The Champion
July 1998


Curbing Prosecutorial Excess: A Job for the Courts & Congress
By Arnold I. Burns, Warren L. Dennis & Amybeth Garcia-Bokor

Arnold I. Burns and Warren L. Dennis are partners at Proskauer Rose LLP, in the New York and Washington, D.C., offices respectively. Mr. Burns formerly served as Deputy Attorney General of the United States. Mr. Dennis served for five years as a trial attorney at the Department of Justice.

Amybeth Garcia-Bokor is an associate with Proskauer's litigation and dispute resolution practice.

The Problem: Personalization of Prosecution Invites Excess
Once the phrase "prosecutorial discretion" conjured up an image of sober, reflective and mature exercise of well-informed judgment, usually characterized by a certain concern for public confidence in the system. Now the phrase has increasingly become synonymous with the arbitrary targeting of subjects based on criteria ranging from political hardball, to prosecutorial ambition, to the allure of urgent newspaper headlines and television promos ("News at 11") that, like magic pixie dust, can grace a faceless civil servant with instant celebrity status. To be sure, most prosecutors we encounter work long hours with little glory trying to bring about a just result. The problem is at the margins -- but the margins are growing.

Increasingly, the high public profile of a target or the attention-grabbing nature of the alleged wrongdoing may have more to do with a matter's "prosecutorial merit" than the strength of the evidence or the seriousness of the crime. It is axiomatic by now that whenever prosecutorial effort becomes more focused on "getting" a particular person than pursuing a particular, identifiable allegation, as is increasingly the case, it alters the very architecture and mission of the prosecutor's office. The personalization of prosecution -- "let's get this guy" -- invites excess.

The problem has become endemic, and the solution will need to go beyond ad hoc displays of judicial exasperation and oversight. It requires careful, synoptic analysis of the extent and nature of prosecutorial excess, especially in connection with the prosecution of relatively minor white-collar allegations covered by sweeping and overlapping civil or administrative remedial schemes. A congressional solution is necessary to truly curb the over-breadth of discretion and power given to individual lawyers who happen to hold the job of counsel for the government. Until then, however, we believe that it is the job of a conscientious judiciary, at the aggressive urging of defense counsel, to restore traditional notions of responsible exercise of power contained in both the case law and the applicable codes of ethics that apply to government lawyers with equal or greater force than they apply to the rest of the bar. There are many existing tools available to judges who are serious about curbing cumulative prosecutorial excess and exercising the inherent authority given to them to bring about "a just result."

Doing It 'By the Book'
A popular myth has grown up about the way prosecutors and government civil enforcement lawyers operate when they are "doing it by the book." The assumption is that there are "orthodox" methods of building a case that savvy prosecutors use, as though one can build a case like selecting recipes from a cookbook: isolate subjects; threaten "small fry" with "jail time" for minor infractions to obtain their "cooperation" in testifying against the "big game;" increase pressure on a defendant by targeting family members if necessary to "turn" them; wire "friends" and colleagues with radio transmitters, recorders, and video cameras; infiltrate the target's business or organization with informers; nail down evidence of tangentially related but easy to prove "crimes" as a way of reaching elusive targets of prosecution; seek to disqualify or even investigate a defendant's lawyer to impair or cripple an effective defense. Not to mention more conventional tactics such as wiretaps, surveillance, mail intercepts, pre-trial forfeiture, asset freezes, and broad search warrants.

It is difficult to argue against the aggressive use of these tools and tactics in connection with prosecutions aimed at breaking up terrorist bombing plots, espionage cells, massive fraud by government contractors, corrupt judges, dishonest union chiefs, big time money launderers, international narcotics operations, organized crime families, vicious racial hate crimes, widespread and violent gang activity, or the exploitation and abduction of children. From Eliot Ness to Clint Eastwood, public sympathy has always been on the side of zealous (sometimes even overzealous) law enforcement when the government operates as the citizenry's bulwark against the sociopathic, the violent, and the rapaciously dishonest.

The past several years, however, have brought about an unmistakable sea change in how things work, both in identifying targets of prosecution and in deploying the full artillery barrage of available "by the book" tools when a 22-calibre pistol will do nicely. The use of large weaponry on small targets cheapens the law and the public's view of those who enforce it.

What has been lost is a sense of proportionality and identification of priorities. Like most processes calling for the exercise of judgment and discretion, the decision to mobilize the vast array of weapons available to the government requires a thoughtful balancing test. Tactics must be tailored to the goal. When external factors such as publicity, ego, and ambition intrude and impact on the decision-making process, the phrase "doing it by the book" can take on a new and pernicious meaning.

Roles of Celebrities
The new-found role of prosecutors and defense lawyers as celebrities has brought about an entirely new level of interest in the role of lawyers in the law enforcement process and a powerful new source of external influence, on prosecutors especially. Once, even in sensational trials such as the Gotti prosecutions and the World Trade Center bombing cases, the defense lawyers and prosecutors were all but unknowns as the cases unfolded. No longer. From the Simpson case, the Kennedy-Smith case, "Baby M," the Menendez brothers, to the advent of Court TV, with its Cochran, Rivera, and their professional siblings (to say nothing of prime time dramas based on lawyers), the lawyers have become the story. And not only those lawyers actually involved in a particular high-profile case, but an ever-growing Greek Chorus of lawyer-experts turned talking heads who provide endless commentary ranging from sagacious to silly. Today, even independent counsel retain press agents and spin meisters.

The patter and patois affected in these legal infomercials depart widely from the technical banter and jargon of continuing legal education programs. Most often, lawyer/celebrities compete for the sensational, the sound-bite, and the self-glorification that are inherent in infotainment programs. And it is axiomatic that in any highly publicized matter, the prosecutor and the defense are locked separately in an intense embrace of secret whispers with the press.

The issue is not whether this popularization of the lawyering process is "good" or "bad." It is always good to "de-mystify" the legal system. The point is that, in the klieglights of this arena, the motives and modus of prosecutors, both those who are seasoned and those who are inexperienced, begin to skew, and the awesome arsenal of weapons available to them in the investigatory and prosecutorial stages presents temptations never before present on this scale.

Stars in their eyes have led prosecutors repeatedly down questionable paths. In the case perhaps best known for its airing on national television, a prosecutor engaged the Cable News Network (CNN) to televise the execution of a criminal search warrant, for environmental violations, on the home of a Montana farmer and his 81-year-old wife. In so doing, the prosecutor allowed media to attend the pre-search briefing at which sealed materials were discussed, and never informed the target either that the agent entering his home was wired with a microphone, much less one to record audio for a television show, or that the cameras were television cameras. Despite the sensational press, the defendant was ultimately acquitted of all charges except a misdemeanor.1

Courts should not be oblivious to the phenomenon of such prosecutorial abuse, and should use the traditional ethical and procedural safeguards that bind the conduct of all lawyers in instances when government counsel step over ethical lines.

Congress Has Not Helped
Congress has responded in a variety of ways to public concern about crime, often without a sound appreciation or even a rudimentary understanding of the relationship between the crime, the punishment, and the process.

Congress has defined ever-increasing numbers of business practices as constituting criminal conduct, often in ways that are so inartful that it is difficult to separate that which is lawful from that which is "just business." Slapdash revisions of complex regulatory schemes can leave prosecutors and regulatory agencies with the "discretion" to take what are essentially regulatory violations, such as issues of labeling, weights and measures, and billing classifications, and convert them into indictable offenses. Often, the criteria are so vague that courts, let alone defendants, cannot figure out what is prohibited.2

Congress is also adept at layering on penalties in overlapping criminal, civil, and administrative statutory schemes so that a single act of malfeasance can call forth turf battles between regulatory agencies such as the Securities and Exchange Commission (SEC), the Food and Drug Administration (FDA), the Federal Trade Commission (FTC), the Environmental Protection Agency (EPA), Health and Human Services (HHS), the Office of Thrift Supervision (OTS), and the Federal Deposit Insurance Corporation (FDIC), competing with United States Attorneys and divisions of the Justice Department to take the same last dollar from the same defendant in a combination of administrative, criminal, and civil remedies. This turns simple cases of corporate compliance into high-stakes battlegrounds known to the defense bar as "parallel proceedings," with the potential for imprisonment of corporate officers looming in the foreground and dictating strategy.3

Finally, Congress sometimes exercises its oversight and hearing functions in a way that invites a feeding frenzy of journalists and prosecutors, which adds even greater external pressure on prosecutors to investigate or prosecute no matter the inherent merit of a probe. While this is high-sport "inside the beltway," it is also a phenomenon seen in nearly every large city and state capital. In hearing after hearing, various committees shine a spotlight on the crime du jour. As a rule, those hearings are themselves inconclusive and as lacking in due process as they are abundant in theatrical flourish. Yet, they create pressure -- as they are intended to do -- on the Executive Branch of government to "do something." Open an investigation. Convene a grand jury. Appoint a special prosecutor. Indict somebody.

There was a time in the earlier 1990s, as a result of the cumulative legislation directed at alleged abuses by bank insiders, that a defendant accused of shooting a guard inside the bank lobby had a better chance of avoiding serious jail time than a bank board member who approved some bad loans. U.S. Attorneys, lawyers from the Justice Department, bank agency lawyers, and private outside counsel retained by the bank agencies all converged to conduct multiple investigations of the same facts and use all of the extraordinary and overlapping investigative tools given to them by Congress.4 Courts have generally upheld the simultaneous imposition of jail sentences, restitution, damages, and civil penalties and fines for the very same course of conduct.5

Similar broad and overlapping enforcement schemes exist in connection with securities regulation, health care fraud, government contracting, and environmental compliance. Thus, prosecutors enjoy a combination of the broadest possible set of investigatory tools and a smorgasbord of Title 18 and civil remedial measures with which to threaten targets and those around them. We have, in effect, criminalized the regulatory regimes of government such that:



Sentencing Guidelines Impact
The advent of the federal Sentencing Guidelines has removed judges' ability to restore balance and proportionality at the punitive phase of prosecutions by exercising educated judgment in fashioning flexible relief based on the qualities of the person convicted and the totality of the circumstances. The unintended consequence has been the aggregation of enormous power in the hands of the prosecutor who can come to the bargaining table armed with unilateral ability to stack the deck by deciding how to frame and characterize the charges.8 While this charging power was always present, it is now accompanied by a rigid set of inexorable sentencing consequences that no amount of advocacy or forensic showing can counter.9

Endorsing almost unlimited prosecutorial discretion, absent discrimination, in charging a defendant, courts have found that "so long as there is probable cause . . . a prosecutor may properly base his decision [of what charges to bring] on the penalties available upon conviction."10 As control over the prosecution of certain crimes shifts from primarily one of state law to concurrent federal and state jurisdiction, relatively minor crimes that affect state interests are elevated to federal crimes, expanding the arena in which prosecutorial abuse may occur.11 Garden variety offenses thus become federal offenses, regardless of whether the federal statute was ever intended to address such a crime. Judges have taken account in seeming frustration, noting, for example, that "[i]t could hardly be argued that sentencing discretion has now shifted from the judiciary to the Executive Branch. . . . Suffice it to say that by deciding what to charge, how to charge, and what aggravating factors to present or withhold, the United States Attorney knows from the day of drafting the indictment what sentence he wishes to impose and what sentence will in fact be imposed."12 Congress has tied the judges' hands.

Pre-Hearing Governmental Seizure Remedies
Congress has armed prosecutors and many regulatory agencies with a range of pre-hearing remedies that, as applied, are both cataclysmic -- even to the innocent -- and difficult to defend against. Whether in the use of forfeitures in actions against property, or pre-judgment asset freeze, the very existence of these devices gives a prosecutor an awesome in terrorem negotiating tool.

Asset forfeitures have proven an especially wicked distortion of what the general public expects of the justice system. As originally enacted, and as perceived by most people who never come in contact with it, forfeiture is an effective tool against those found guilty of drug running and other serious crimes where confiscation of property can be a strong deterrent. However, it is a scheme notorious for having become trivialized, often applied using methods and in circumstances that offend the most fundamental notions of fairness and due process. Confiscation occurs in most cases without the property owner being charged. The standard of proof necessary to uphold a forfeiture -- "probable cause" -- is only that which permits police to seek evidence of crime, not execute judgment. It is the citizen, then, who bears the burden of proof by a "preponderance of the evidence" to reclaim his or her property.13 In many, if not most instances the confiscation is wholly disproportionate to the alleged crime.14

Equally troubling are the broad pre-judgment asset freeze and restitution powers given to administrative offices such as the OTS and the SEC.15 Courts have upheld agency pre-hearing orders that for all practical purposes pauperize a defendant before he or she has had an opportunity to mount a defense.16 In these circumstances, "justice" depends wholly upon the government lawyers' exercise of good faith, judicious restraint and fairness -- qualities that do not necessarily come with the job. This is a lesson that more than a half dozen Justice Department lawyers learned when the Chief Judge of the Federal Claims Court, citing "old fashioned" ideas about the duty of government lawyers, excoriated them for taking positions that do "no credit to the United States."17

Grand Jury Minuet
Finally, the inherent nature of the grand jury process itself, although far from being "new," has departed so far from its original purpose as a restraining influence on the British Crown, that it has been taken to new limits as a tool to sculpt indictments, with little critical supervision from any source.

Technically, judges supervise grand juries and are available to hear motions challenging a prosecutor's conduct. But judges do not oversee day-to-day operation of the grand jury, and abuse is an open secret that defense lawyers are often powerless to combat. Representing witnesses before a grand jury, or the person being investigated, has become a well orchestrated, even cynical, minuet.

Counsel for witnesses probe their client for "dirt" they may have on other bigger fish. Grants of limited immunity and potentially far-reaching plea bargains are powerful incentives for witnesses to be "cooperative;" and threats of prosecution for "perjury" based on often minor inconsistencies in testimony all combine to make grand jury presentations a modern version of Kabuki Theater. Do all these threats and inducements motivate a witness to "tell the truth" or to tell the prosecutor what he or she wants to hear?

At this point it is cliche to see through the transparency of the grand jury as a protector of the innocent: "The grand jury is the total captive of the prosecutor, who, if he is candid, will concede that he can indict anybody at anytime, for almost anything. . . ."18

Witnesses appear without counsel. Cross-examination is one way. Prosecutors editorialize at will and innocent inconsistencies are often brandished as evidence of "perjury." In reality, there may be very little that "supervisory" courts can do to restrain abuse inside the grand jury chamber.

This is especially true since the regrettable 5-4, 1992 Supreme Court decision in U.S. v. Williams.19 The Court rejected the long-standing history and tradition that grand juries are part of the court system, such that federal judges could readily exercise a degree of control over prosecutorial conduct before grand juries. Williams repudiates this view, holding that the courts do not possess broad supervisory powers over grand jury proceedings. The Williams decision says the grand jury "is an institution separate from the courts, over whose functioning the courts do not preside." This view is dubious, as a matter of law; an excellent case can be made that the grand jury is indeed part of the Judicial Branch, if only because of its dependence on the courts. Without the court, the grand jury could not exist. Most--if not all--states, in fact, regard the grand jury as a component of the Judicial Branch. Williams seems to create a constitutional anomaly -- the federal grand jury is in effect, after Williams, a fourth branch of government, while in most if not all states, it is part of the court system.20 At the very least, as a matter of policy, the practical effects of Williams have been a dilution in fundamental principles of fairness, and checks and balances in governmental powers.

Congress should reform the federal grand jury.21 Meanwhile, it has become all the more important for courts to exercise their supervisory powers at trial, where they clearly can do so, with special vigor.

Congressional Remedies Do Not Go Far Enough
After considerable debate, Congress enacted the Hyde Amendment to the Justice Department's most recent appropriations bill.22 This measure allows for the wrongfully prosecuted to recoup costs and fees of the travail, if the court deems a prosecution to have been vexatious, frivolous, or brought in bad faith.23

House Judiciary Committee Chairman Henry Hyde (R-IL) has been a leader in seeking to enact thoughtful legislation that would restore balance to the government-versus-citizen equation. Despite the high regard with which he is held on both sides of the aisle, the Hyde Amendment was diluted through Justice Department lobbying so that in its current format that statute is now closely modeled on the Equal Access to Justice Act (EAJA) (except that the burden of proof under the Hyde Amendment is now placed on the defendant to show that a prosecution was without justification). Both statutes impose a short -- 30-day -- time period after final judgment to seek reimbursement, cap the hourly rate of defense counsel, and exclude wealthier individuals and corporations from their purview.24

It is not clear how much of a deterrent these types of statutory solutions really provide in curbing the overzealous prosecutor. Few EAJA cases have gotten much notoriety, and total awards are relatively small, even in the aggregate. And most problematic, the consequences of abusive tactics are not felt personally by those who engage in them.25

The Solution: Holding Government Lawyers to the Highest Standards
The first and most important task may be overcoming the cynicism of so many lawyers in and out of government to whom concern for "fairness" somehow signifies weakness. It is a cynicism that government lawyers should not have the luxury of acting upon. In reality, a commitment to fairness is a highly reliable sign of strength and confidence in the merits of one's position, and it is usually those who fear the fairness of the forum who most fear outcomes based on merit.

Most lawyers who have worked as prosecutors or civil trial lawyers for federal government agencies have had the experience of standing before a court and uttering the words, "I represent the United States of America." It's an experience that should carry with it feelings of pride and humility, to say nothing of awesome responsibility. Senior lawyers in government enforcement agencies who do not inculcate that sense of responsibility, but teach young prosecutors that they are engaged in a personified game of "gotcha," are very much at the root of the current crisis in public confidence in the justice system. Perhaps if the Justice Department devoted more training time to mandatory ethics classes for lawyers it would translate into a smaller caseload for the Office of Professional Responsibility.

Government lawyers, first and foremost, are lawyers who are -- or should be -- subject to the ethical rules of conduct applicable to all members of the bar, with one exception: the standards for assuring fairness and total objective truthfulness in proceedings is higher, not lower, for government lawyers and prosecutors. When prosecutors and civil enforcement agencies bring cases that are baseless, or take positions that are vexatious, or are lacking in good faith, or cut corners in discovery,26 or are not fully candid with the court, judges should not hesitate in using the same mechanisms of sanctions and ethical oversight imposed regularly on non-government lawyers. This may be the only way to overcome the substantive procedural and institutional barriers that insulate the ruthless, incompetent or irresponsible prosecutor from effective oversight, and to attract the attention of his or her superiors.

As we know, the Supreme Court has shown itself increasingly reluctant to permit the dismissal of indictments on the grounds of such prosecutorial misconduct as the government's suppressing exculpatory evidence at the grand jury stage,27 although the courts have established that "bad faith" in the context of law enforcement includes a "reckless disregard for the truth."28 And although it can hardly be gainsaid that prosecutors have a duty to ascertain and disclose evidence in favor of the accused,29 judicial admonitions rarely result in disciplinary action inside the agency affected.30

Accordingly, in the name of prosecutorial discretion, defendants have been tried up to five times -- even after one conviction was overturned for prosecutors' failure to turn over exculpatory evidence, including statements from eyewitnesses that contradicted their courtroom testimony -- on the same murder charge when prosecutors cannot secure a conviction.31 Virtually manufactured "expert" evidence, subsequently thrown out when the alleged "expert" died, left one defendant in jail for three years for a crime he did not commit.32It is time for courts to personalize the remedy for misconduct of government lawyers, so that those who declare, "I represent the United States of America," are not able to use that potent sword as a shield to protect against personal misconduct.

Recently, a controversy has erupted over whether Justice Department lawyers are bound by state codes of ethics and analogous local federal court rules of practice. The issue stems from rules that restrict contact by lawyers with parties known to be represented by counsel, including corporate parties. In essence, the government is seeking to exempt its own lawyers from state and federal court ethical restraints in ways that would go far beyond issues of witness contact.33 Courts, thus far, have been unsympathetic to this government effort at unilateral exemption from the rules of ethics.34

There is now pending in the House of Representatives a very popular, bi-partisan bill that would make it plain that the government may not exempt its lawyers or other agents (e.g., Internal Revenue Service (IRS), and Federal Bureau of Investigation (FBI) investigators) from these state bar and federal court rules of conduct. It would also subject charges of federal prosecutorial misconduct to independent oversight, rather than the Justice Department's own, self-policing office. The bill, H.R. 3396, was introduced by the senior Republican in the House, Joseph M. McDade (R-PA), along with his Democrat colleague John Murtha (D-PA). Congressman McDade suffered his own eight-year ordeal of government investigation and trial on RICO charges before finally being (quickly) vindicated by a jury. The bill has, in just a few months, garnered over 160 co-sponsors, including key members of the House leadership and a dozen committee chairmen. This legislation is long overdue.

But until it is enacted, the short term remedy we propose is enhanced judicial oversight of the personal behavior of lawyers representing the government. This proposal is not new. It has roots that go back more than six decades. In 1940, Justice Robert Jackson, addressing the Second Annual conference of United States Attorneys, said, "[A] citizen's safety lies in the prosecutor who . . . seeks truth and not victims."35 Five years earlier, in Berger v. United States,36 the Supreme Court reversed the conviction of a defendant because of the prosecutor's misconduct and held:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . He may prosecute with earnestness and vigor -- indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

The standard that the Berger Court articulated for prosecutors has been echoed and broadened in many decisions since. Defense lawyers challenging prosecutorial conduct, even if it falls short of heinous wrongdoing such as withholding evidence or suborning perjury, should remind courts of the prosecutor's duty: the recurring theme in the cases is that government attorneys -- both criminal and civil -- are held to a higher standard than private attorneys.

For instance, in Freeport-McMoRan Oil & Gas Co. v. FERC, the court condemned the government attorney for pointlessly refusing to settle a case, stating that "government lawyers have obligations beyond those of private lawyers."37 These obligations extend to both prosecutors and government civil lawyers; the court pointed out, as a matter of ethics, that EC 7-14 requires government lawyers to refrain from instituting or continuing litigation that is unfair. This has been noted as well by other Justice Department and Executive Orders prohibiting government lawyers from "continuing litigation that is obviously pointless, that could easily be resolved, and that wastes court time and taxpayer money." The court concluded, "We find it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that sometimes trump the desire to pound an opponent into submission."38

Similarly, the District of Columbia District Court awarded attorneys' fees to a senior citizens group that had challenged an agency's procedural rules for resolving certain Medicare disputes, noting that the appellate court's holding that the agency's tactics and timing in withholding revised rules violated EC 7-14 and government attorneys' "higher responsibility" to seek justice.39 And in an individual Social Security benefits dispute, attorneys' fees were awarded because of the agency's blanket policy to deny all benefits regardless of merit. Citing the disingenuity of the government's lawyers, the court wrote:

Any ethical and procedural obligation of a private attorney to be fair to opponents and candid with the court is enforceable when the litigant is represented by an attorney for the government.40

The court imposed a higher standard under the EAJA than is provided by Rule 11, intended to insure the reasonableness of the government's position and "to encourage the attorney to exercise his or her mind and conscience in deciding whether the suit is worth prosecuting or defending."41

Analogously, in the criminal context prosecutors should be held to the same, and arguably higher, standards as government civil lawyers. After all, prosecutors wield extraordinary power in comparison to private lawyers:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated. . . . [He] can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. . . . While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.42

When defense counsel identify a pattern of borderline conduct by prosecutors, from improper witness contact, to misrepresentation of the evidence in pleadings and motions, to selective prosecution accompanied by unseemly media press conferences or leaks, to ostensibly undue pressure on witnesses to "turn" and provide untruthful testimony in return for promises of leniency, to the distortion of minor, essentially regulatory violations into criminal prosecutions of individuals, there should be little reluctance in characterizing this type of abuse and overzealousness as a violation of the prosecutorial special duty to be fair, as well as adversarial.

Fairness
Fairness, of course, is a subjective standard. But the conscious abuse of power to obtain a distorted result is the essence of unfairness. It need not rise to the level of a constitutional tort or deprivation of process to constitute a violation of the government lawyer's duty to conduct himself fairly. Manipulation of the regulatory apparatus is a good example of conduct that should be brought to a court's attention.43

When the Equal Employment Opportunity Commission (EEOC) prosecuted a groundless case, the United States District Court for the Southern District of New York not only dismissed it but imposed a monetary sanction, under Rule 11, on the attorney who signed the pleadings, finding that "the same ethical considerations should delimit the grounds of activity for both private and public lawyers. . . . [An] attorney charged with the public's interest, if anything, should be more circumspect in the initiation of the type of litigation where too often the charge is equated with 'conviction' in the mind of the public."44

Limited Immunity For Prosecutors/Investigators
Apart from sanctions available to courts, which should be urged on them when prosecutors engage in conduct beyond mere zealous representation, there are private avenues of redress available about which defense counsel should, from time to time, remind their prosecutorial cousins.

While prosecutors enjoy broad immunity when acting as prosecutors, that immunity is considerably more limited when they also play "Colombo," and become involved at the investigatory stage. The prosecutor's role at that point is markedly different from his or her post-indictment, advocate role. As the Supreme Court has held, "A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested."45 Given the difficulty in mounting a frontal attack on the basis of claims of unconstitutional selective prosecution, indirect methods of challenging misconduct are all the more important.46 When prosecutors overstep these bounds, private remedies, under the civil rights statutes and Bivens actions, among others, should be considered.47

Obligations of Independent Counsel
Perhaps nowhere is it more important for prosecutors to operate from a firm understanding that they are bound by ethical proscriptions and not boundless discretion than in connection with the device of the Independent Counsel.48 The Ethics in Government Act of 1978 gives these special prosecutors "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice."49

However, since these special prosecutors work autonomously and independently of the Department of Justice, they:

operat[e] in an area where so little is law and so much is discretion. . . . What would normally be regarded as a technical violation . . . may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile -- with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment.50

Precisely because of the independent counsel's relative isolation and autonomy, the distinction between investigative and adversarial roles should be the lodestar for these individuals during pre-indictment investigation, with restraint, neutrality, and impartiality guiding their fact-finding efforts.

There is no reason that all of the ethical rules that apply to other government lawyers, as well as the limits on immunity that apply to investigative lawyers, should not be available for their excesses as well.

Highest Standard of Fair and Ethical Behavior
No element of our proposal -- that the courts and Congress, with the aid of a vigilant defense bar, focus more directly on the personal and ethical obligations of prosecutors -- should be controversial. Nor is our analysis motivated by a reflexive "anti-government" orientation. Just the opposite. There is no good faith argument to be made for not holding government lawyers to the highest standards of fair and ethical behavior. It is a position the Department of Justice and other enforcement agencies should embrace. Perhaps they will only do so when the courts and Congress insist upon it. We think the courts and Congress should insist upon it now.

Notes
1. Berger v. Hanlon, 129 F.3d 505 (1996).

2. See, e.g., Checkosky v. SEC, 1998 U.S. App. LEXIS 6179 (D.C. Cir. 1998); Upton v. SEC, 75 F.3d 92, 97 (2d Cir. 1996).

3. See Marvin G. Pickholz, Securities Crimes, (Clark Boardman Callagan 1993), especially, Chapter 3: Parallel Proceedings.

4. For a good summary of overlapping criminal statutes in an area heavily regulated by comprehensive criminal and administrative schemes, see John K.Villa, Banking Crimes, (Clark Boardman Callagan 1998). In Wachtel v. OTS, 982 F.2d 581 (D.C.Cir. 1993), Judge Silberman, in criticizing the agency's "bizarre," "convoluted," and "nearly frivolous" argument, observed that the agency lawyers were exercising "excessive zeal" and not "creative lawyering" in creating an atmosphere for bank defendants not unlike that which existed against "Hollywood screenwriters in the early 50s."

5. See, e.g., Hudson v. United States, 118 S. Ct. 488 (1997) (finding that Double Jeopardy does not bar civil and criminal prosecutions for the same conduct).

6. United States v. Linden Beverage Co., 1996 WL 455845 (W.D. Va. 1996).

7. United States v. Williams, 504 U.S. 36, 38 (1992).

8. See Robert Heller, Selective Prosecution and the Federalization of Criminal Law: The Need for Meaningful Judicial Review of Prosecutorial Discretion, 145 U. Pa. L. Rev. 1309 (1997) (discussion of potential for abuse overlapping federal/state jurisdiction to prosecute the same crime in light of severity of federal sentencing guidelines).

9. See, e.g., United States v. Williams, 746 F. Supp. 1076, 1082 (D. Utah 1990) (Sentencing guidelines severely limit discretion of courts. Broad arrest and charging discretion of police and prosecutors gives them de facto sentencing power) aff'd and remanded, 963 F.2d 1337 (10th Cir. 1992).

10. United States v. Davis, 15 F.3d 526, 529 (6th Cir. 1994)(citation omitted); see also United States v. Howard, 13 F.3d 1500, 1503 (11th Cir. 1993); United States v. Andersen, 940 F.2d 593, 596 (10th Cir. 1991).

11. United States v. Lin, 101 F.3d 760, 765 (D.C. Cir. 1996); United States v. Lopez-Flores, 63 F.3d 1468, 1475 (9th Cir. 1995) cert. denied, Hernandez v. U.S., 516 U.S. 1082 (1996); United States v. Hubbard, 22 F.3d 1410, 1420 (7th Cir. 1994).

12. United States v. Boshell, 728 F. Supp. 632, 637 (E.D. Wash. 1990), vacated, 952 F.2d 1101 (9th Cir. 1991); United States v. Kikumura, 918 F.2d 1084, 1119-1120 (3d Cir. 1990) (concurring opinion)(expressing concern that government's manipulation of charge and sentencing encouraged by sentencing guidelines illustrates problem of lack of judicial discretion); United States v. Miller, 910 F.2d 1321, 1332 (6th Cir. 1990)(sentencing guidelines "invite the prosecutor to indict for less serious offense which are easy to prove and expand them in the probation office"); United States v. Malik, 16 F.3d 45, 52 (2d Cir. 1994).

13. United States v. Parcel of Real Property Known as 6109 Grub Road, 886 F.2d 659, 660 (3d Cir. 1989). See also United States v. James Daniel Good Real Property, 510 U.S. 43, 52 (1993).

14. For a thorough discussion of the asset freeze and pre-judgment attachment remedies available to banking agencies utilized in litigation, see Keith R. Fisher, Statutory Construction and the Kaye, Scholer Freeze Order, in Defending Bank & Thrift Directors & Professionals 471 (Warren L. Dennis and Ellen B. Kulka, eds., Practising Law Inst. 1994). See Rep. Henry Hyde, Forfeiting Our Property Rights: Is Your Property Safe From Seizure 5-15 (Cato Institute 1995) for an excellent and insightful discussion of the forfeiture asset crisis. See also the excellent treatment in the book by James Bovard, Lost Rights: The Destruction of American Liberty, Chapter 2, 'Seizure Fever:' The War on Property Rights (St. Martin's Press 1994).

As has been discussed often in The Champion, Chairman Hyde has an important and popular civil asset forfeiture reform bill pending, H.R. 1835, aka the Manager's Amendment to H.R. 1965. It should be passed. But it is being strenuously challenged by the DOJ, on behalf of various governmental agencies who are hooked on their status quo ability to self-appropriate assets through forfeiture of private property without effective checks and balances or due process restraints.

15. See 12 U.S.C. 1818 (c); 15 U.S.C. 78u-(d)(3)(c).

16. See, e.g., United States v. Spiegel, 995 F.2d 138, 141 (9th Cir. 1993).

17. California Federal Bank v. United States, 39 Fed. Cl. 753, 754 (1997).

18. Judge William J. Campbell, Eliminate the Grand Jury, 64 J. Crim. L. & Criminology 174 (1973).

19. U.S. v. Williams 504 U.S. 36 (1992).

20. See generally, e.g., Susan W. Brenner, Is The Grand Jury Worth Keeping?, 81, 5 Judicature, 190, 194-195 (March-April 1998).

21. See, e.g., Gerald B. Lefcourt, Need for Grand Jury Reform: High Time for a Bill of Rights for the Grand Jury, The Champion, 5 (April 1998).

22. Pub. L. No. 105-119, sec. 111 Stat. 2440 (1997), at section 617. See, e.g., Elkan Abramowitz & Peter Scher, The Hyde Amendment: Congress Creates a Toehold for Curbing Wrongful Prosecution, The Champion, at 22 (March 1998).

23. Id.

24. Pub. L. 105-119 (1997), codified 18 U.S.C. 3006A (1998) (Hyde Amendment); 28 U.S.C. 2412 (1997) (Equal Access to Justice Act). The legislative history of Rep. Hyde's amendment demonstrates a firm intent to ensure prosecutors are as accountable as other lawyers to obey the law.

25. United States v. Fourteen Various Firearms, 899 F. Supp. 249, 253 (E.D. Va. 1995); Equal Access to Justice Act, DOJ Annual Report (1995) (Annual awards total less than $10 million).

26. For an in-depth survey of the current judicial view of the government's discovery and other obligations under the Federal Rules of Criminal Procedure, see S. Demske, M. Tyler, L. Fullerton, Twenty-Sixth Annual Review of Criminal Procedure, 85 Geo. L.J. 983 (1997).

27. See Williams, supra note 19.

28. Franks v. Delaware, 438 U.S. 154 (1978).

29. Kyles v. Whitley, 514 U.S. 419 (1995).

30. United States v. Kojayan, 8 F.3d 1315, 1324 (9th Cir. 1993) (Court criticizes absence of DOJ action in light of sanctions); United States v. Engel, 15 F.3d 623, 626 (7th Cir. 1993) (Judge Posner criticism of DOJ "quality control").

31. Kyles, supra note 29; see also, Pamela Cole, Tried and Tried Again, ABA Journal at 38 (April 1998)(collecting five cases).

32. See Buckley v. Fitzsimmons, 509 U.S. 259 (1993).

33. See The Criminal Law Reporter, 62 CrL. 2043 (January 14, 1998) (DOJ Proposal).

34. See United States ex rel. O' Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998); In the Matter of Howes, 940 P.2d 159 (N.M. 1997).

35. Robert H. Jackson, The Federal Prosecutor, reprinted in Ethical Considerations in Prosecution, 4 (John J. Douglass, ed., National College of District Attorneys Inc. 1977).

36. 295 U.S. 78, 88 (1935).

37. 962 F.2d 45, 47 (D.C. Cir. 1992). See also California Federal Bank, supra note 17.

38. Freeport, 962 F.2d at 47-48 (emphasis added). See also United States v. Witner, 835 F. Supp. 208, 214-15 (M.D. Pa. 1993) (recognizing that government attorney must be held to higher standard than private attorney). EC 7-14 provides:

A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer not having such discretionary power who believes there is lack of merit in a controversy submitted to him should so advise his superiors and recommend the avoidance of unfair litigation. A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results.

Model Code of Professional Responsibility EC 7-14 (1981).

39. Gray Panthers v. Bowen, No. 77-488, 1986 WL 68479 at *3 (D.D.C. Dec. 1, 1986). Other sanction cases that defense counsel should be aware of include: Association of Am. Physicians and Surgeons v. Clinton, 989 F. Supp. 8 (D.D.C. 1997); California Federal Bank v. United States, 39 Fed. Cl. 753 (Fed. Cl. 1997); Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196, 196-98 (5th Cir. 1993); Fleischer v. Resolution Trust Corp., 1994 U.S. Dist. LEXIS 18972 (D. Kan. 1994); Washington Bancorporation v. Said, 812 F. Supp. 1256 (D.D.C. 1993); Silverman v. Erlich Beer Corp., 687 F. Supp. 67, 69-70 (S.D.N.Y. 1987) (attorney representing government must be held to higher standard, especially where bringing charges quasi-criminal in nature).

40. Zimmerman v. Schweiker, 575 F. Supp. 1436 (E.D.N.Y. 1983).

41. Id.

42. Jackson, supra note 35, at 2. See also Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978) (noting potential for "individual and institutional abuse" as a result of prosecutors' broad authority). See also United States v. Smith, 1998 U.S. Dist. LEXIS 1037 at *2 (D.N.J. 1998); United States v. Marshank, 777 F. Supp. 1507, 1512 (N.D. Cal. 1991).

43. See Williams v. Sullivan, 779 F. Supp. 471, 472 (W.D. Mo. 1991) (Court condemns "kafkaesque reasoning" of government counsel and finds that "a special duty [is] imposed" on government lawyers to seek justice and develop a full and fair record," citing Model Code of Professional Responsibility, E.C. 7-14, and Jones v. Heckler, 583 F. Supp. 1250, 1256, note 7 (N.D. Ill. 1984)).

44. EEOC v. Waterfront Commission, 665 F. Supp. 197, 200 (S.D.N.Y. 1987) (later removing sanction when it learned that the sanctioned attorney was not actually the person responsible, the court admonished that the case should "serve to put government attorneys on notice . . . that they will be held to the highest standards of the bar." Id. at 201). See also EEOC v. DataPoint Corp., 457 F. Supp. 62 (W.D. Tex. 1978) (attorneys' fees increased against EEOC, citing EC 7-14, when EEOC continued to litigate claims after they were shown to be groundless, causing defendant the expense and burden of defense).

45. Buckley, supra note 32 (prosecutor's misconduct during investigative stage entitled to qualified immunity, not absolute immunity, as is allowed for misconduct during prosecutorial stage).

46. United States v. Armstrong, 517 U .S. 456, 463-466 (1996) (describing the rationales for erecting barriers to such claims and for giving prosecutors wide discretion and presumption of legality).

47. See, e.g., Buckley, supra note 32 (42 U.S.C. 1983); Kalina v. Fletcher, 118 S. Ct. 502 (1997) (42 U.S.C. 1983); Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997)(Bivens).

48. See Morrison v. Olson, 487 U.S. 654, 660 (1988).

49. 28 U.S.C. 594(a).

50. Morrison, supra note 48, at 732 (Scalia, J. dissenting



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