Two Stories About The Criminal Justice System And Consequences

Dateline, Washington D.C.: The Drug Enforcement Administration, pressed by Congress for answers about its treatment of Andrew Chong, has no answers to give.

I wrote about Andrew Chong before. He's the young man the DEA arrested in San Diego when they caught him smoking dope at a friend's house during a raid. DEA agents handcuffed him, locked him into a room, and left him there five days without food or water. He drank his own urine, eventually attempted suicide, and was close to death when he was discovered. He suffers from post traumatic stress disorder, not surprisingly. DEA agents claimed that he was left there through an oversight and that nobody could hear him shouting for help. An investigation determined that you could very clearly hear someone shouting for help from that room.

The consequences? Four written reprimands, a five-day suspension, and a seven-day suspension.

If I seize someone, handcuff them, lock them in a room, and leave them to die, I will suffer severe consequences. I will lose my job, especially if I acted while performing my duties. I will go to jail. I will suffer catastrophic personal financial losses. My name will be broadcast far and wide.

That's the difference between me and a federal employee.

The DEA agents who arrested Andrew Chong for smoking dope and left him to die got reprimands or suspensions that were shorter than my last tension headache. You and I — the taxpayers — paid Andrew Chong the $4.1 million settlement he secured; the agents did not. They are not named in any of the articles about the incident. They will not go to jail. They will not lose their jobs.

Free of significant consequence, they will continue to exercise their armed authority to inflict consequences on other people who break the law.

Dateline, Texas:

In 2013, Judge Susan Criss presided over the trial of Alisha Marie Drake, who stood accused of the horrific crime of videotaping the rape of a 14-month-old child. During jury selection, a Jehovah's Witness in the jury pool told Judge Criss that he would not view child pornography and that his religion did not allow him to judge others (an issue familiar to anyone who has ever encountered a Jehovah's Witness in a jury pool). Judge Criss berated the juror and belittled his religious beliefs:

So if it grosses you out, then you can take it out on the person in punishment because it can’t possibly gross you out more than it grossed out that child. So that’s what my God tells me.

Eventually Judge Criss ordered the prospective juror arrested:

Juror No. 48: Your Honor, I’m one of Jehovah’s Witnesses and I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else or to have, for that matter, for them to be – –

The Court: All right. I understand that. We have Jehovah’s Witnesses all the time. But you know what? If you get picked on this jury, you get picked on this jury, and Jehovah can visit you in the jail.

Juror No. 48: Okay. Then – –

The Court: Have a seat, sir.

Juror No. 48: I guess they have to visit me.

The Court: All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.

Judge Criss later explained to the thoroughly cowed jury pool that her experience as a sex crimes prosecutor — which she related in detail — taught her it was difficult to find willing jurors in sex crimes cases, and that she would not be excusing people. "And I'm not playing, and I don't care if anybody likes it or not."

Yesterday the Court of Appeals overturned the conviction. Even though Drake's appointed attorney did not bother to object to Judge Criss' actions, the court found that her comments about the case improperly conveyed her opinion of Drake's guilt, and that her arrest of the prospective juror deprived Drake of an impartial jury by intimidating jurors from confessing possible biases.

But the public opinion by the Court of Appeals did not name Judge Susan Criss. That's a matter of tradition and professional courtesy. You'd have to figure out her name by Googling the case, or by getting it from court records or from someone who knows.

Susan Criss is now in private practice, although she enjoys a public life commenting on her past cases. Criss is defiant about her actions in the Drake case. She won't face any State Bar proceeding. She won't face any consequences at all for her conduct.

These stories are not the exception. They are the rule. The rule is this: citizens generally face consequences for breaking the law and violating the rights of others, but those with the power to administer those laws and impose those consequences rarely face any themselves.

That's the justice system.

Last 5 posts by Ken White


  1. Mu says

    Immunity from prosecution and lawsuits seems to be the one dominant trait in all the recent issues from incompetence to outright criminal actions. Where does that immunity come from, and how can we change the relevant laws?

  2. Quiet Lurcker says

    @Mu …

    I suspect this trend – and I agree, it is a trend, and a disturbing one at that – is less about immunity and more about (perhaps too) close relationships within the justice system and reluctance to focus attention on the failings of the systems.

    Changing the laws is both simple and complex, but requires at least some minimal organization. For the simple part, demand that your elected leaders at all levels of government put in place laws against this kind of behavior. For the more complicated part, make it known to those same leaders that if action is not taken, and soon, they will lose votes, preferably in mass numbers. But that part of the program requires effort to get other people on board. Not an easy task, I can assure you.

  3. Nate says

    Wait, I thought that these were perfect examples of why we had a "legal" system instead of an actual justice system.

  4. sperel says

    Jehovah bailed him out. Put his house up as collateral, then the jerk skipped town.

  5. rw says

    You and I — the taxpayers — paid Andrew Chong the $4.1 million settlement he secured; the agents did not.

    Indeed. How about no suspensions or reprimands and a judgment against those involved for the $4.1 million (jointly and severally liable). Even better, everyone up the direct chain of command is proportionately liable according to some formula. Maybe let the Sentencing Guidelines folks come up with that. You can dream, right?

  6. says

    No, that's the legal system. That's not a "justice" system.

    And, if people no longer believe that our legal system dispenses justice, then they may wind up resorting to an "alternative" justice system. One that involves lampposts and boiled rope.

    Now, that wouldn't be "legal." But it just might be "justice."

  7. Eric the Fruit Bat says

    Seems like to me the whole issue of limited and absolute immunity to the agents of the government needs to be rethought when it comes to the judicial process. Between that, and after seeing Petreaus essentially walk on his charges (especially on 18 USC 1001, where lesser mortals would have done time at Club Fed) tells me that each sentence needs to be reviewed automatically at the appellant level-and the most egregiously bad results need to not only be reversed, but have an equally egregiously penalty applied to those who issued the first ruling as a warning to the next ten generations that some decisions come at too high a price.

    And the Texas Court of Appeals shows just how much they are part of the problem as well with their 'deferential' hiding the identity of 'one of their own' when it comes to skeevy behavior under the name of 'justice'. But since she high-talied into private practice before she could even face a judicial tenure commission, I guess we're all stuck with Shakespear's infamous quote: "The first thing we do, let's kill all the lawyers."-but just make sure you got all your legal affairs in order first.

  8. Wyrm says

    "Vigilante justice" is no more "justice" than a broken "legal justice".
    But it's true that the "legal" system will only work as long as people allow it to.
    When they really lose faith in it, they might take it into their own hands, as dangerous as that might be.
    If you want true Justice, you need simple and easy-to-understand rules, as well as a trustworthy process to sanction violators.
    Rules nowadays tend to be too complex, sometimes downright obscure, and the rise of "secret" procedures, judges and trials break the bond of trust between people and their legal system.
    With the fact that the ones in charge of enforcing the rules tend to avoid being subjected to the same rules, you just can't have trust anymore
    There aren't two ways to fix it: make sure everyone is truly "equal in rights". Make enforcers accountable for their mistakes and abuses in the exact same way everyone else is.

    They might require some guarantee that the process will not be abused in turn to force them into unfair decisions, but the quasi-impunity they have now breaks the foundation of trust that the system requires.

  9. Kratoklastes says

    If you want to make a good or service lower-qualilty and more expensive, you allow it to be a monopoly. In fact the overwhelming bulk of monopolies only exist because of government-enshrined, but de facto non-existent, 'rights': licensure, IP and other deliberately-restrictive practises. (Licensure is a pet hate of mine, which is why I refer to Bar Associations as Lawyers' Unions, and the AMA as the Doctors' Union).

    The monopoly status of .gov jurisprudence (i.e., jurisprudence with teeth) sees to it that the wrong sorts of people become judges. The more powerful the court, the worse the type of individual that wants that fucking seat (yes, I'm looking at Alito, Roberts, Gonzales, Kagan, and that Opus Dei whackball Scalia). From .gov's point of view, it's a feature, not a bug.

    Again I assert that Acton's aphorism about power was one of the most masterful misdirections in history: "power tends to corrupt"? Nope… the already-corrupt are attracted to power.

  10. John Barleycorn says

    Hey now!

    A millennial states attorney from Maryland named Marilyn might just start a new fad amongst prosecutors on one of these fronts.

    The other front is a bit more tricky. The criminal defense bar is just gonna have to get over it and show some love and step up with a few more public displays of affection for their favorite judges.

    This in and of itself is sure to make some of them mean old nasty judges feel all that "love" out there in the air and reciprocate with some unconditional love of their own for blind justice wouldn't-ya-think?

    If none of that all works out the small "a" anarchists are currently polling at .000015% in Gallup's recent poll of the most likely party to control congress in 2028.

  11. Ryan B says

    Ken – forgive me for posting this here. I can't find an email address for you (I'm sure my fault, not yours).

    I just read your anatomy of a scam series, and am curious if anything more has come of the David Bell/UST story in the 3 years since you last wrote about it?

  12. jdgalt says

    If we can't strip this double standard from the system, then burn it to the ground.

  13. barry says

    What happens if a potential juror says "I will sit on your jury if I must, but my belief will prevent me from deciding on a verdict"? The most patient god wins?

  14. Jack says

    I know the professional codes of conduct differ by jurisdiction, but is there an issue here with a former judge commenting on past cases, and especially in past litigants?

  15. Scott says

    What about requiring any LEO to carry a personal liability bond or insurance, with the very clear intent that failure to secure such a bond is an automatic barrier to holding a sworn position? The result being that civil judgements are at least partially paid out by the insurer rather than the agency/municipality, there is a clear and personal impact on the offending officer's finances via increased premiums (note: in my head the unions are explicitly prohibited from covering any portion of officers' premiums), and the "few" bad apples, once identified by actuaries and underwriters, find themselves uninsurable and subsequently unemployable in law enforcement.

  16. Dragonmum says

    @Kratoklastes –

    (Licensure is a pet hate of mine, which is why I refer to Bar Associations as Lawyers' Unions, and the AMA as the Doctors' Union).

    Although vile, the AMA isn't a licensing agency. It's a voluntary "professional" association that acts as a lobbying body and general loud-mouthed nusance. It speaks for Drs the same way AARP speaks for retired people – not for most of them and mainly the rich ones. State Medical Boards govern doctors' licenses (not accordingly) – and they are creatures that make the AMA look like a basket of kittens in comparison. I believe the one that resides on NC was created by The Great Old Ones.

  17. Noscitur a sociis says

    To all those who agree that the government should be arresting drug dealers and having judges preside over child pornography trials: what do you think the correct result should be in cases of official misconduct like these?

  18. Quiet Lurcker says

    >>what do you think the correct result should be in cases of official misconduct like these?

    The person responsible for the misconduct should be held to account by means external to the government, law enforcement, *and* the legal community (meaning if you, someone you know, or someone you are related to is involved in any of those professions, even peripherally you're disqualified) and not subject to review by any other entity.

  19. Toastrider says

    Eh, this is kind of a mixed bag for me.

    The first one, clearly, should've ended with 'and all the agents involved went to federal prison to break rocks for a while'. But that's what we've gotten with unlimited immunity from circumstances. And why I suspect one of these days, some rogue prosecutor or law-enforcement zealot's going to catch a surprise bullet.

    The second one… well, that one to me is a little more nuanced. Yes, Judge Criss shot her mouth off, and it sure as hell looks like she skewed things. But this Jehovah's Witness looks like a complete toolbox just from the quotes.

    "Your Honor, I’m one of Jehovah’s Witnesses and I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else.."

    Really, dude? I'm sorry, this looks like an attempt to avoid 'icky stuff' or maybe show off your religion on your sleeve. To the judge. In their courtroom.

  20. Griffin3 says

    Please add a "nutpunch" category to your blog, to mark articles that should not be read without protective gear. Or before breakfast.

  21. SumDood says

    Jehovah's Witnesses bother people on the weekends when they are trying to eat breakfast & relax.

    And, Jehovah's Witnesses oppose gay marriage.

    But apparently, in the contest of "which offends Ken White more?", blowhard judges win.

  22. anne mouse says

    Yeah, my initial reaction was a lot like Toastrider's. Sure the judge was intemperate and I'm willing to believe the jury was biased as a result, but locking somebody up for refusing jury duty doesn't exactly shock my conscience (and stating that the reason is that they think an invisible man in the sky wants them to act this way, doesn't win any sympathy from me). Then I looked up my state's laws on jury duty: failure to attend is a fine of not more than $40, there's a very long list of people who are exempt ( firemen, clergy of a few particular sects (!!), practically anybody involved in government including teachers at public schools and nurses at public hospitals), and there's a specific provision where anybody can excuse himself from certain cases including child rape, just by claiming that hearing the testimony would "embarrass" him. I don't have time to find Texas' list of exemptions, but it might be useful in understanding whether and how far this judge's actions were inconsistent with the law.

  23. albert says

    "…Jehovah's Witnesses oppose gay marriage….".
    JWs don't _condone_ things like gay sex/marriage, abortion, smoking, drugs, and other 'worldly' activities.
    JWs are apolitical, hence their refusal to serve on juries, in the military, pledging allegiance to a gov't (Hitler really hated them for that), etc. They observe all laws that don't conflict with their strict bible interpretation. They pay taxes. Being apolitical means they don't actively 'oppose' anything; they choose not to participate in such activities, except for proselytizing. The distinction is a fine one, but important nonetheless.

  24. Noscitur a sociis says

    "The person responsible for the misconduct should be held to account by means external to the government, law enforcement, *and* the legal community (meaning if you, someone you know, or someone you are related to is involved in any of those professions, even peripherally you're disqualified) and not subject to review by any other entity."

    Anyone interested in giving a serious answer?

  25. Ryan says

    One solution is to try treating people like human beings. The judge could have given a fair trial by simply saying, "I understand you may have issue or disgust at the case, but I'd like to have this case proceed to trial with a jury seated", and by having a thirty second Socratic debate on theology. Who knows. Maybe the person lied to the judge, and is deserving of spending some time behind bars.

    And the defendent's attorney should have objected to the Judge's remarks.

    Although anyone stupid enough to videotape a crime is impossible to defend.

  26. Jordan says

    Jehovah's Witnesses bother people on the weekends when they are trying to eat breakfast & relax.

    And, Jehovah's Witnesses oppose gay marriage.

    But apparently, in the contest of "which offends Ken White more?", blowhard judges win.

    Probably because blowhard judges wield state violence. I find being locked in a cage to be a lot more problematic than having my weekend interrupted.

  27. TimL says

    But apparently, in the contest of "which offends Ken White more?", blowhard judges win.

    Advice: Don't be a dick.

    Not to imply anything that Ken thinks, but I'm guessing that he finds various people annoying (e.g., me, you, Jehovah's witnesses, etc) but doesn't blog about that.

    The point of the article (and numerous previous ones) is that we should hold people in authority (judges, police officers, etc) to a higher standard, not the lower one that we seem to apply.

    How do you miss that?

  28. albert says

    "…But this Jehovah's Witness looks like a complete toolbox just from the quotes…."
    The only toolbox in the room was the judge. The statements of the prospective juror are consistent with JWs beliefs, for all members. It has nothing to do with trying to avoid jury duty; there are plenty of easier, slicker ways of doing that.
    It's not up to the judge to debate someone's religion. JWs ALL believe in not judging people. It's too bad they're litigious asshats. This kind of BS treatment would stop after a few court cases.

  29. albert says

    " It's too bad they're litigious asshats." should be: " It's too bad they're NOT litigious asshats."
    My apologies to the JWs (all of whom likely do not read this blog)

  30. Patrick says

    Was the judge grievanced or otherwise subjected to discipline from the bar? Seems a viable case for it.

  31. hamjudo says

    @Noscitur a sociis wrote:

    what do you think the correct result should be in cases of official misconduct like these?

    The special prosecutor laws at the Federal level were created to deal with some kinds of official misconduct. Likewise, a wee tiny percentage of cases are handled in distant courts to avoid acknowledged or suspected bias. In some states, some types of investigations of local official misconduct will automatically be investigated by state police.

    None of those are available options except in extreme situations. Laws need to be written to make these options more widely available and used.

    Anyone interested in giving a serious answer?

    The above was the best I could do. Below is my fantasy answer:

    I would like new laws to be written and passed that would set requirements for which agencies and courts would be responsible for investigation, prosecution, and hearing cases involving official misconduct. In particular, in my fantasy, police agencies at all levels would be required to bring in independent police agencies to investigate deaths and improper imprisonments. Clearly a fantasy.

  32. SumDood says


    Interesting theory you have there, holding officials accountable.

    Given Ken's documented bias towards approving of gay marriage (which is a perfectly ok view to take, as long as you don't try to act like it is a factual or normal view to have), would Ken's scorn for officials that run roughshod over the democratic process to ram gay marriage down everyone's throats be as vigorous and frequent as his words for the official described in this post?

    Or would he, maybe, not be so vocal about their abuses, since they are parroting his views?

    I admire many of Ken's actions. He has gone above and beyond what most people would do to protect and advance First Amendment rights, and for no personal gain.

    But he seems to be less than consistent in his defense of the First Amendment when the topic of gay marriage is the issue at hand.

    That's his right. No one is perfect. I don't demand that he change. But let's not avoid or conceal the truth. It's a bias.

  33. Makewi says

    At a start if we removed the ability for officials to detain or arrest individuals for drug consumption in private spaces, we would remove the ability for agents such as those in the first case from even pretending they had a right to handcuff Andrew in the first place.

  34. Mcb says

    If gay people get married then we will all be unable to speak. Or something.

  35. OrderoftheQuaff says

    There is no such thing as objective justice, because there is no such thing as objective reality. The photon that bounced off the object, enabling you to see it, changed it so that it is no longer what you see. There is only a simulacrum of reality sufficiently common that we can usually agree on what color the stoplights are at the intersection we're approaching.

  36. Czernobog says

    I think he's saying that having things rammed down his throat by gay people is an attempt to silence him.

  37. neverjaunty says

    Well, that's fair. It's hard to blather when somebody is ramming things down your throat.

    @Erbo, you are, I hope, aware that the US has a long tradition of citizens relying on trees and rope as a shortcut to the justice system, and it's not a tradition that involves overthrowing tyranny. Kind of the opposite.

  38. Quite Possibly A Cat says

    "It's not quite clear to me how you are connecting the First Amendment with gay marriage."

    Marriage is a sacred religious tradition and thus should be free of government interference! Its Adam and Eve, not Adam, the government pencil pusher Steve, and Eve! Stop the government from (continuing to) ruin marriage! I'm not even sure how we got on this topic. [/derail]

    I think the problems are two fold: a) we don't have a system for private prosecutions, but that immediately brings up a second problem b) We can't have private prosecutions because that power would be spectacularly abused within seconds of becoming law.

  39. Seth says

    Is there a reason you didn't post the names of the criminal DEA agents?

    Even if the courts don't punish them, their careers can be damaged by their participation in this becoming known so that any time they attempt to testify in the future, they can be asked about this in order to damage their credibility.

  40. says

    The thing with Susan Criss, isn't that a classic First Amendment violation? I'm specifically thinking about the bit where it says that the state shan't impose any religion (or lack thereof) on anybody.

  41. says

    @ Quite Possibly a Cat: You are homophobic, sir(?). Please don't bother to visit the UK, there's no free speech here and your words are a violation of the Equality Act 2010. Besides, a TSA agent of the same sex will finger fuck you before you get on the plane out and when you arrive back in the US. :D

  42. says

    @ SumDood: Homosexuality is found in over 450 species, homophobia is found in only one. Which do you think is the most unnatural? On top of which, marriage is a relatively recent thing that didn't exist when any part of the Bible was written, so you can't claim it's 'in the Bible' either. :p

  43. Seth says

    @ Sheogorath: Which bible was written before marriage? Apparently not the one in which Noah had a wife and children, nor the one in which Abraham was married to Sarah, . . .

  44. Seth says

    @ Sheogorath: The original was Hebrew. There are many rules in the Bible relating to marriage, divorce, widowhood, etc.

  45. Bjorn says

    @Sheogorath, no, the original OT was in Hebrew. Aramaic was used later. While the current Hebrew text (the Masoretic Text or MT) used by Jews in religious services is undoubtedly not a perfect copy of the original text (assuming there was only one version to begin with, which is not a certainty), it's definitely closer to the original than any of the Aramaic translations that were introduced later, after Aramaic became the vernacular language of the Middle East. Of course, this only applies to earlier works like the Torah/Pentateuch, not much later ones like Daniel, which has portions written in Aramaic.

  46. says

    @ Bjorn: Well, there still wasn't the word wife back then since proto-Germanic languages definitely weren't used in the first Bible, and there wasn't any marriage ceremony, so the point I was originally making still stands. :p

  47. Seth says

    There was definitely a marriage ceremony; look up, e.g., Jacob and Leah.

    Whether or not an English word was used in the Hebrew Torah has nothing to do with whether or not the concept existed.

  48. says

    Oh, right. I never before realised that sending your daughter to the man she's expected to spend the rest of her life with constitutes a ceremony in a religious establishment. You taught me something new! *rolls eyes*