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Ashcroft Ignores Missouri Supreme Court Decision as Governor

by Daniel Forbes, Progressive Review Friday, Jan. 19, 2001 at 3:14 PM

Ashcroft tells police officials to ignore a Missouri Supreme Court decision on asset forfeiture monies. Move would cheat school districts of badly needed funds.

errorTwo Missouri police officials quoted then governor John Ashcroft as having told them he'd "`look the other way'" should they ignore an upcoming Missouri State Supreme Court ruling that might direct asset forfeiture monies to be distributed to local school boards in accordance with the state constitution.

The statements were made independently and at different times by both a sheriff in uniform and a police chief at a meeting at the office of then US Attorney for the Western District of Missouri, Jean Paul Bradshaw, a decade ago, according to Don Burger, then an official with the US Department of Justice. Representing Justice, Burger attended in his role as a community affairs specialist seeking to steer to Missouri schools and treatment programs some of the drug-bust money being illegally kept by police.

John Ashcroft drapes himself in the mantle of "integrity." He used the word in reference to himself several times during his introduction by President-elect Bush as the Attorney General nominee. The repeated characterization fuels the oft-proclaimed notion that Sen. Ashcroft is a man of such moral rectitude that the nation can count on him to fully enforce all laws - no matter his personal views. During the first day of his Senate confirmation hearings, Sen. Ashcroft declared, raising his right hand for emphasis, that, "When I swear to uphold the law, I will keep my oath, so help me God." Yet, during Sen. Ashcroft's tenure as governor of Missouri, he blithely told two senior law enforcement officials he would ignore a serious matter of law, according to Burger.

Says Burger, recalling the meeting at Bradshaw's office in Kansas City, MO a decade ago, the two law enforcement officials said Gov. Ashcroft had told them he would "`look the other way'" should the police proceed to ignore a ruling about to emerge from the Missouri Supreme Court. The ruling, ultimately issued in November 1990, mid-way through Sen. Ashcroft's second term as governor, concerned a case brought by a local school board that argued that Missouri law enforcement must follow the state constitution and turn proceeds from asset forfeiture cases over to education rather than keep the money for themselves. Millions of dollars were at stake, money Missouri law enforcement agencies had used for years to buy everything from computers to radio systems to cars and guns.

Now, with a ruling expected shortly, the cops were nervous that their well might run dry. But, according to Burger's recollection of statements by the two top cops, who spoke independently at different times during the meeting, police - especially the highway patrol that reports to the governor's office - need not fear interference from the same cabinet nominee who now pledges to rigorously and impartially enforce the nation's laws.

Hosted by US Attorney Bradshaw, the meeting was attended by members of what was known informally as the Law Enforcement Coordinating Committee, says Burger. Among the items on the agenda was a discussion of the "problem of state law," he says - that is, the provision in Article IX, Section 7 of Missouri's constitution that requires "the clear proceeds of all penalties, forfeitures and fines collected hereafter for any breach of the penal laws of the state € shall be distributed annually to the schools of the several counties according to law."

Referring to the sheriff and the police chief, Burger told the Review, "Both men stated at different times during the meeting that - based on their conversations with Governor Ashcroft - the governor said he would 'look the other way' specifically regarding the [Missouri] Supreme Court's ruling and asset seizures going to education. That was the terminology used by both persons." Burger adds that he remembers both individuals using the specific "look the other way" terminology because, "It struck me as an unusual reference regarding the applicability of funds to be set aside for education."

In fact, says Burger, the remarks were salient enough, that he later jotted down the Ashcroft quote in the margins of a Dept. of Justice report he was reading. The governor's statement, in Burger's opinion, indicated that Missouri law enforcement agencies would continue, despite any state supreme court ruling, to "use asset forfeiture to divert money to sheriff and police department projects."

Bradshaw, now in private practice in Kansas City, recalls no such statements by any police officials at any meeting he attended. Mindy Tucker, a spokesperson for the Bush/Cheney transition team said that ignoring a court ruling "is not a position ever held by Gov. Ashcroft." She based her statement, she said, on conversations with "people familiar with his positions on this." But, consider the disclosure last May by Karen Dillon, who's written an award-winning two-year series in the Kansas City Star on asset forfeiture issues:

"In 1990, just a few days after the Missouri Supreme Court ruled that state forfeitures had to go to education in most cases, the US attorney for the Western District of Missouri wrote a letter to state and local law enforcement agencies. 'I know that all of you in law enforcement are in desperate need for additional financial resources,' wrote Jean Paul Bradshaw. He explained that police could bring seizures to a federal agency even if the agency had no involvement in the case. 'As most of you know, the money we share through our forfeiture program goes [directly] to the state or local law enforecment agency,' he wrote."

The fruits of Ashcroft's alleged winking and Bradshaw's exhortation were harvested richly. There have been subsequent attempts in 1992, 1993, and last year in the Missouri legislature to strengthen the law that forfeitedassets be conveyed to education. Another attempt will be made in the upcoming session. A report by the staff of the US Senate Judiciary Committee; a 1998 federal district court case and Dillon's massive and continuing series in the Kansas City Star also suggest an end-run around the state constitutional requirements.

City Councilman and Mayor Pro Tem of Kansas City, Alvin Brooks, is a former police detective and a charter board member of the Community Anti-Drug Coalitions of America. He was also one of President Bush's "Thousand Points of Light," and, according to his bio, was recognized by William Bennett as "a front-line soldier in our war against drugs."

Back in 1990 he was running the Ad Hoc Group Against Crime in Kansas City, which fought crime and drug abuse. During that time Brooks says he had many conversations with Don Burger, representing the Dept of Justice, about the mechanics of asset forfeiture and how to steer some of those funds to local drug treatment programs. He said his discussions with Burger focused on "how could we get law enforcement to bring some money back to the neighborhoods where the forfeitures were taking place." He adds, "Don did research on this and said here's what community groups should do to try to get some of this money."

Told of Burger's allegations, Kevin Zeese, executive director of the Common Sense for Drug Policy Legislative Group opposing the Ashcroft nomination, says "Ashcroft told people to go ahead, to federalize it, I'll look the other way. That's an affirmative action, but one he tried to keep his fingerprints off." Hilary Shelton, director of the NAACP Washington Bureau, says that senators he has spoken to, including Russ Feingold (D-WI), report that Sen. Ashcroft has told his former Senate colleagues that he'll vigorously enforce the law without exception. But Shelton maintains that, "If indeed these allegations are true, it raises major, fundamental concerns about Mr. Ashcroft's ethical ability to serve as attorney general. It begs the question of how he will enforce laws that he doesn't agree with."

The concept by which state and local law enforcement agencies still circumvent the Missouri Constitution is known as "adoptive forfeiture." Basically, the cops call in federal agents, typically DEA agents, and have them "adopt" the case. Stopping a car on Interstate 70, for instance, and finding drugs and a quantity of cash, the Missouri Highway Patrol declares that it has detained the assets (often including the car itself), but has not "seized" them. It leaves that to the DEA. Then, according to federal guidelines, the feds keep 20% of the proceeds and, in effect, launder the remainder back to the local authorities; often, several jurisdictions will slice up the pie. Everyone but school kids is happy.

Quoting the Kansas City Star, the Senate Judiciary Committee report quotes one officer as saying, "We don't deal in state forfeitures at all, because law enforcement doesn't derive any revenues from that." Evidence that the tactic continues is found in a concurring opinion issued by a federal judge in the Eight Circuit in 1998, who found that the Missouri Highway Patrol and the DEA "successfully conspired to violate the Missouri Constitution."

James D. Worthington, a partner in the Lexington, MO, law firm of Aull, Sherman, Worthington, Giorza and Hamilton, represented the local school board in the 1990 case. He says the case was prompted by press reports of three separate forfeitures of approximately $1 million each in a particular county, and the school board in Odessa reasoned that surely they should have received some funds. After the court ruling, says Worthington, police agencies indicated they would comply. "But then they proceeded with a sleight of hand, a bait and switch, a calling the feds down to have the feds 'seize' the money. It's been nothing but organized blackmail, graft and corruption."

Don Burger joined Justice in 1968, recruited by Ramsey Clark to spend a career working primarily to foster improved relations among the many different shades of Americans. He served the final years of a twenty-two year career based in Kansas City. Retired from federal service, he's now a consultant on civil rights issues.

Atkins Warren is now regional director of the Dept. of Justice for the states of Missouri, Kansas, Nebraska and Iowa, and he worked with Burger for many years in Washington. "He was a very good employee," said Warren. "He did a lot to resolve community conflict." Warren termed Burger "credible," then added, "He was excellent."

US Rep. Jim Clyburn, Democrat of South Carolina, got to know Burger through their work with the National Association of Human Rights Workers; Rep. Clyburn is a past president and Burger served a term as national secretary. (Burger was also president of his government employees union local.) Rep. Clyburn, who opposes the Ashcroft nomination, says, "Burger was always a straight shooter with me. I never had any dealings with him that make me question whether he was a straight shooter or not."

Leonard Zeskind, formerly research director for the anti-Klan, Atlanta-based Center for Democratic Renewal, worked with Burger combating hate crimes and white supremacy organizations such as the Covenant Sword and Arm of the Lord in rural Missouri.

Currently writing a book for Farrar, Strauss, Giroux on white nationalist groups and a former McArthur Foundation "genius" award winner, Zeskind declares Burger, "a reasonable guy, a nice, smart guy."

In fact, Burger is such a straight arrow, he actually referred a potential favorable witness on Sen. Ashcroft's behalf to Missouri Senator Kit Bond. With accusations of racism hounding Sen. Ashcroft, Burger says he referred an African-American woman to Sen. Bond who was anxious to speak favorably of her experience at Evangel University in Springfield, MO, the college run by Ashcroft's father. Marlene Henderson confirms that last Friday, Burger called both Sen. Bond's Missouri and Washington offices on her behalf.

Burger says he's fairly agnostic on Ashcroft's nomination, but that he's spent a career trying to develop funding for drug treatment, among other things, and wants to call attention to where seized assets are still being directed.
About the Author:
New York freelancer Daniel Forbes testified before both the US. Senate and the House of Representatives regarding his series in Salon on sub rosa White House payments to television networks and magazines rewarding anti-drug content. A subsequent Salon article detailed the media campaign's origins as an attempt to influence voters on state medical marijuana initiatives.

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