How the Government Breaks the Law

November/December 2004 PolicyReportVol. XXVI No. 6 How the Government Breaks the Law by Andrew P. Napolitano t should be against the law to break the law. Unfortunately, it is not. In ear- ly 21st-century America, a dirty little Isecret still exists among public officials, politicians, judges, prosecutors, and the police. The government—federal, state, and local—is not bound to obey its own laws. I know this sounds crazy, but too many cases prove it true. It should be a matter of grave concern for every Ameri- can who prizes personal liberty. When I became a judge in New Jersey, I had impeccable conservative Republican law- and-order credentials. When I left eight years later, I was a born-again individualist, after witnessing first-hand how the criminal jus- Judge Andrew P. Napolitano, Fox News judicial analyst, discusses the Supreme Court’s record on tice system works to subvert and shred the civil liberties at the annual Constitution Day conference of Cato’s Center for Constitutional Stud- ies on September 17. Federal Election Commission chairman Brad Smith and Judge Royce Lam- Constitution. You think you’ve got rights that berth listen. are guaranteed? Well, think again. Eternal vigilance is the price of liberty, par- ticularly when it comes to the American crim- the Constitution and the Bill of Rights. In This Issue inal justice system. Nowhere else does the That’s what it has always meant, and that’s state have greater raw power over an indi- what it will continue to mean in the trou- vidual’s life, liberty, and property. And nowhere bled times before us. else are our constitutionally guaranteed rights Most of us take these guaranteed rights and freedoms under such a relentless, subtle, and liberties for granted. Most of us live and ultimately devastating attack. comfortable lives that never bring us in The deck is grossly stacked in the gov- conflict with the criminal justice system. ernment’s favor. No wonder, as a recent But in many ways, that’s a bad thing, for New York magazine cover story put it, if you had seen the system as I did, you referring to the government’s long winning would never take your guaranteed rights Penn but not Teller, p. 4 streaks in criminal trials, “The Defense for granted again. Rests—Permanently.” No wonder that in Crane on the Ownership Society 2 2003 fewer than 3 percent of federal indict- Breaking the Law to Enforce the Law The Supreme Court’s impressionist year 3 ments were tried; virtually all the rest of As a judge, I once heard an infuriating case Cato events 4 those charged pled guilty. involving the owner of a small Italian restau- Being an American means having cer- rant, an immigrant from Italy who was visited Abusing the courts 7 tain rights and liberties guaranteed by by two well-dressed gentlemen who introduced Does affirmative action help? 8 themselves and asked for weekly payments of The coming pension bailout 14 Andrew P. Napolitano, senior judicial ana- a hundred dollars. In return, they promised the Drug reimportation 14 lyst for Fox News Channel, is the youngest restaurant owner that his garbage would be Should Iraqis pay Saddam’s debts? 15 life-tenured judge in the history of New Jer- collected on time, he would not have any trou- Creating a real education market 16 sey. He is the author of Constitutional Chaos: ble with labor unions, he would not be the vic- The criminalization of almost everything 18 What Happens When the Government Breaks tim of any crime, and no competing restaurant To be governed . 20 Its Own Laws, on which this article is based. Continued on page 12 ❝If you had seen the system as I did, you would never take your guaranteed rights for granted again.❞ BREAKS THE LAW Continued from page 1 The children were brainwashed with fan- month period. These psychiatrists claimed tasies of sexual abuse involving masks, to be able to help individuals “recover mem- would open in his neighborhood. snakes, drills, and other objects, and even- ories,” but their technique was simply to He threw them out. tually came out of the interviews think- hypnotize Ileana so that she could be brain- They returned unannounced about six ing they were victims. washed into believing that Frank Fuster times and every time their demands increased, Of all the children alleging sexual abuse was a child molester. The coercion even- eventually to a thousand dollars a week, against Fuster, Reno’s office only presented tually worked: with the psychiatrists pres- each. After he rebuffed that demand, they physical “evidence” that one child was abused. ent and with Janet Reno squeezing her said they’d be back the following week with The prosecution invoked a laboratory test sug- hand, Ileana implicated her husband. guns, and he’d better get one. Terrified of gesting that a child had tested positive for gon- Ileana’s trial testimony against her hus- this threat, and afraid as most immigrants orrhea of the throat. However, the lab test that band put the final nail in Frank Fuster’s are to involve the police, the restaurant was performed is very unreliable and often coffin. Reno won the conviction, her reelec- owner borrowed a friend’s gun. gives false positives. Reno’s agents tested for tion bid, her name in the newspaper head- When the two gentlemen returned and the family of bacteria to which gonorrhea lines, and a stepping stone to a position as asked if he had a gun, the restaurant owner belongs rather than specifically for gonorrhea; the nation’s chief law enforcement offi- reached into a drawer, pulled out the gun, and other bacteria that could have caused the false cer. However, Ileana Fuster has repeated- pointed it at them. They immediately slapped positive are harmless and are frequently found ly retracted her confession and testimony, handcuffs on him! Unbeknownst to him, they to live in children. Of course, the state ordered swearing that she and Fuster never abused were New Jersey state troopers who were try- the lab to destroy the evidence three days lat- any of the children, and that her confes- ing to either shake him down for money or er, thereby preventing the defense from chal- sion was the product of brainwashing. coerce him into breaking the law. lenging the state’s “evidence.” Yet, thanks to Janet Reno, an innocent His prosecution for carrying a gun was Recognizing that the case against Fuster Fuster remains incarcerated for 165 years assigned to me, along with a similar case was weak, Janet Reno’s final straw was to without the possibility of parole. involving a nearby Italian bakery. torture Ileana Fuster physically and men- Before the cases began, I ordered the troop- tally to the point where she could be coerced Messing with Texans ers to appear in my courtroom, to inquire if into implicating her husband. It is unfair, unwise, and un-American for their schemes were self-directed or author- Reno had Ileana isolated from the prison police to break the law in order to enforce ized by their supervisors. They refused to be population and placed in solitary confine- it. A corrupt police officer in Tulia, Texas, a so interrogated, whereupon the prosecutors ment, naked. Ileana described her treatment small rural town of about five thousand peo- asked me to dismiss both cases, which I did. in a 1998 interview: “They would give me ple, engaged in what one commentator deemed The bakery owner was so delighted, he pro- cold showers. Two people will hold me, run an “ethnic cleansing of young male blacks.” claimed in a classic Sicilian accent: “The me under cold water, then throw me back in Thomas Coleman, an undercover nar- Judga, he can eata for free for the resta his the cell naked with nothing, just a bare cotics officer, committed one of the worst life!” I never took the owner up on his offer, floor. And I used to be cold, real cold. I would police atrocities in recent years by arrest- but I appreciated his sentiments. have my periods and they would just wash ing 46 people on July 23, 1999. Of those me and throw me back into the cell.” arrested, 39 were black, which amounts to Torture and Psychological Abuse Late one night, the naked Ileana, according approximately half of the town’s adult black Political ambition can be a powerful moti- to her lawyer, received a visit in her darkened population. Many others were involved vating factor for government abuse of our solitary cell from an intimidating 6-foot-2 in the family or personal relationships with rights. Consider one of the cases that helped woman. The woman told Ileana that she knew black Americans in an otherwise over- propel Janet Reno to national stardom. In that Ileana and her husband were guilty. “But whelmingly white community. Coleman’s 1984, Reno faced a serious challenger in her how can that be? We are innocent,” Ileana pro- previous law enforcement employers knew bid for reelection as Dade County’s state claimed. “Who are you?” “I’m Janet Reno,” that Coleman himself had once been arrest- attorney. In August of that year, Frank Fuster the woman said. Ileana repeatedly told Reno ed for theft during an undercover opera- and his wife, Ileana Fuster, were arrested for that she was innocent, and Reno kept repeat- tion, that he used racial epithets, and that sexually abusing more than 20 children who ing, “I’m sorry, but you are not. You’re going he had a widespread reputation in the Texas attended their home daycare center.

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