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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. |
| |
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