Greetings & Good hello. Let’s talk about the “adversarial process”, a hallmark and cornerstone of the American legal system. The story goes like this: The courtroom is a neutral, fair, and impartial wonderland ruled by a wise, honest, and nearly all powerful judge. In the courtroom two contestants, our adversaries, meet. One, the prosecutor, stands in place of the state, or “the people”, and accuses a defendant of crimes. The other adversary is either (a) the defendant themself, or, more commonly, (b) “defense counsel” which “represents” the defendant. The choice of (b) is seen as fair as it allows the defendant to “level up” their game, so that the two contestants before the judge are equally matched in terms of skill and experience with the rules of the contest (court procedure, matters of law, techniques of argument, etc.) The battle commences, and if needed, questions of fact are determined by a panel of independent observers – the jury. The jury is only needed if a case reaches an impasse where it can not be resolved except by open, adversarial dispute. This is the theory – and it sounds good. Here is a diagram:
Now, the problem arises when reality sets in and we realize that the officers of the court have close working relationships over many years. Defendants come and go, they are grist for the mill – cud to be chewed and processed, but a solid relationship between officers of the court is critical, each in its own way. I am not hinting about flagrant ethical conflicts or illegal conduct, I am merely talking about the disposition to believe, endorse, support, or promote ideas and arguments from each other – or, in the case of a fractured relationship, the opposite, to disbelieve, suspect, reject, or undermine the other as a matter of reflex. For example, I observed AUSA (Assistant United States Attorney) Nick Radisi claim my daughter was Thai and lived in Thailand when she, in fact, is an American and lived in Texas – a matter deeply relevant to the case, but which Nick found “inconvenient”. Nick is the kind of officer of the court who lies when it is in his interest to do so – a man of no integrity. If you work with this man, as a judge or defense counsel, and know that he can not be trusted, then it will influence your engagements with him. Presumably some officers of the court subscribe to a level of integrity greater than Nicks’s – we can only hope.
In navigating this complex landscape of human reality, officers of the court – who, within any district form a small fraternity, must tend to their behavior, reputations, and relationships. They have no such incentive with regards to any particular defendant. Defendants show up in a never-ending flow of guilty parties caught in an act, waiting for “justice” to be performed upon them. Defendants are the disposable elements of the legal system, coal to fuel the fires of judicial righteousness. It is into this mix we add the disturbing fact that defense counsel has no obligation to pay attention, at all, to the defendant. It is wholly up to defense counsel’s whim whether or not to even bother talking to the defendant except as regards the key decisions of the process. The defendant can decide to go to trial or accept a plea, or can fire the defense counsel – but outside of this sort of gross decision, the defendant has no rights and need not even be present, save to preserve appearances.
This has a subtle effect on our diagram:
The actual adversarial line is between the defendant and the court – the true role of defense counsel is to represent the prosecutor to the defendant and to push the prosecutor’s theory of events on the defendant. This is done while protecting the court’s appearance of neutrality by maintaining what is known as a “clear court record”. The clear court record is the official record of events available to public scrutiny – it is “what happened”, excluding any unrecorded conversations between the defense counsel and prosecutor or between the trio. In the clear court record the defense counsel can speak either for itself or can impersonate the defendant, having blanket authority to do so. In other words, defense counsel can submit, to the court, that “the defendant, by and through counsel, …” without any specific knowledge of the defendant. The defendant’s only official access to what they themselves have said is the clear court record. Should the defendant write directly to the court record, the defendant should expect retaliation for threatening the facade.
This is exactly what happened to me in November/December of 2023. I had grown frustrated being completely sidelined and warehoused by my defense counsel – after 6 months of detention my counsel had not followed any direction of mine, nor had he asked a single question about my case. Furthermore, I had caught him in various small lies, deceptions, and dubious ethical acts. I instructed him to cease his ambush-style, unrecorded, unauditable meetings in the detention center and deal with me by mail. I communicated my concerns directly to the court and sought a delay so that I could assemble evidence of his misbehavior, as well as attend to a misbehaving sheriff. When I refused counsel’s next ambush, citing my prior instruction, counsel reported that I simply refused to meet – omitting the detail about my prior instructions.
At the hearing which I sought to delay, the trio of officers of the court emerged from an unrecorded chambers meeting and proceeded to execute a dance to “clear up the record” from my unwanted intrusion. My counsel did resign (which I had also requested for two months) but, as punishment for my intrusion upon the record I was scheduled for a punitive psychiatric evaluation, on the basis that my refusal to trust counsel was a sign of paranoia and incompetence to participate in my own defense. The punishment for attempting to have a voice in one’s own defense is to be stripped of that voice completely. The message was clear – be silent, and let justice be performed upon you. This is, literally, what the judge had instructed me at my detention hearing – and it turns out, they really mean it. In America’s court, the defendant has no place.
I was fortunate that my substitute counsel, assigned by the court, was able to block the psychiatric evaluation order – and that will make another story, as the Marshals, once again, medically futzed the proceedings and I was forced to perform at a significant handicap. Criticism of our perfectly functioning institutions, however, is also not allowed.
Lest we think that my perspective on the adversarial line between defendant and counsel reflects one bad experience with one bad attorney, I can say that it has played out in the other cases I have encountered, and it is manifest in my relationship with my 2nd attorney, albeit to a lesser extent. Let’s talk about some other cases next – to get some perspective. I’ll draw generically on cases I got to know during my six months at Onslow County Detention Center, all falling into the “got caught”, some of dubious innocence, and one that is a clear example of a systemic failing.
The first category, the “got caught” category, is just that – someone got caught. In those situations the police and prosecution pile on as much as they can, much of it dubious, and the defense counsel shakes a bunch off. The two come to an agreement and the defendant is pulled out of storage, notified of the result, and justice is performed upon them. This is part of the cycle where “doing time” is just a rite of passage – it has zero deterrent value and, indeed, is required for career advancement. It is a pointless waste of social resources. This is what the American legal system is best suited for and where it really shines. Defense counsel/defendant contact is not really needed – there is very little question of fundamental guilt. For example, a twenty-something gets caught with a bag of meth and a gun in his pants, clearly tweaking – so the sentence hinges on how many grams, proper licensing of the weapon, execution of the blood test, etc. This seems to be the most common.
The second category is where the evidence is sketchy – for example, some good ole boys overdose and one dies while out partying. A black guy gets blamed for selling so the trail starts getting constructed. Now, at this point, after months in jail, the defendant is asking “can’t we get the video footage of that night?” and “why is the witness giving three different versions of the story in exchange for immunity?” which, if you think about it, are pretty good questions. This is where the adversarial line starts to show up. The prosecution does not want exculpatory video footage and wants to suppress all but one version of the witness testimony. This is where you start to see a difference between a lawyer who is out to “fight the prosecution” and one that is effectively working to negotiate with the defendant on the prosecution’s behalf. The former would be leading the charge to demand the video footage or impeach the witness, the latter would (and does) make excuses about procedure, play hard-to-get on the phone, or any number of other games designed to motivate the defendant into a “plea posture”.
The third, and most egregious category, is where the defense counsel is openly hostile to the defendant. This case, with which I became intimately familiar, has resulted, at the time of writing, in seven years of pre-trial detention as the defendant battles defense counsel for the right to include “self-defense” as a possible jury instruction at his trial. At first glance you wonder how, even after three changes of counsel, this could remain an issue – until you look closely at the evidence and realize that a “plea” is required in order to cover up police and court crimes. The mishandling of the case was so severe that each public defender brought into the fold has had to make the choice between ending their career in that district by bucking the entire court and law enforcement establishment, or trying to get a black man in the south to accept an unfair plea. You do the math on that one. Or look up the case of Travares Waters in Onslow County. I have seen the evidence of police evidence mishandling, botched investigation, blatant lies to the press, fraudulent documents in court, and a culture of good ole boys protecting their own. Onslow county is a blight on law enforcement and judicial integrity – or, perhaps, that’s just the way America works these days.
In my case, with my new counsel, the adversarial line is not yet bitter – but it is present. My first challenge is to “win my case” to my counsel, who is fighting for the prosecution. We are allowed 1.5 hours a week of contact, so I have about 9 hours in order to decide if I accept a plea and/or prepare for trial. We are half way through that and I finally was able to get counsel to respond to the first piece of exculpatory evidence in my case. That is 8 months of effort for me to get my defense lawyer to hear, for the first time, that there was more the story than what the prosecutor was presenting.
For most of these 8 months I have been trying to hire a fiduciary lawyer who answers only to me and serves as my agent in the world. I imagine this lawyer could collect the evidence I have and help me present my case – to my defense counsel, so that I can win my defense counsel away from the prosecution’s side and onto my side. At this point it certainly feels like the pressure is coming from all sides to “just accept the plea” – regardless of consequences, without question, without negotiation, and without understanding. To be certain, in the “clear court record” defense counsel has impersonated me as saying simply that I need more time to decide – there is nothing about the fact that I am primarily struggling under the limitation of a 1.5 hour/week communication limit and an otherwise complete blackout of information required to make an informed decision. Without the constraints of detention, I would likely be able to resolve all my concerns in 1-2 weeks, including winning over (or not) my defense counsel. However, hobbled as I am, the likelihood is high that the court will force a trial or declare me mentally defective due to my inability to win my case, sans evidence and sans counsel, against the adversary that is my defense counsel.
I am fortunate that I have such a highly engaged defense attorney. My situation is unique in that my counsel is meeting with me at this incredibly high rate. Still, due to the characteristics of my life, being somewhat unconventional relative to the norms for which the court is optimized, I am drowning in a backlog of unanswered questions. For example, if I accept the plea, would I ever be able to go home or re-unite with my family? It took 6 hours to maneuver my defense counsel, being American and thus unfamiliar with matters international, into position to even understand the question. Since my family is split nationality and since it deals with extreme MAGA racism in the State Department, as well as foreign governments and residency visas, the effects of accepting the plea are not at all clear. I desperately need fiduciary representation in addition to this officer of the court tasked with maintaining a clear court record and protecting the image of the court above all else.
The court considers my desire to thoroughly understand my options a sign of mental defect and an offense to the efficient and proper operation of the court. As counsel has threatened me “the court has ways of getting where it needs to be” – and this includes, apparently weaponizing court procedure and utilizing psychiatric political re-education. Considering that I have already been chastised for daring to try to have a “counseled voice” in my own defense, I believe I am rightfully terrified of the risk of not simply signing the plea without proper consideration. Perhaps giving up on my thoughts of justice and self-defense, perhaps just agreeing to wipe the government’s threats and torture under the rug is the best option. Maybe, realistically, we must accept one law for those who hold power and one law for those over whom power is held. If America does it, it is certain to be the best way to live.
Eric Charles Welton
Prisoner #94911
Columbus County Detention Center
February 15, 2024