO. The Racketeering Influence and Corrupt practices Act of…

04:15 Trevor Burrus: 1973, I believe.

04:17 Peter Van Doren: 19…

04:18 Trevor Burrus: 1970? Something around there.

04:20 Peter Van Doren: And I didn’t… I sorta knew a little about that and we weren’t supposed to look up at night. We’re not supposed to look up anything about gangs or anything.

04:29 Trevor Burrus: Oh man that would really kill me.

[chuckle]

04:31 Peter Van Doren: And I’m used to doing homework. Anyway, I did not. Part of what we’re gonna talk about today is conspiracy law and how it differs from probably Cato-​approved notions of individual causation. This person, the defendant, was charged with participation in ongoing criminal enterprise, I.e. MS-13, and participation in a series of murders. In particular one in Frederick, where sadly a recent El Salvador immigrant, who was a teenager who was fleeing El Salvador because of gang activity to live with relatives in Frederick, Maryland, was targeted for killing, and in fact was killed by a branch of MS-13 in this area. And the defendant was charged with participation in that crime. And lots of other bad things, which were then part of the charge of being a member of an ongoing criminal conspiracy. The defense argued that this person was peripherally involved, and here was the interesting thing, that the murder in question, the shooter involved had already been deported. The defendant was charged with just participating in knifing the victim 13 times after the shooting took place with a single gunshot wound to the head. And the defense lawyer raised the issue of whether brain death had already occurred and thus, stabbing a corpse isn’t murder.

06:08 Trevor Burrus: Well, it technically is not murder.

06:10 Peter Van Doren: Well, that’s the…

06:14 Aaron Powell: Advise against it though, still. [chuckle]

06:15 Trevor Burrus: Yeah, it’s desecration of a corpse at the maximum, if they are in fact dead.

06:20 Peter Van Doren: There was no physical evidence linking the defendant to the crime, there were no knives recovered, there were no fingerprints, there was no DNA evidence.

06:30 Aaron Powell: Why do they think he stabbed him?

06:36 Peter Van Doren: All the witnesses in the trial were gang members who had pleaded guilty in return for sentence reductions. Out of all the gang members, this was the only person who did not plead guilty and requested a trial. And so the weak…

06:53 Trevor Burrus: How gauche it was for him to actually request a trial. If everyone else pleaded out, come on, they must have been kind of upset.

07:02 Peter Van Doren: They being?

07:03 Trevor Burrus: The prosecutors. Oftentimes, most criminal prosecutions do not go to trial. And requesting a trial can be… Prosecutors like them, but they would rather get rid of stuff before going to trial. About upward of 95% of criminal charges are pled out.

07:21 Peter Van Doren: Exactly, and when I spoke… When I gave a Cato seminar about my experience and said, “The people involved didn’t seem to me to be, exude the expertise that I would have thought.” Clark, one of our colleagues, who’s a lawyer, said, “Oh well, this may have been their first trial. There’s so few trials anymore. That the fact that they seem like rookies to you, they may have in fact been rookies, even though they spent years as Federal Prosecutors.”

07:56 Aaron Powell: And this guy, I assume, had public defenders?

08:00 Peter Van Doren: We thought so, but it… We got to talk to the judge after the trial was over. And we asked the judge that because the defense seemed pretty competent. And so we said, “Is that a public defender?” And he said, “No. This person was the… ” All the witnesses who had pleaded guilty had public defenders. And so, I guess under Federal procedure or the law, I’m not sure, this last defendant could not have a public defender, the judge said. And instead received, in effect private defense counsel at some high hourly rate at government expense.

08:39 Trevor Burrus: It was probably conflict of interest amongst the Public Defenders Office in that district and all the other defendants who had public defenders, would be my guess.

08:48 Peter Van Doren: It seemed [08:48] ____.

08:49 Aaron Powell: What would the conflict be?

08:51 Trevor Burrus: They’re in the same office. You don’t remember legal profession class, Aaron? [chuckle]

08:56 Aaron Powell: I’ve blocked so much of it out.

08:57 Trevor Burrus: He’s blocked law school out of his mind. Yeah, being in the same office requires screening or just actually using a voucher or something…

09:04 Aaron Powell: Oh yeah, okay, I remember that stuff.

09:07 Trevor Burrus: See, he barely remembers any of his, three years of his life. But anyway, so first of all what…

09:12 Aaron Powell: Well, criminal procedure was just a semester of my life…

09:15 Trevor Burrus: That’s true, no that’s legal ethics. But, anyway, going back to the trial. What was the…

09:23 Aaron Powell: See, now I’m just digging myself deeper here.

[chuckle]

09:24 Trevor Burrus: Exactly. What was the most… As someone who’s an economist who doesn’t do law, what was your first reaction to the trial in the sense of, this is not like television or this is not what you expected, as the trial moved forward?

09:37 Peter Van Doren: I guess, the first… I have some reactions to trials as processes and then I’ll have some substitive things about the law. The first was, because it was a long trial and because it involved conspiracy, my experience may not be typical at all of what normal criminal trials are. This may be specific to my experience. But it felt like a very, very mysterious Dickens novel done in installments. I wrote notes. We were all given notebooks. Many of us took notes. There was an engineer on the jury. He and I were the kind of note-​taking nerds that you might suspect. But of those who were more ordinary background on the jury also seemed very interested and took notes. Some weren’t paying attention, but I got a sense that the citizens were taking this very seriously, and we all wrote notes. And as someone who’s taught college classes for 35 years or so, I found the trial to be a mystery, where I didn’t know how much I had to hang onto in my head.

10:52 Peter Van Doren: Because you’re presented the charges and the jury instructions at the end. You are given a prosecution view and a defendant view upfront with the opening statements. But through all the introduction of mayhem and testimony and knives and ballistic evidence and this and that and the other thing, and you’re writing and trying to figure out, which of this do I have to hang onto for what purpose? Here was the biggest puzzle, which is, during our deliberations we were puzzled on some things and our own notes disagreed. “Did you get that?” “Can you find… ” Right, we were asking each other.

11:34 Peter Van Doren: We said, “Alright, let’s ask for a transcript. Let’s ask for a read-​out of who said what and why on this.” A couple hours later, the judge replied to us, that a transcript doesn’t exist. And we go, “What?” It turns out, at least in this court, I don’t know in general, but in this Federal District Court in Greenbelt, Maryland all the stuff we see on TV about transcripts and reading back the transcripts. That’s not possible. Transcripts are produced not in real time, but later, and they take months we were told by the judge.

12:11 Aaron Powell: Do they have a court reporter?

12:13 Peter Van Doren: Yes. She was there taking… In fact, because the testimony often involves Spanish and then translation and gang slang and gang words, the court reporter was often asking how to spell this Spanish word or whatever, and…

12:33 Trevor Burrus: I can’t think of a reason why that would be except maybe fighting over the record.

12:37 Aaron Powell: The contents of them?

12:38 Trevor Burrus: Yeah. Not being a trial attorney, but lawyers can fight forever over whether or not the transcript is accurate when a jury asks for it to be read back to them or played back to them.

12:49 Peter Van Doren: So it wasn’t just me. All of us, all jurors were shocked that we were reliant on our notes, which we weren’t told would be the only thing we had. The judge said, “Just rely on your recall.” Well, it was four weeks of testimony. And so going way back to week one where they were fussing about this bullet and that bullet and who was there and who wasn’t and who said what to whom in Spanish. Anyway, the jurors, we were shocked that we were so dependent on our notes. And as an instructor and when I was a student, I always reworked my notes at night after class. You take them in real time, but it’s so fast that you can’t digest it all. And then it’s the reworking of the notes to make a coherent story, at least in your mind, even if it’s totally wrong.

13:47 Peter Van Doren: That for me wasn’t possible in the trial. We weren’t allowed to take our notes home, and I sort of get that. It’s you can’t discuss or do anything about the trial off site, but that looking and reworking and then thinking of questions to ask… I mean I sort of wanted to raise my hand and ask some questions along the way about what the heck’s going on here. And I’ll give you an example. On day two of the trial, it was clear they were laying out all these gang members in their Spanish names and their gang names, and then there were photos and then we were lost. And I said so. We sent a note to the judge, “Can we have a playbill? Can we have a list of all the players here and what’s going on and who’s on what’s photo and what their names are?” And afterwards, the judge said that was really good. That was a good request. And they did fulfill our request and indeed introduced that into testimony. But the defense argued strenuously against this playbill because it was created by the person who testified and introduced it into testimony, was a Homeland Security agent.

15:02 Peter Van Doren: And so I get it. The defense is saying in effect that this playbill, this list makes, reifies this notion that in fact there was a gang and here are all the players. And in fact, my defense is that this is a fiction or that it’s sort of not a fiction, but this defendant’s name who’s on there is a member of this thing. Well now it’s in print and you jurors are all gonna see this as in effect evidence that isn’t in the defense’s interests to admit is true. And so I now understand all this scrum over that, but in real time, we were lost. And I don’t know how we would’ve dealt with things in deliberations if we didn’t have this like who was who and who said this and, “Oh yeah, they were in El Salvador and they were in prison and they weren’t…,” etcetera, etcetera.

16:04 Aaron Powell: Do you think that your lostness benefited one side versus the other?

16:09 Peter Van Doren: Well, since it was remedied early, I can’t… I have to do the counterfactual, which is I don’t know. It’s just Peter’s logical nature. I felt like if our job is to try facts based on evidence, then what I said in the Cato seminar was I would introduce the charges at the start. And then every day they would say, “Well, this testimony is related to this charge and then you will end up having to decide the veracity of this testimony vis a vis this charge.” Whereas at the end of five, four weeks, five weeks, we were given this three-​page list of charges and then saying to ourselves what parts of who said what are linked to these things.

17:03 Aaron Powell: But I can see the argument against doing it the way that you’ve proposed, which is when people, you would’ve fixated upon the charges and then you would have seen all of the testimony through light of that and would’ve been looking for things, the same as like to some extent, you buy a red car and then all of a sudden you start noticing all the red cars on the road, like you would have been on it. You wouldn’t have been assessing all the evidence, but only the evidence that spoke to what you thought was important. Whereas if you put it at the end, then you have all of the presented testimony and evidence in mind and can kinda…

17:37 Trevor Burrus: I think, yeah, there is where I think the defense attorneys would agree with that because a lot of times you spar over jury instructions. In Federal court from what I understand, they’re a little bit more regimented, but some of my friends who practice in state courts, after everything is done, they’re like, “What are the jury instructions?” Sometimes they’re standardized, but what you tell a jury is very leading to a jury. And when you tell it to a jury is very leading to a jury.

18:01 Aaron Powell: When I was… After my first year at law school, the summer of my first year at law school, I was called on to a jury for a homicide case that was substantially less complex than this one. But we had in the jury room at the end as we were deliberating after I think two days of testimony, we had a couple of questions of clarification about jury instructions, ’cause we just weren’t 100% sure. And sent a note to the judge and the response was, “You have to use what’s there.”

18:32 Peter Van Doren: Guess what? That’s what we got.

18:33 Aaron Powell: And it’s because if he had clarified, that would have been something else that the opposing counsels would have had to agree on.

18:41 Peter Van Doren: We got the same treatment. Jumping ahead, during our deliberations, twice we asked for help and the judge, after hours, just replied, “Please read the instructions.” And we’d kinda just throw our heads and pencils up in the air and go, “That wasn’t helpful.” And particularly ’cause we were dealing with layman’s conceptions of conspiracy.

19:04 Trevor Burrus: Which are not the same as the Federal government’s conception of conspiracy.

19:05 Peter Van Doren: Exactly, exactly. And we were, mostly because of me, the collective was hung up, because I was resisting convicting this person of conspiracy. I was willing to convict on gang membership, but then I said conspiracy means before they went to Frederick and did all these bad things, they sort of talked about it in some way that there’s evidence of. And it turns out under the definition of RICO and conspiracy and things like that, that really wasn’t necessary. And I and then the others didn’t understand that, and then we gradually did and realized that once we found the person defended to be a member of an ongoing criminal conspiracy, all the rest of the charges sort of logically follow and we didn’t really have the right to not convict given the way the law is written and the instructions were given.

20:02 Peter Van Doren: And I asked the judge specifically about this after the fact, and he said… ‘Cause during the deliberation, the logical thing I just stated which is we didn’t have any choice once we did the first thing. Everyone said, “Oh, no. We have to go through and talk about all these individually.” And I said, “It’s already happened whether you realize it or not.” And the judge afterwards basically said to me when I asked him, he said, “Yeah, you’re right.” So I said, “Why are there all these other charges?” And he said, “ ‘Cause prosecutors pile on so that the sentence goes way up, so that we then don’t have to do this.” I.e., a trial.

20:43 Trevor Burrus: Going to your question about… Just to add some of my knowledge here about the mystery of being on a jury. Historically, it wasn’t always that way. Actually, in common law era England, the jury was actually investigative. They would go to the… And sometimes they will take a jury to a crime scene and stuff like that. I think they did that in the OJ trial, but the jury would actually investigate the facts and give its own wisdom. Slowly over the years, I won’t go into that, everything about the trial has been turned into keeping the jury as sort of like much children as we can possibly keep them with rules of evidence as saying, “What will the jury hear and what won’t they hear? And what inflames the jury and what doesn’t inflame the jury?” Aaron and I, Aaron might remember this. We had evidence class together. And the first case…

21:34 Aaron Powell: I do remember taking evidence class.

21:35 Trevor Burrus: Yes. [chuckle] The first case that we read in evidence class, which are the rules of what you can present to a jury, the first case that you read in that case book was a case about a horribly dysfunctional jury. Do you remember this case?

21:46 Aaron Powell: Mm-​hmm. Mm-​hmm.

21:46 Trevor Burrus: Where the juror came to the judge or after the jury had given their verdict, he said, “I can’t in good conscious say,” ’cause they were… No one was paying attention. People were sleeping. People were doing drugs in the jury room. I wanna upset this jury verdict by saying that this jury was dysfunctional. So they have all these hearings about the jury and say, “Are we gonna overturn this jury verdict?” And they say, “No.” It takes a lot to overturn a jury verdict from a juror testifying that deliberations were problematic. And that illustrates the fact that to what we think about in a trial is that the jury is a black box. We generally do not wanna look inside that box to see how that box operates. We wanna feed things into that box that are clean when they get in there and make sure the jury doesn’t know anything else that we don’t feed into the jurors, including things that might be very, very probative of guilt, like prior bad acts, that this person was convicted before of rape so they probably rape today.

22:44 Trevor Burrus: That’s not allowed, and all these things, and we keep you in mystery. And if you’re not a lawyer, it’s even more mysterious because then you don’t understand why they’re doing these processes in this way. And it’s just part of the general trial, so it’s not surprising to me that it was so mysterious to you as an economist and not a lawyer.

23:03 Peter Van Doren: I asked the judge lots of questions. We all did actually afterwards, and mostly about this mystery and what we felt like we didn’t know what to do. And he said he still taught law school classes and he’d been a federal judge 30-​some odd years, very experienced. And then every time I said, “Maybe you oughta consider.” And he said, “Nah, nah. We don’t do that.” [chuckle] And whatever common sense my arguments might make, they’re gonna have no effect on anything as best I can tell.

23:38 Trevor Burrus: Well, the law it’s inherently conservative. It’s, as my property law professor used to say, “It’s agents of the dead ruling over the living.”

23:45 Aaron Powell: But I wonder how much those things would change. They’re discreet reforms that we at Cato have offered. There are legitimate concerns people have about the veracity of eyewitness testimony and all sorts of things like that. The medical bite examiners and forensic stuff like that. But as far as the more procedural stuff, my sense from when the jury I was on first went back to the jury room, and I was foreman, and so they had me, I took a vote. And it was like, at that point, we hadn’t really talked through much of the evidence that we had been presented, we hadn’t talked through it at all. And it was… More people were just kind of based on their general perspective from sitting through two days, they had a response, and that was the one they gave, which in our case was almost everyone said, “Not guilty.” Everyone, but one person said, “Not guilty.”

24:42 Aaron Powell: And then the deliberations didn’t budge anyone on that. And so I wonder if, I mean you could make these procedural things to fix it, but it makes me think of, there’s studies done where they’ll give people a very systematic matrix for grading the papers, and then they’ll ask other people to just give the paper a quick read, and pick the grade that their gut says. And they end up getting… The two groups end up getting basically the same grades. And so I just wonder if it’s just this general impression you get, but these kind of changes wouldn’t actually affect much in the outcome.

25:13 Aaron Powell: And in our case the one person who disagreed with the group, it wasn’t any sort of principal disagreement. It was simply she… That this was a case where a guy had gone to a party, he brought a gun with him. Someone ended up being shot at the party. It wasn’t clear whether it was him who had… Whether he’d done the shooting, but her response was, “Nice people don’t bring guns to parties, so therefore, he’s guilty.” So that wasn’t an instance of a different interpretation would have changed anything. So I just wonder how much, the jury is such a black box, and I just wonder how much any sorts of tinkering on the margins would matter much at all?

25:49 Peter Van Doren: The nerds on the jury sort of had my sentiments, whereas other people just had impressions of these people were good or bad or and etcetera, etcetera. So I guess, when I’ve talked to my Cato colleagues subsequently to this experience, they’ve said, “On average, people like you are never allowed on juries ever.” And so this very nerdy, very make sure everything’s right, we worry about convicting someone who’s not guilty, and all that. That’s a very intellectual perspective and the ordinary people on the street just wanna make sure there are no gang guys out there that are marauding in their neighborhoods, not the much more abstract intellectual way of dealing with things that is common around here.

26:44 Trevor Burrus: How did… So the deliberations during your trial, as you said, as soon as you realized that conspiracy meant being a member of an organization that carried on criminal predicate acts, which is what basically it means in the RICO statute, that deliberation was over basically ’cause it was clear he was a member?

27:02 Peter Van Doren: Well, no. I was… We have the charging form in front of us, so I, based on the evidence, said, “He was guilty of being member of an ongoing criminal enterprise.” But then I wasn’t sure whether he conspired, in my sense of the word, to commit this murder.

27:22 Trevor Burrus: But then you learned that conspiracy meant something different?

27:25 Peter Van Doren: I learned that my kind of narrow, grammatically common… And the other jurors also said, “Yeah, Peter made, yeah conspiracy.” Yeah, you sort of have to whatever. And so that’s when we asked for testimony about, there was a disagreement among the witnesses, I.e., the other gang members, as to whether a phone call did or did not come from an El Salvador prison, and whether the defendant was there when that phone call came in ordering the hit on this person. And I said, “Doesn’t that matter?” And it turns out, it doesn’t. And so then they said, “Well Peter, the cell phone evidence,” which we can talk about, “the cell phone evidence placed all the gang members involved in that day. They went to one guy’s house, and you could see the phone movement. And then they went up 270 to Frederick. And then all the phones were around where the murder happened. And then all the phones including the victims went down 270. And then halfway towards DC on 270, the victim’s phone disappears, I.e., it was smashed and thrown out in the car by the testimony we received.” And that’s when the cell phone records for that phone end.

28:37 Peter Van Doren: And so I said, “That’s pretty… ” The notion that all these guys just happen to only had cell phone evidence 30 days before and 30 days after this event, because the defense claim was that they had just happened to go to Frederick to smoke marijuana in the woods with their friend. And based on the fact that they hadn’t gone there before or after in a month, and then all the cell phone evidence during the time of the murder seemed, I said, “I’m convinced this person was present at the murder.” So then I didn’t know legally what I should… What did that… Could I contain it and say that there were lesser charges possible?

29:21 Peter Van Doren: ‘Cause the charge, the jury instructions actually talked about second-​degree murder, and this and that and the other thing. But in fact, we weren’t given that choice, and I still don’t actually know why, about that. So we asked the judge some of these things, and he just sent back, “Please read the instructions.” And it was like this, so eventually I realized this, 11 people wanted to convict, and Peter was asking questions and not getting very far. And I didn’t know what to do.

29:54 Trevor Burrus: So you eventually voted to convict?

29:56 Peter Van Doren: Yes.

29:57 Trevor Burrus: Yes, because even though it may not makes sense, in terms of what you would common sense say conspiracy is, in the RICO sense, Count 1 here, I’m looking at the counts, it does qualify under RICO, which is a stunningly capacious statute that can pretty much get anyone who is a member of any organization that is doing underlying criminal activity which they always say racketeering, it means racketeering. Racketeering does not mean your classic running numbers. Any underlying criminal enterprise. I think I read this in the charges, it says “murder in the aid of racketeering”, “commit murder in the aid of racketeering”. Now again, racketeering is this old term meaning who’s running numbers. It really means anything from accounting fraud to large mafioso, which is why this statute was passed. It was passed purportedly to fight organized crime as part of the Omnibus Act of 1970 and so they could go after large criminal organizations, and it’s been misused since then to go after anyone who is a member of an organization that does anything vaguely criminal.

31:10 Peter Van Doren: I did ask my colleague, Clark, about whether there was the legal equivalent of market failure. In other words, if he had been around then, if Cato had existed at this time, what would we have said about the need for this statute? And he said, “Well, there really was evidence that lots of juries in Queens weren’t convicting lots of people who had done very bad things, and thus even Cato at the time may have said there was a reason for collective responsibility, as it were.” Which I was surprised he said that, that he didn’t just dismiss this as made up, but rather there was perhaps a need for it. And then New York prosecutors aggressively used it and the Mafia as we know it has been disbanded. But now the Cato perspective is that it’s now being used in lots of ways, mostly white collar, that were never intended to be used and he hadn’t actually thought about whether reviving it for El Salvador gangs was valid or not, and whether it was necessary or not.

32:28 Aaron Powell: How does mens rea play out in RICO?

32:32 Trevor Burrus: It does not. So some of these counts have mens rea, it depends… There’s a civil and a criminal side of RICO, and conspiracy though is a difficulty because the underlying predicate act, you don’t have to intend to… It’s not a specific intent. You just have to intend to be a member of the organization.

32:51 Aaron Powell: Do you have to know that the organization is criminal? So like in that novel, The Firm, when he joins that law firm that’s actually a criminal organization but doesn’t know it?

33:00 Trevor Burrus: The intent has to be to be a member of the organization, that’s the problem here with the separation between whether or not you know that they’re carrying out illegal things. I would say that you do to some extent.

33:11 Peter Van Doren: In this particular context…

33:13 Trevor Burrus: But I’m not a trial attorney, so…

33:16 Aaron Powell: Probably like in this particular case you kind of know that MS-13 is a criminal organization?

33:21 Peter Van Doren: Well testimony was introduced in this particular case about the defendant wearing a hat made in a prison in El Salvador which said “MS-13” and “Normandy Clique” on it, and Facebook photos with gang signs and tattoos, that was a week of testimony about that. And then gang experts saying that if you use these tattoos or use those signs without permission, then you’ll be killed, I.e., kind of a brand name misuse kind of thing. And then the defense lawyer was saying…

33:55 Aaron Powell: Like enforce your trademark?

33:57 Trevor Burrus: No, they’re really big on trademarks, yeah.

33:58 Peter Van Doren: The defense lawyer was saying,“Well, in this particular case now and then there are people who aren’t members who do display gang signs,” and things like that. So trying to introduce the possibility that this was just a winter ski cap that the defendant was wearing prominently in Facebook photos and really wasn’t a sign of gang membership.

34:23 Trevor Burrus: Well, gets to Aaron’s question, that’s part of the issue about knowing, so let’s take The Firm, that’s a really good analogy. What the prosecutors really love about RICO is that it’s insanely vague and that means that they can threaten a lot of people in an organization with criminal activity and credibly bring charges and say, “So you did know that you’re a member of the organization?” And the organization, you would have to know that at somehow criminality is being… If you were just working in the accounting pool at a criminal law firm and you literally know nothing, technically that should not be illegal, but they can certainly threaten you very, very harshly and what they really want is the ability to threaten as many people with credible conviction possibilities to get testimony out of them, which is part of the problem with RICO and that comes up in your trial, that all the people who testified against him were given plea deals.

35:16 Peter Van Doren: Right, and the main component of the defense was that, that we shouldn’t trust any of what these folks say because they’ve all admitted to doing very bad things, and they were facing life and now they’re facing less than life, therefore everything they said was a lie.

35:33 Trevor Burrus: How did you feel about that?

35:35 Peter Van Doren: I don’t know. The testimony of all the witnesses, the gang members, was fairly consistent and we were told that they had not been in contact with each other, and so the story… But they did have rehearsals with the prosecutor, so they basically said that this defendant was a member of the gang and had done these things because he knew he hadn’t done a murder, because you need to do a murder in order to be elevated from a lower level status to a higher level of status and that’s what this thing in Fredrick was all about. And the defendant never testified. There were no defense witnesses. The defense rested after the prosecution rested. The only defense side we saw was the cross, right, the defense attorney crossing the prosecution witnesses, I.e. The other gang members.

36:34 Trevor Burrus: Well they, that testimony question is very very important and I guess, never having watched someone on trial and decided whether or not I believe them, but I would be… [chuckle] If someone said you could… “I’ll knock 20 years off of a 30-​year sentence for you to do something,” and I was already not a very upstanding citizen, I’m not sure why I wouldn’t just lie about it. And that does seem to be often the case, the jail house snitch problem is pretty bad. There’s been some pretty serious sentence reductions in these. And the irony is is that, if you’re a defense attorney and you offer to pay someone the value of 20 years of their life or 5 years of their life, to have them testify, you would be criminally prosecuted and disbarred immediately. But the prosecutors do it all the time.

37:24 Aaron Powell: Do you have any idea how much these sentences were reduced?

37:27 Peter Van Doren: Yes.

37:28 Aaron Powell: For testimony?

37:28 Peter Van Doren: Yes. They were, and in fact, the defense made a big deal about this, that basically they were, oh goodness, this is, you know, federal sentence guideline 44 down to level 36. And we were, you know, scratching our heads. Basically it seemed like, these were all men in their 20’s, right, and so they were, instead of facing life, they would be facing 20 or 25 years or something like that.

37:57 Aaron Powell: So that’s pretty substantial.

38:00 Peter Van Doren: But, then they would be deported back to, I mean, they were all illegal except one, they would all be then deported back to El Salvador and then killed if the gang was still… I mean, the weird thing is some of us wandered, “Do you really want to get out?” and then, “Yes.” And then would witness protection work, and is that credible? And all I know is what I see in the movies, which is sometimes it seems to work and sometimes it doesn’t and so I, I don’t… We didn’t have any independent empirical evidence about that. It was very weird, I mean in some sense it seemed like we were in a movie, but it was a very slow movie.

[chuckle]

38:39 Trevor Burrus: Did that surprise you at all, that you didn’t see anyone, saying, “I want the truth,” or this very clinical kind of questioning?

38:46 Peter Van Doren: No. That leads me to one of my other procedural observations which is, this trial I was in, even though the stakes were momentous was incredibly boring. We spent mountains and mountains and mountains of time on chain of evidence procedures, I.e. Plastic bags filled with gang hats and bullets and guns, and then the questions would be like, and I wrote, “Do you recognize this plastic bag?” “Yes.” “How do you recognize this plastic bag? Would you please open this plastic bag? What is in the plastic bag?”

39:21 Aaron Powell: This is all just teeing up appeal stuff, right? Like, they’re not expecting you the jury to go lean one way or another care much about that.

39:30 Trevor Burrus: Well, it’s just the prosecution, trying to avoid appeals stuff.

39:34 Aaron Powell: Right, Right. That’s right.

39:34 Trevor Burrus: Yeah.

39:35 Aaron Powell: So then you ask all that so then if he’s found guilty, the defense can say, “But wait a second, in this point, you didn’t ask. You asked that guy of the plastic bag and you asked that guy about the plastic bag. But you only asked like that guy about a bag. But maybe it wasn’t the plastic bag.”

39:50 Peter Van Doren: We didn’t, I didn’t. We didn’t realize all that, lawyers weren’t on the jury. We didn’t.

39:56 Trevor Burrus: Lawyers are never on the jury. [chuckle]

39:58 Peter Van Doren: Subsequent to being on it in my Cato seminar, the lawyers at Cato said exactly what you have said, which is the point of all this boredom is so that the prosecution messes up, so in effect the defense wants all of this because if someone messes up, then they can, perhaps…

40:16 Trevor Burrus: Oh, so it wasn’t the prosecution asking about the chain of evidence but it was the defense?

40:21 Peter Van Doren: Yes.

40:22 Trevor Burrus: Okay. Well, either way, ’cause the prosecutors can… They wanna make sure that’s good too. But I guess the defense would be asking that. Again, never having been at trial but only on appellate work, it makes sense.

40:32 Peter Van Doren: And my reaction to that is simply the two scandals I know of as a layperson reading the newspapers, are the Harris County, Texas, lab tech scandal, and the same in Massachusetts, where thousands and thousands of cases involved fraudulent plastic bags and/​or blood samples and/​or testimony about the chain of evidence and the accuracy of it. And my only feeling is that as a juror, the procedure I saw didn’t stop all this in Texas, in other words, this elaborate trying to make the person accused only responsible for things that are accurate and displayed and shown in public. I sort of get all that, but this procedure hasn’t stopped the two biggest scandals I know of in the US in recent history. And to me, it seemed like a waste of time and I wish the prosecution and defense could stipulate that we agree that all of these things exist and we’ll just focus our attention on other things we don’t agree on.

41:37 Trevor Burrus: They would never do that. Why would they stipulate to that?

41:40 Peter Van Doren: Every lawyer I’ve met has said exactly what you said, which is…

[chuckle]

41:44 Trevor Burrus: You stipulate to like, you know, January 28th was a Sunday, but if there’s any possibility that January 28th was not a Sunday, you do not stipulate to that.

41:51 Peter Van Doren: Well you’ll love this, which is there were two stipulations in the trial. And they were ironic or funny or something, which is, the witnesses were, you know, El Salvador immigrants with 6th and 7th grade educations, and the one witness, they kept having a dispute about whether he had a child or not, and it turns out he did, but he didn’t want people back in El Salvador, I.e. His other wife or something to know this, and so he testified, “No. I don’t have a son.” And then the next day we were quietly told that the defense and prosecution do stipulate that in fact the witness does have a child.

[laughter]

42:37 Peter Van Doren: The second, the second thing was, there’s this gang initiation ritual involving beating the initiate for 13 seconds, and so there was testimony about did the defendant beat up or witness someone else being beat up as a part of gang initiation. And they went through the count, and the prosecutor said, “One, two, three.” And then asked the witness, “How long was that?” and he goes, “Three minutes.” And then the prosecution goes, “One, two, three, four.” And he goes, “Five minutes.” And you realize he doesn’t now the difference between minutes and seconds.

[chuckle]

43:21 Trevor Burrus: Well, maybe it’s a language problem?

43:23 Peter Van Doren: No, this was all Spanish translation.

43:25 Trevor Burrus: Oh okay.

43:27 Peter Van Doren: The next day we were stipulated that the beating took 13 seconds, not 13 minutes and the witness does understand that. Those were the 2 stipulations. I said, “How come not other things?”

43:45 Aaron Powell: Did you get a sense, ’cause this was something that I noticed almost immediately in the trial that I was on, was that one of the sides, the sides kind of knew what their chances were. We knew that the prosecution knew that they didn’t have much of a case. You could just tell. Did you get a sense at all of whether one side…

44:05 Peter Van Doren: Well the defense was flailing and bringing up, she would ask, “How do you know that that’s your testimony?” “Well because my initials are… ” “Are you reading or are you recalling?”

44:20 Trevor Burrus: Those are all really important legal rules that I won’t get into, but whether or not you’re recalling something you said and like that matters in things that may be different kind of testimonies of maybe five years ago.

44:30 Peter Van Doren: Well all these murders are five years ago.

44:32 Trevor Burrus: Yeah, so you ask an officer to write down a statement and then you wanna be sure you can enter their statement into evidence possibly, or have them read it to the court and it needs very clear that they are reading it to the court. Or they are remembering, ’cause then you can attack their recollection or you can attack the provenance of the paper and there’s a bunch of rules around that that I won’t get into, but that’s why the law is boring.

44:54 Peter Van Doren: We didn’t understand, they did a lot of that, the defense attorney did.

45:02 Trevor Burrus: It’s interesting that that seems like flailing to you, when they are actually doing a good job. That would be making sure that you ask every witness that, “This is your statement, do you recognize this, do you recognize your signature, I’d like to submit to the court that this is this statement,” that kind of thing, that’s a good defense attorney.

45:22 Peter Van Doren: Let me get to the most substantively interesting thing, which I questioned during deliberations and we asked questions and then we were kind of left high and dry, which was, was this murder? And the defendant did not use the gun. Everyone admitted to that.

45:41 Aaron Powell: Just real quickly then, why are there questions, on the charge sheet, there are questions about whether he used a gun?

45:49 Peter Van Doren: No, not he, but whether a gun was used in this thing where he was present.

45:54 Trevor Burrus: And then stabbed the body.

45:54 Aaron Powell: Oh, use of a firearm in relation, was brandished during… So yeah, right it’s in a passive voice.

46:01 Peter Van Doren: The one thing we found him innocent on was brandishing a firearm.

46:06 Aaron Powell: Okay.

46:07 Peter Van Doren: And I raised, I said there was no testimony one way or the other about brandishing, and again I said to me brandishing is…

46:14 Trevor Burrus: Yeah, waving it in your face.

46:15 Peter Van Doren: You’re showing the gun to try to achieve something and A, it was dark, this was at night, and B, there was no testimony one way or the other about brandishing. All that was said was, the shooter, who is not here, and was deported, suddenly turned quickly, put a gun to the guy’s head and shot. Well that’s not brandishing is it? So, we found the defendant not guilty on the charge of brandishing, that was the only…

46:47 Trevor Burrus: So there was this question here, “How do you find the defendant as to the charge of use of a firearm during and in relation to a crime of violence in count four?” That there was literally no evidence and contradicted that he even had a firearm or used it to kill the guy, ’cause it was admitted that the shooter who was in El Salvador was the one who had the gun?

47:05 Peter Van Doren: It wasn’t that, just that no one, neither the shooter nor the defendant brandished. That was the basis of our thinking. And, again, Clark in the Cato seminar said, “Oh jurors feel bad about stuff, and they try to find something that they can do to help the defendant no matter how bad the defendant is, and you,” jury that I was on, “did exactly that, you found one thing.” And when we talked to the judge we asked, “Brandishing?” And we explained why we didn’t think that there was any evidence one way or the other about that, and we thought that was important. Oh he said, “Yeah, you know.”

47:44 Peter Van Doren: It was funny, I think, I’m not sure the judge was paying attention to the trial, he was writing all the time. He was just looking like he was doing homework. And, again, I’ve talked to lawyers at Cato since the end, and they’ve said, “Oh, you’re probably right. Judges are busy, they’ve got lots of stuff to do.” ‘Cause when objections were raised in things, sometimes he would go, “Oh, tell me what you were talking about and why you’re objecting?” And it’s like…

48:15 Aaron Powell: So how did they deal with this question of stabbing a guy 13 times after?

48:21 Peter Van Doren: The medical examiner for the State of Maryland or assistant medical examiner, whatever he was, he said his official finding was death by gunshot wound and stabbing. On cross, the defense attorney said, “If the gunshot had not occurred, it’s your testimony that none of the 12 stab wounds hit anything vital, correct?” And he said, “Correct, they did not.” “And it is your testimony that if the shooting had not occurred and only the stabbings had occurred and the defendant had received proper medical attention, the defendant would have survived? Or was it possible that the defendant could have survived?” And the medical examiner said, “Yes.” So in deliberations I said, “Well, what are we to make of this? So there’s an official finding by the medical examiner. And then on cross, there’s this admission that if some things had occurred… ”

49:25 Aaron Powell: So the gunshot wound itself was not then fatal, is what you’re saying?

49:28 Trevor Burrus: It was to his head.

49:28 Peter Van Doren: No, it was. But if the gunshot had not occurred would the stabbings, which is what the defendant was charged with directly.

49:36 Aaron Powell: But then even still, like I could… That doesn’t seem to get to the heart of the matter, which is, was he stabbing a guy who was already dead?

49:44 Trevor Burrus: Well, that’s the question he’s asking.

49:45 Aaron Powell: Right. But if the gunshot wound was fatal?

49:51 Peter Van Doren: The medical examiner didn’t wanna… In other words he’s not there at the time to diagnose brain death.

50:00 Trevor Burrus: The medical examiner would not be allowed to comment on that thing that he doesn’t have direct knowledge of.

50:03 Peter Van Doren: Because bleeding occurred subsequent to the gunshot wound. He said the heart was beating, which is why the wounds had this kind of blood and not that kind of blood. So you can’t say that the heart had stopped. Brain death is impossible to scientifically discuss ex post. So the question was… Unless you were there at the time and do an EEG. So the question was if the gunshot wound had not occurred, would the defendant have died from the stabbings alone if the victim had received medical attention?

50:44 Trevor Burrus: And what did you determine on that?

50:46 Peter Van Doren: Well, the medical examiner said, “Yes, that the victim could have survived the stabbings if he had received… ”

50:54 Trevor Burrus: Or how did that affect your deliberations? Did that mean you found…

50:56 Peter Van Doren: Well, I didn’t. In my notes I said the defense attorney wants us to say murder is not possible here, instead he should be charged with desecration of a corpse. And in fact, said that in closing. So we asked the judge what… We didn’t know the legal standing of what the medical examiner said in his official statement versus then what was stated in cross. Were they of equal legal value? Did we have the discretion to whatever? And what we got back was, “Please read the instructions.”

51:38 Trevor Burrus: That makes sense, frustrating. It reminds me though of a case where in law school, in criminal law, the question was based on one guy shooting a guy while in… Person A shooting person B while person C is there, and then person C waiting a few minutes and then going to get a gun and then also shooting the guy who had been shot. And the question was in that case, was whether or not he was still alive without any knowledge of whether or not person B was still alive. And did he intend to kill him? Or did he finish him off? Or did he just shoot a dead body for fun? And in that case they said there’s at least a reasonable doubt that the guy was dead and it’s okay. But it creates complex situations clearly.

52:28 Trevor Burrus: So what is your biggest takeaway from this experience, which I’m sure was fascinating? We wanted to bring you on to talk about that. We were joking even in the office about, “I would love to watch Peter Van Doren be on a jury, it would be really fun to watch.” And you’ve already described yourself as being the person demanding more than the other jurors.

52:47 Aaron Powell: Yeah, was it fun for the other jurors?

52:49 Peter Van Doren: Well, I did ask them. I did hold things up for two days, and they said, mostly the women on the jury said, “We appreciated all your thoughts and it was important to hear that.” The men seemed less interested.

53:16 Trevor Burrus: Do you have more respect for the criminal justice system, do you think? Or less? Or is it hard to categorize in such a way that it seems more random and unpredictable?

53:25 Peter Van Doren: Puzzled.

53:26 Trevor Burrus: Puzzled?

53:28 Peter Van Doren: I hope, I don’t know. I’ve told my story to a seminar in Cato colleagues now, and now the wider world in this podcast, and I don’t worry at night that I did the right thing by eventually deciding to convict, but sometimes I wonder could I imagine, again, what you’re taught as a kid, put yourself in someone’s shoes and would you wanna be treated that way? We’re all taught that this jury institution is seven or 800 years old and it’s an important part of western civilization. And that’s why we send people to fight wars and ’cause of jury system and declaration of independence and stuff like that. And so, I got to experience it, and in some ways it was an enormous expense of public resources to pursue what for most people would seem like the conviction of someone that obviously probably wasn’t up to much good.

54:24 Peter Van Doren: On the other hand, part of me wonders whether some of the concerns that I’ve raised today that I didn’t hold out long enough, or longer, or whether I should have pursued… It would have been a mistrial. I don’t think anybody would have changed their mind. And even if I had achieved that, would I have been doing good by that? Given that this appears to be, by all descriptions, a set of young men that were up to much, much mischief and mayhem and disrupting lots of other people’s lives, and we haven’t talked about… There was Facebook pictures and messaging after the fact. There was a year after these events before the defendant was actually arrested, and if he was trying to escape the gang and lay low and not brag about what happened, he was not doing a good job of it. So, I think that helped me also in effect, stop objecting, and go with what everyone else wanted to do.

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55:31 Trevor Burrus: Thanks for listening. Free Thoughts is produced by Tess Terrible. If you enjoyed Free Thoughts, please rate and review us on iTunes. To learn more, visit us on the web at www​.lib​er​tar​i​an​ism​.org.

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