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------------------------------------------------------------------- | Date: Sun Jan 17 1993 07:24:00 | | From: Linda Thompson | | To: Everyone | | Subj: WOD (1) | | LAW | | | | War on Crime Expands U.S. Prosecutors' Powers; Aggressive | | Tactics Put Fairness at Issue | | | | By Jim McGee | | Washington Post Staff Writer | | | | Public pressure to combat rising crime, together with 12 | | years of conservative administrations and a "law and order" | | Supreme Court majority, has transformed the U.S. criminal | | justice system and vastly expanded the powers of federal | | prosecutors over the past decade. | | | | The changes can be measured in numbers: The Justice | | Department's budget grew from $2.3 billion in 1981 to $9.3 | | billion today, while the number of attorneys, including | | those who prosecute on behalf of the government, has nearly | | doubled, to 7,881. | | | | At the same time, Justice Department policies and Supreme | | Court rulings have given prosecutors more flexibility than | | ever before in pursuing convictions, and made it | | increasingly difficult for courts or aggrieved individuals | | to hold federal prosecutors accountable for tactics that | | once were considered grounds for case dismissal or | | disciplinary action. | | | | These tactics include manipulation of grand juries; | | failure to disclose evidence favorable to a suspect or | | defendant; government intrusion into the relationship | | between defense attorneys and clients; intimidation of | | witnesses; and blitzkrieg indictments or threats of | | indictment designed to force capitulation without the need | | for a trial. | | | | Polls show that many Americans believe their federal | | court system still coddles criminal defendants. But a | | growing minority of federal judges and other legal experts | | say that the system has tilted too far in the other | | direction, and they have complained, in court opinions and | | journal articles, of a rising official tolerance for | | prosecution maneuvers they see as unfair, abusive and | | manifestly improper. | | | | Often sounding "procedural" or like "legal | | technicalities" to the layman, such tactics can result in a | | "radical skewing of the balance of advantage in the criminal | | justice system in favor of the state," as law professor | | Bennett L. Gershman put it in a recent law review article | | that he called "The New Prosecutors." "First, prosecutors | | wield vastly more power than ever before," Gershman wrote. | | "Second, prosecutors are more insulated from judicial | | control over their conduct. Third, prosecutors are | | increasingly immune from ethical restraints." | | | | These changes, critics like Gershman argue, have | | endangered both the fight against crime and the fairness of | | the American legal system. In some cases, critics contend, | | allowing prosecutors to pursue their cases too aggressively | | can result in the release of the guilty and legal ordeals | | for the innocent. | | | | Among the protesters are judges appointed by President | | Ronald Reagan for their "tough on crime" credentials. "The | | War on Crime, which is being waged in this country, is an | | important one with high stakes," wrote U.S. District Judge | | H. Franklin Waters of Arkansas' western district, a Reagan | | appointee, in a 1991 opinion setting aside a guilty verdict | | he thought was achieved through unfair government tactics. | | "But every person concerned with freedom and justice should | | recognize that, as in most wars, innocent persons are | | sometimes irreparably harmed." | | | | Conscious that such rulings often run against public | | sentiment, some of the dissenting judges see themselves as | | today's equivalent of jurists who made unpopular rulings in | | favor of civil rights during an earlier era. "That's not an | | unfair analogy," Waters said in a recent interview. | | | | Several recent celebrated cases have focused attention on | | these issues:Since last September, the 6th U.S. Circuit | | Court of Appeals, in Cincinnati, has been conducting its own | | investigation into whether the Justice Department | | disregarded information suggesting it had misidentified | | retired Cleveland auto worker John Demjanjuk as Nazi death | | camp guard "Ivan the Terrible." Based on the identification, | | Demjanjuk was deported in 1986 to Israel, where he was | | convicted and sentenced to death. On Dec. 14 in Los | | Angeles, U.S. District Judge Edward Rafeedie acquitted | | Mexican physician Humberto Alvarez Machain - whose abduction | | from Mexico for U.S. trial had been arranged by federal | | agents - of charges that he had participated in the 1985 | | torture killing of U.S. drug agent Enrique "Kiki" Camarena. | | Rafeedie accused federal prosecutors of failing to disclose | | information from an informant that another doctor, not | | Alvarez Machain, had committed the crime. Recent | | convictions of leaders of the El Rukns, Chicago's most | | notorious street gang, are in jeopardy after allegations - | | now under judicial consideration - that federal prosecutors | | suppressed key evidence and engaged in other misconduct that | | denied the defendants a fair trial. | | | | But other cases that have raised questions about federal | | prosecutorial power, while often well-known in legal | | circles, have not made headlines. Beginning in the | | mid-1980s a special unit in the Justice Department used | | threats of simultaneous prosecutions in multiple | | jurisdictions - prohibitively expensive to defend against | | and once specifically discouraged as a prosecutorial tactic | | in the U.S. Attorney's Manual - to force the distributors of | | sexually oriented materials out of business without a legal | | determination that the materials were obscene. Three courts | | have labeled the tactic as unfair and unconstitutional. In | | the District of Columbia in 1988, a prosecutor obtained a | | bribery-conspiracy indictment against a prominent | | businessman with grand jury tactics that were later | | criticized by an internal Justice Department review. The | | review acknowledged that the prosecutor had exercised "poor | | judgment" in his handling of a grand jury witness. The | | businessman was quickly acquitted by a judge who said there | | was no direct evidence against him. But his reputation and | | business suffered severely from the indictment, and he | | continues to seek redress in the courts. | | | | In Los Angeles two years ago, a U.S. district judge threw | | out a major payola-racketeering case because, he said, the | | federal prosecutor did not disclose evidence that tended to | | exonerate a defendant. In May, an appeals court agreed that | | the government's conduct was "intolerable," but reinstated | | the case, saying that recent Supreme Court rulings left it | | powerless to do otherwise. The prosecution is still pending. | | In 1991, a federal judge in California dismissed a | | government drug case because "overzealous government agents | | and prosecutors" had allowed a defendant to retain an | | attorney who was actively working with the government | | against him. While pretending to be honestly representing | | the accused, the attorney was setting him up for the | | government. In December 1991, a racketeering case against | | one of Miami's most notorious criminal suspects was thrown | | out because a judge determined that prosecutors had plotted | | to provoke the target into breaking a plea bargain agreement | | they had made with him. | | | | Senior Justice Department officials argue that the few | | cases in which excesses occur stand out largely because the | | vast number of cases are handled | | fairly, and that federal prosecutors use the weapons | | available to them with great restraint. | | | | "By reason of focusing on a number of individual cases, | | whether they are right or wrong," said Assistant Attorney | | General Robert S. Mueller III in an interview, "you are | | going to tar any number of prosecutors out there who have | | dedicated their lives to what they feel is participating in | | the criminal justice system in a way that is fair and just. | | | | "You are going to paint us . . . as being some form of | | Hessians that will trample over rules without any restraints | | in order to put somebody away," said Mueller, who heads the | | department's Criminal Division. "That bothers me. That | | disappoints me." | | | | "You have to judge us overall by what is the net result of | | the department's performance," said Deputy Attorney General | | George Terwilliger III. "Is (it) . . . that we have a lot of | | kamikaze prosecutors out there, running around, doing all | | kinds of inappropriate things? Or is (it) . . . that we have | | a very highly capable, professional corps of prosecutors and | | investigators out there who produce outstanding results under | | difficult conditions for a lot less pay than their | | counterparts in the private sector make?" | | | | Reagan-Era Crusade Against Crime | | | | Crime fighting as a theme for national crusade was not | | born with the Reagan administration. But Reagan and his | | lieutenants came to Washington with a strong belief that | | America had been weakened by an era of social and judicial | | liberalism, and that the nation was under siege by what the | | president in 1982 called "this dark, evil enemy within." | | | | "Crime today is an American epidemic," Reagan said during | | a speech at the Justice Department that year in which he | | promised to hire hundreds of new prosecutors and agents to | | attack a "hardened criminal class." | | | | Armed with the growing fear of many Americans that their | | way of life was threatened by lawlessness, and the | | intellectual energy of conservative think tanks that traced | | the threat to imbalances in the courtroom, the administration | | began tilting the scale in favor of the prosecution. | | | | One of the leading champions of the crusade was former | | attorney general Edwin Meese III, who declared war on such | | things as the exclusionary rule - which allowed judges to | | suppress illegally seized evidence - and denounced as | | "infamous" the Miranda warnings meant to protect a suspect's | | rights against self-incrimination. | | | | Meese gave voice to the sentiments of millions of | | Americans who were disgusted with crime and impatient with | | laws that appeared to hamper police. "The rule of law has | | managed to maintain a precarious edge over the forces of | | chaos ever since the revival of Western Civiliation," Meese | | said in a 1988 speech. "In a sense we are facing up to | | another barbarian-type invasion." | | | | If Meese challenged the law, his successor as attorney | | general, Dick Thornburgh, promoted the autonomy of federal | | prosecutors. During a 1991 CNN interview, Thornburgh | | explained his belief - reflected in Justice policies - that | | federal prosecutors should have more leeway than other | | lawyers. | | | | "Law enforcement is basically a conservative business," | | he said. "You're putting bad guys in jail. You're trying to | | get every edge you can on those people who are devising | | increasingly more intricate schemes to rip off the public, | | hiring the best lawyers, providing the best defenses. | | | | "So you're constantly pushing the edge of the envelope | | out to see if you can get an edge for the prosecution. | | That's a conservative undertaking. And as a law | | enforcement official, I think many who subscribe to the old | | liberal agenda of the '60s when the Warren Court was expanding | | a defendant's rights objected to the fine tuning that we were | | proposing in these laws, not to abolish constitutional rights, | | but to give the law enforcement officer an even break." | | | | For those prosecutors accused of taking more than an "even | | break," the Justice Department has its own self-policing unit, | | the Office of Professional Responsibility. From 1985 through | | 1991, according to the department, 22 assistant U.S. attorneys | | resigned during "pending" internal investigations into | | allegations of prosecutorial misconduct, ranging from | | improperly securing arrest warrants to improperly contacting | | defendants who were represented by lawyers. One other attorney | | was fired outright. | | | | A quiet resignation "allows the attorney to leave with more | | of his reputation intact than if the record showed he was | | dismissed," said Michael E. Shaheen Jr., counsel to the | | professional responsibility unit. ". . . It's an easy | | resolution for us." | | | | But it is difficult to judge the efficacy of the office, or | | the standards that it uses, because its operations are secret | | and it rarely provides specific information about complaints | | it receives or their disposition. And, while the department's | | U.S. Attorneys Manual sets high standards on paper for the | | behavior of its prosecutors, it acknowledges that they are not | | necessarily bound by them. | | | | A recent General Accounting Office report - prompted by | | congressional frustration with the oversight office's secrecy | | - criticized the Office of Professional Responsibility for its | | "informal ways and unsystematic approach." Despite the near | | doubling in the number of prosecutors, the office has | | consisted of no more than six lawyers at a time since 1979. | | | | Erosion of Judicial `Supervisory Powers' | | | | Over the last decade, the powers judges once had to | | question or stop government misconduct in the criminal justice | | system have been significantly eroded by Supreme Court | | decisions. Some have categorized as "harmless errors" - not | | justifying reversal of a conviction - prosecutorial breaches | | that once were considered serious. In 1991, for example, the | | court held that using a coerced confession as evidence against | | a defendant could be considered "harmless error." | | | | The present discomfort of some federal judges stems most | | directly from a decline of their "supervisory power" over the | | conduct of federal prosecutors and agents. Although rarely | | used, this diminishing power has been a last-resort remedy | | that judges can invoke to end prosecutions they considered | | abusive, whether or not they violated any specific | | constitutional guarantee. | | | | In recent years, the Supreme Court has cut back drastically | | on the circumstances in which the supervisory power may be | | applied, arguing that it too often represents an undue | | intrusion into the affairs of the prosecutorial branch. | | | | Most recently, the court last term, in a case called U.S. | | v. Williams, severely restricted the "supervisory powers" of | | judges to enforce "fundamental fairness" by throwing out cases | | tainted by grand jury abuse. | | | | Writing for the dissenters in a 5 to 4 decision, Justice | | John Paul Stevens warned of the dangers of allowing | | "overzealous or misguided prosecutors" to operate free of any | | meaningful judicial deterrent. | | | | In such cases, the high court has referred aggrieved | | individuals to the disciplinary machinery in state bar | | associations or to the Justice Department for relief. However, | | the Justice Department declared in June 1989 that its | | prosecutors were not subject to state bar discipline when, in | | the view of the department, it would allow excessive state | | interference in federal investigations and prosecutions. | | | | While much of the new power of prosecutors stems directly | | from acts of Congress designed to combat white-collar crime | | and drug trafficking, Congress has been relatively | | deferential in dealing with the overall conduct of the | | department and its disciplinary unit. | | | | As a result of Supreme Court, department and congressional | | actions, U.S. District Judge John L. Kane of Colorado said in | | an interview, "The system of checks and balances is out of | | whack," giving rise to what he called a "sorry episode of one | | egregious act after another" by the government. | | | | A "senior status" retired judge who can choose his cases, | | Kane has taken the symbolic step of refusing to hear any | | criminal cases. The role of the federal judge in criminal | | cases has become little more than a "clerical function," and | | without the ability to deter prosecutorial misconduct, he | | said in an interview, he cannot in good conscience promise | | defendants a fair trial. | | | | The experience of U.S. District Judge Terry J. Hatter Jr. | | typifies the conflict that has arisen between some trial | | judges, who confront government tactics at ground zero and get | | outraged, and appellate judges, who confront them more in the | | abstract and have to measure them against Supreme Court | | precedents. | | | | In 1984, Hatter was presented with the indictment of one | | Darrell P. Simpson on charges of drug trafficking. The FBI | | became interested in Simpson after receiving a tip from | | Canadian authorities that he was an international drug | | smuggler. The agents then used as an informant a woman who | | was a prostitute, heroin user and a fugitive from Canada. | | They arranged for her to meet Simpson as if by accident. The | | two became intimate and, at her urging, Simpson procured | | heroin from an undercover agent. | | | | In the course of her work for the FBI, she continued to | | engage in prostitution, heroin use and shoplifting and, | | according to court records, the agency allowed her to keep a | | $10,000 profit from a heroin sale. | | | | Hatter dismissed the indictment saying that the | | government's action was so outrageous as to be | | unconstitutional. "I am constantly in the business of sending | | messages to drug dealers," said the judge. "It is important | | that I send a message now to the government that this kind of | | activity will not be tolerated." | | | | Two years later, the 9th U.S. Circuit Court of Appeals | | reversed Hatter and sent the case back to him, saying the | | government's behavior did not violate the Constitution. In | | 1988, Hatter dimissed the charges a second time, acting, he | | said, under his "supervisory powers" as a federal judge. | | | | In March 1991, a panel of the 9th Circuit reversed him | | again, this time with a lecture delivered by Judge Alex | | Kozinski. Hatter, Kozinski wrote, was "rightfully disturbed | | by the less-than-exemplary conduct of the government." But | | "sleazy tactics alone" do not empower a judge to throw out a | | case. "In the exercise of the supervisory power," Kozinski | | wrote, "judges must be careful to supervise their own affairs | | and not those of the other branches." Unilateral Exemption | | From Ethics Rules | | | | One of the greatest continuing controveries over the | | control of federal prosecutorial behavior stems from | | Thornburgh's 1989 move as attorney general to limit | | significantly the authority over government lawyers of state | | bar | | organizations, the bodies that license lawyers. | | | | Thornburgh was responding to a 1988 decision by the 2nd | | U.S. Circuit Court of Appeals reaffirming that bar | | disciplinary rules restrict the behavior of federal | | prosecutors as well as all other lawyers. Unilaterally, | | Thornburgh declared in a memorandum that Justice Department | | lawyers are exempt from state bar associations' codes of | | professional conduct, if those ethical provisions interfere | | with investigative and prosecutorial activities authorized by | | law. The issue that sparked the memorandum was whether federal | | prosecutors could directly contact defendants who had lawyers. | | | | District of Columbia Superior Court Judge Gladys Kessler | | encountered the issue in a 1988 case. She determined that a | | federal prosecutor in Washington had violated a bar | | disciplinary rule by having conversations with a murder | | defendant without his lawyer being present. Kessler referred | | the matter to bar authorities in the District, but because the | | prosecutor originally was licensed as a lawyer in New Mexico, | | the allegation was transferred to the bar disciplinary board | | there. | | | | When it got there, the Justice Department, invoking | | Thornburgh's memorandum, declared that there was nothing state | | authorities could do about it and went to federal court to | | have the matter removed from the hands of state authorities. | | | | In New Mexico, U.S. District Judge Juan G. Burciaga was | | astonished when he heard the government claim of immunity from | | state disciplinary action for its lawyers. "The Government," | | he wrote in an August opinion rejecting the Justice | | Department's position, "threatens the integrity of our | | tripartite structure by arguing its lawyers, in the course of | | enforcing the laws regulating public conduct, may disregard | | the laws regulating their own conduct. The irony of such an | | assertion not only fuels public discontent with our system of | | justice, but the insolence with which the Government promotes | | this as official policy irresponsibly compromises the very | | trust which empowers it to act. It falls to this Court to | | disabuse the Government of its novel self-conceived notion | | that Government lawyers, unlike any other lawyer, may act | | unethically." | | | | Burciaga said that Thornburgh, before issuing his | | memorandum, "would have done well to have taken a few steps | | from his office to contemplate the inscription on the (Justice | | Department) . . . wall. . . . `The United States wins its case | | whenever justice is done one of its citizens in the courts.' " | | | | On Dec. 23, the Justice Department asked a federal judge in | | the District to enjoin Virginia L. Ferrara, the chief | | disciplinary counsel for the New Mexico Supreme Court, from | | "taking any adverse action against an attorney employed by the | | United States Department of Justice for the performance of | | federal duties or responsibilities consistent with federal | | law." | | | | "It's makes me sound like some kind of drug runner," said | | Ferrara, who estimated that the New Mexico bar's small | | disciplinary office has so far spent $18,000 defending itself | | from the Justice Department's legal attacks. Staff researchers | | Barbara Saffir and Margot Williams contributed to this report. | | | | QuickBBS 2.76 Ovr | | Origin: MotherBoard BBS-Indianapolis, IN (317) 881-2743 | | (1:231/110) | -------------------------------------------------------------------