On September 23, 2013, famed defense counsel and Abu Ghraib whistleblower Paul Bergrin was sentenced to multiple life terms as a result of his conviction on murder conspiracy, narcotics distribution and other charges. Bergrin, 57, had represented numerous high profile clients, but is arguably best known for his activities in Iraq where as a JAG lawyer he was one of the first people to expose the systematic torture and human rights abuses at the notorious Abu Ghraib prison.
Former high profile defense counsel Paul Bergrin was tried and sentenced in response to his whistleblowing at Iraq's notorious Abu Ghraib.
Bergrin's trial perhaps best stands for the proposition that the current U.S. regime does not take embarrassment lightly. It is an era in which a heralded whistleblower like Daniel Ellsberg would have likely found himself indefinitely detained as a result of his heroic efforts, precisely what Bergrin was facing. The sentencing hearing was conducted by USDJ Dennis Cavanaugh, installed to oversee the case after Bergrin's original trial judge, USDJ William J. Martini, was removed by the Third Circuit Court of Appeals for failing to conduct Bergrin's original trial in a manner satisfactory to the government.
The first trial, overseen by Martini, ended with a hung jury. Martini quipped afterwards that had he been on the jury, he would have voted for acquittal. The government immediately sought and ultimately received an order of recusal and had Cavanaugh, a reliably pro-government jurist, installed to oversee the retrial. From that point on the trial's outcome was a foregone conclusion and Bergrin was hastily convicted on all 23 counts for which he was tried.
USDJ William Martini was forcibly removed from Bergrin's criminal proceedings after repeated complaints from government prosecutors.
Previous articles on Bergrin's trial may be seen here:
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As described in the previous articles, Bergrin's trial was a government staged charade, a parade of perjurious witnesses who were well-compensated for their testimony. The government's case against Bergrin centered on the improbable notion that one of New Jersey's top criminal lawyers was actually using his law firm to plan murders and distribute narcotics. Every one of the government's witnesses were caught in numerous and sometimes comical lies, but there is no humor in the tragic outcome of this travesty.
As the defense sought to mitigate the damage, Bergrin's military service, which arguably was the impetus behind the government's zeal to exact retribution, was again an issue at sentencing. The federal sentencing guidelines allow for a downward departure for military service, but Cavanaugh refused to sentence Bergrin accordingly. Despite numerous tours of duty in Iraq, Cavanaugh stated that "nothing in the record distinguishes his military service." He continued "(It) does not rise to the level the sentencing manual suggests. Accordingly, I'm going to deny such consideration."
Lead prosecutor AUSA John Gay was determined to see Cavanaugh inflict the maximum level of harm upon Bergrin and launched into several arguments about why multiple life terms were warranted. Perhaps most absurd was his claim that Bergrin "woke up every morning trying to beat the system." Gay essentially argued that Bergrin's practice was akin to a crime family posing as a law firm. In support of this bald assertion, Gay claimed that "80% of his (Bergrin's) cases were representing gangs." He continued, "The purpose of his enterprise was to rig the system so guilty people could escape justice and commit more crimes."
Bergrin was among the first people to disclose the systematic human rights abuses at Abu Ghraib.
Gay's pathological comments reveal, among other things, a deep disdain for the rights of the accused. The idea that Bergrin should be punished because of the government's disapproval of his clients' activities is wrong on so many levels that it defies explanation. Gay's logic would impute liability to lawyers for any future offense an acquitted client might commit. Furthermore, Gay seems to be claiming that gang members and by extension other unpopular clients are not deserving of the zealous legal representation guaranteed by the U.S. Constitution's Sixth Amendment. Gay's enigmatic disapproval of lawyers like Bergrin aiding "guilty people" succinctly sums up a pathology that has become ubiquitous in U.S. attorney's offices throughout the country.
The Newark U.S. attorney's office has long been known as a hotbed for rampant prosecutorial abuse, spawning the likes of Michael Chertoff, Sam Alito and most recently Chris Christie.
Bergrin had represented himself at trial with Lawrence Lustberg serving as standby counsel, but it was Lustberg who handled the sentencing hearing for the defense. Lustberg made repeated attempts to have Bergrin sentenced to less than the multiple life terms sought by the government, but the predetermined nature of the hearing created a palpable sense of futility. The arguments asserted by the defense mostly centered on Bergrin's charitable work in the community, the idea that an excessive sentence was not needed for a first time offender with his background and the fact that Bergrin had been stripped of everything and thus already significantly punished. The defense was handcuffed by the fact that Bergrin's case was headed for appellate review and guilt could not be acknowledged, thus eliminating any meaningful element of contrition from the defense's argument. Much like the repressive Soviet system described by Aleksandr Solzhenitsyn, mercy cannot be sought in federal court until guilt is admitted.
Aleksandr Solzhenitsyn recognized the prosecutorial excesses of America when he said, "I have spent all my life under a Communist regime, and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale but the legal one is not quite worthy of man either"
The most interesting part of the sentencing hearing began when Bergrin rose and addressed the court. Bergrin, wearing prison garb with a chain around his waist, was flanked by several U.S. marshals. Cavanaugh appeared intent as Bergrin began his lengthy sentencing speech.
"Your honor, I am here as a man who has been thoroughly humbled," Bergrin began. He continued with an explanation of how he had been incarcerated for the last four years and has literally "lost everything." He cited the loss of his mother while he was in custody and the inability to attend her funeral and pay his last respects.
Bergrin, clearly annoyed with the prosecution's claim that he spent every day trying to beat the system, carefully explained his previous work as a homicide prosecutor and AUSA. He described his "tireless work on behalf of victims" and commitment to the ideals of justice. He further told the court "I've handled thousands of clients, hundreds of trials. I represented police unions and never once was there an allegation that anything was done improperly."
Bergrin next went on to talk about his devotion to his family saying, "I love my children as much as a father can love his children." He described the pain he felt every day knowing that he would not be able to play a meaningful role in the lives of his four children and three grandchildren. "I know I will not be a father who is there for them."
As Bergrin continued to speak he took on a more confident tone and went on the offensive, refuting the charges for which he had been convicted. He focused on the alleged conspiracy involving the death of drug dealer and federal witness Deshawn "Kemo" McCray. Bergrin looked squarely at Cavanaugh and said in a strong and confident voice, "I had nothing to do with the death of Kemo McCray. Totally false, totally fictitious, never happened. I hold my head high. I'm ashamed. I'm embarrassed. I'm humiliated. But I'm not broken. I'll go to my grave saying I had nothing to do with the death of Deshawn McCray." He then reminded the court of his request that Anthony Young, the alleged shooter who testified as to Bergrin's involvement in the murder, take a lie detector test along with his own willingness to submit to one. "The request was rejected and refused," advised Bergrin.
Federal informant Deshawn "Kemo" McCray was gunned down on a Newark street, but there was a stunning paucity of evidence linking Bergrin to the crime .
Bergrin then urged the court to question various witnesses about his supposed involvement in the crimes for which he had been convicted. "Ask them, did Paul Bergrin know you were dealing drugs?" Cavanaugh, appearing to be uncomfortable, looked away as Bergrin said, "Ask these questions and you will see a pattern in this case."
Gaining momentum, Bergrin then told the court about how he lost a sister due to HIV transmitted through intravenous drug use and that he would "never dishonor her by being involved with drugs." He then asked the court to consider how various criminals were rewarded for testifying against him and how that squared with the "need that justice be served." Specifically, Bergrin reminded the court of witness Richard Pozo who headed $150 million a year cocaine empire and how he was released after serving just four years as a reward for his testimony. Bergrin continued, "Witnesses for this case are laughing about receiving time served." AUSA Gay sat smugly as Bergrin's accusations continued to fly.
Then, with a full head of steam, Bergrin explained how while he was an AUSA in the very same Newark office now overseeing his prosecution, he was threatened by current New Jersey United States Attorney Paul Fishman, former New Jersey United States Attorney (and current Supreme Court justice) Sam Alito and the recently deceased by suicide former AUSA John Fahy. Specifically, Bergrin chose to assist two police detectives he knew were being wrongfully prosecuted by the Newark office and was told that if he continued, his career would be over.
Current U.S. Attorney Paul Fishman was specifically named by Bergrin as having been one of the prosecutors who threatened to end his career.
Finally, Bergrin reached the matter of Iraq. He cited his six trips to Iraq and described being told by U.S. officials that if he persisted in his efforts to expose actions of the U.S. government, he would be "killed or kidnapped." Cavanaugh appeared to grow uneasy as Bergrin said, "I didn't know that the president, vice-president and secretary of state would deny torture."
And that was when Cavanaugh pulled the plug. He quickly told Bergrin to "please finish up" and added "we are going far afield here." Cavanaugh was determined to see, as he had during the trial, that Bergrin's documented whistleblowing be kept out of the proceedings.
Was Cavanaugh directed to keep any mention of Iraq out of the proceedings against Bergrin?
With little left to say Bergrin quickly concluded, allowing Cavanaugh to move to the imposition of sentence. Perhaps sensing that his part in this farce might someday be called into question, Cavanaugh began by all but saying "I'm just a federal judge" and claimed that he "must follow statute" in the imposition of sentence. Despite overseeing a trial that was a mockery of justice, he cited a need for the sentence to "promote respect for the law." Cavanaugh feigned regret as he solemnly announced, "I take no pleasure in imposing sentence, but I have a duty to do so." For an added measure of solemnity he added, "The jury has spoken."
As was scripted all along, Bergrin received six life sentences, plus decades more prison time and even a term of supervised release thrown in for good measure. While an extreme sentence, its imposition was in many ways anti-climactic. There was never any doubt that Cavanaugh and his compatriots in the prosecutor's office would seek to dispose of Bergrin once and for all and to as great a degree as possible. The trial was never about the killing of a low level drug dealer in Newark or the federal government's alleged concern over his demise. The sheer numbers of such killings that go unpunished make the idea laughable. Rather, this case was all about retribution and may be the most extreme example yet of the government's ongoing war on whistleblowers. Begrin's conviction and life sentence is not only retributive, but is also intended to have a dissuasive effect upon others contemplating a similar course of action. The war on whistleblowers continues.