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Do we need a banks royal commission or an American-style RICO?

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Mobster Joe Valachi testifying before the McClellan Commission

The U.S. Racketeer-Influenced and Corrupt Organisations (RICO) is suddenly in the news with Trump calling for Hillary Clinton's email scandal to be investigated. Evan Whitton argues don't waste taxpayers’ money on a bank inquiry —do a RICO investigation! This from his book, Our Corrupt Legal System:

ORGANISED CRIME, white collar and violent, is systematic criminal activity. Farrer Herschell, a corrupt English judge, invented a rule which conceals evidence of a pattern of systematic criminal behaviour in 1894. Repeat offenders are thus presented to jurors as first offenders. 

In America, RICO has been an exception to the rule against pattern evidence for organised criminals in the mafia, business and the judiciary. RICO defines an organised criminal as one who exhibits a pattern (over ten years) of two or more chargeable offences (not necessarily convictions) which carry penalties of at least a year in prison.

RICO is the product of an unlikely combination of a mob hitter, a senator, a young lawyer and a complex president.

Senator John McClellan (Democrat, Arkansas, 1896-1977), a lawyer, chaired the Sub-committee on Investigations from 1955 to 1973. In 1963, an assassin in the Genovese family, Joe Valachi (1903-71), explained the structure of the mafia to the sub-committee and, via television, to the public.

G. Robert Blakey was the principal draftsman of subsequent legislation to deal with organised crime. The legislation was to hand when Richard Nixon ran for President in 1968 – partly on law and order – and was passed in 1970 as the Organized Crime Control Act. The RICO legislation is Title IX of the Act.

R.I.C.O. & the Decline of the mafia

RICO was plainly going to make it harder for lawyers to get rich organised criminals off. I asked Bob Blakey, now a law professor at Notre Dame, in 2001 how he got RICO past the American Bar Association.

He replied:

“Only with difficulty. The ABA at first endorsed it. We had an in with the President [Nixon]. It [the ABA] then raised objections. We overcame them with White House support.”

RICO’s effect on the mob confirmed that the pattern rule perverts justice on a huge scale. It put away 23 previously untouched mafia bosses throughout the U.S. between 1981 and 1992 including those of the five New York families: Frank (Funzi) Tieri and Anthony (Fat Tony) Salerno (Genovese family), Anthony (Tony Ducks) Corallo and Vittorio Amuso (Lucchese family), Carmine (The Snake) Persico and Vicorio Orena (Colombo family), and John Gotti (Gambino family). Vincente (Chin) Gigante (Genovese family) was convicted in 1997.

RICO was used to imprison 70 white collar organised criminals in Chicago – 20 judges and their 50 bagmen (lawyers and court officials) – between 1984 and 1994.

In 1994, U.S. federal rules of evidence were revised to allow the use of prior alleged acts in federal sex cases. A few states, including California, Indiana, Illinois and Missouri, adopted similar rules.

In 2004, British Home Secretary David Blunkett, announced a plan to give judges a discretion to let jurors hear of an accused’s previous convictions.

He said: 

“These reforms put victims at the heart of the justice system. Trials should be a search for the truth [!] and juries should be trusted with all the relevant evidence to help them to reach proper and fair decisions."

Blunkett no doubt meant well, but U.S. law professor, Benjamin Barton, would say it is unwise to give judges a discretion in matters which affect lawyers’ financial interests. And if the government really believed that trials should be a search for truth, they would abolish the other 23 anti-truth devices.

Australian police and other experts have requested RICO-type legislation since 1984, but the rule against pattern evidence continues to protect white-collar organised criminals, the Calabrian ‘Ndrangheta, and sex criminals.

Evan Whitton is a reporter/historian. China Fangzheng Press has translated and is to republish 'Our Corrupt Legal System'. The English text can be found at netk.net.au/whittonhome.asp.

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This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License

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