Paying For Your Innocence The Justice Department's Terwilliger says that in some cases "dumb judgement" may occasionally cause problems, but he believes there is an adequate solution. "That's why we have courts." But the notion that courts are a safeguard for citizens wrongly accused "is way off," says Thomas Kerner, a forfeiture lawyer in Boston. "Compared to forfeiture, David and Goliath was a fair fight." Starting from the moment that the government serves notice that it intends to take an item, until any court challenge is completed, "the government gets all the breaks," says Kerner. The government need only show probable cause for a seizure, a standard no greater than what is needed to get a search warrant. The lower standard means the government can take a home without any more evidence than it normally needs to take a look inside. Clients who challenge the government, says attorney Edward Hinson of Charlotte, N.C., "have the choice of fighting the full resources of the U.S. treasury or caving in." Barry Kolin caved in. Kolin watched Portland, Ore., police padlock the doors of Harvey's, his bar and restaurant for bookmaking on March 2. Earlier that day, eight police officers and Amy Holmes Hehn, the Multnomah County deputy district attorney, had swept into the bar, shooed out waitresses and customers and arrested Mike Kolin, Barry's brother and bartender, on suspicion of bookmaking. Nothing in the police documents mentioned Barry Kolin, and so the 40-year-old was stunned when authorities took his business, saying they believe he knew about the betting. He denied it. Hehn concedes she did not have the evidence to press a criminal case against Barry Kolin, "so we seized the business civilly." During a recess in a hearing on the seizures weeks later, "the deputy DA says if I paid them $30,000 I could open up again," Kolin recalls. When the deal dropped to $10,000, Kolin took it. Kolin's lawyer, Jenny Cooke, calls the seizure "extortion." She says: "There is no difference between what the police did to Barry Kolin or what Al Capone did in Chicago when he walked in and said, 'This is a nice little bar and it's mine.' the only difference is today they call this civil forfeiture.'' Minor Crimes, Major Penalties Forfeiture's tremendous clout helps make it "one of the most effective tools that we have," says Terwilliger. The clout, though, puts property owners at risk of losing more under forfeiture that they would in a criminal case under the same circumstances. Criminal charges in federal and many state courts carry maximum sentences. But there's no dollar cap on forfeiture, leaving citizens open to punishment that far exceeds the crime. Robert Brewer of Irwin, Idaho, is dying of prostate cancer, and uses marijuana to ease the pain and nausea that comes with radiation treatments. Last Oct. 10, a dozen deputies and Idaho tax agents walked into the Brewer's living room with guns drawn and said they had a warrant to search. The Brewers, Robert, 61, and Bonita, 44, both retired form the postal service, moved from Kansas City, Mo., to the tranquil, wooded valley of Irwin in 1989. Six months later, he was diagnosed. According to police reports, an informant told authorities Brewer ran a major marijuana operation. The drug SWAT team found eight plants in the basement under a grow light and a half-pound of marijuana. The Brewers were charged with two felony narcotics counts and two charges for failing to buy state tax stamps for the dope. "I didn't like the idea of the marijuana, but it was the only thing that controlled his pain," Mrs. Brewer says. The government seized the couples five-year-old Ford van that allowed him to lie down during his twice-a-month trips for cancer treatment at a Salt Lake City hospital, 270 miles away. Now they must go by car. "That's a long painful ride for him... He needed that van, and the government took it," Mrs. Brewer says. "It looks like they can punish people any way they see fit." The Brewers know nothing about the informant who turned them in, but informants play a big role in forfeiture. Many of them are paid, targeting property in return for a cut of anything that is taken. The Justice Department's asset forfeiture fund paid $24 mil. to informants in 1990 and has $22 million allocated this year. Private citizens who snitch for a fee are everywhere. Some airline counter clerks receive cash awards for alerting drug agents to "suspicious" travellers. The practice netted Melissa Furtner, a Continental Airlines clerk in Denver, at least $5,800 between 1989 and 1990, photocopies of checks show. Increased surveillance, recruitment of citizen-cops, and expansion of forfeiture sweeps are all part of a take-now, litigate-later syndrome that builds prosecutors careers, says a former federal prosecutor. "Federal law enforcement people are the most ambitious I've ever met, and to get ahead they need visible results. Visible results are convictions, and, now, forfeitures," says Don Lewis of Meadville, Crawford County. (ED: a Pa county north of Pgh by two counties.) Lewis spent 17 years as a prosecutor, serving as an assistant U.S. attorney in Tampa as recently as 1988. He left the Tampa Job -- and became a defense lawyer -- when "I found myself tempted to do things I wouldn't have thought about doing years ago." Terwilliger insists U.S. attorneys would never be evaluated on "something as unprofessional as dollars." Which is not to say Justice doesn't watch the bottom line. Cary Copeland, director of the department' Executive Office for Asset Forfeiture, says they tried to "squeeze the pipeline" in 1990 when the amount forfeited lagged behind Justice's budget projections. He said this was done by speeding up the process, not by doing "whole lot of seizures."

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