Federal district judge Alvin Hellerstein was rightly outraged that a probation officer acting on behalf of the Bureau of Prisons had Michael Cohen arrested because he was writing a book about President Donald Trump and because Cohen would not agree to give up his First Amendment rights as part of his supervised release. The judge found that “the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others."
It is almost unheard of to see a federal judge get upset with a probation officer or the Bureau of Prisons. That’s because there is a fiction in the criminal justice system that a probation officer is an “arm of the court.” Criminal law practitioners, however, know the truth about probation officers — they often are advocates for the executive branch (prosecutors) and can push harder than even prosecutors do for draconian prison sentences.
Look at what happened with Cohen — he was arrested without approval from a judge and without his lawyers having the ability to argue his position with a judge before the arrest. And what was the supposed justification by the arresting officer? Cohen was “antagonistic” and did not want to sign a document outlining conditions of his ongoing release.
DOJ tried to come to the defense of the prison system and probation, arguing that Cohen’s lawyer was trying to “haggle” with the probation officer about wearing an ankle monitor. The judge made quick work of that argument: “What’s an attorney for if he is not going to negotiate an agreement with his client?”
You might be thinking that it is outrageous for a probation or prison officer to have this much power. If so, it’s even worse than you think. Although prosecutors and defense lawyers are not permitted to speak to the judge without the other side present, probation officers typically meet with judges alone, making their recommendations in secret without the parties getting a chance to be heard. And judges often defer to prison officials.
Monday, July 27, 2020
Federal judge rightly upset over wrongful jailing of Michael Cohen
That's the title of my latest piece in the Hill. Please click on the link for the whole article and let me know your thoughts. Here's the intro: