Winning at Any Cost: Prosecutorial Excess Distorting America’s Justice System
Washington, DC (February 9, 1999) -- A slew of recent investigative reports in major newspapers across America document that excess by prosecutors, both federal and local, are on the rise and often in flagrant violation of the very laws prosecutors are sworn to defend.
“The problem of prosecutors breaking the law is more frightening, and does more damage to society, than any common criminal,” said Denver attorney Larry S. Pozner, President of the National Association of Criminal Defense Lawyers regarding the recent media attention. “Some prosecutors have come to believe that they are exempt from the code of legal ethics, that the rules of civilized conduct don’t apply to them. We look to prosecutors to enforce the law, but who will protect us when the prosecutor becomes the lawbreaker?”
From Boston to Los Angeles, from Seattle back again to Pittsburgh and all points between, intensive media exposes reveal that our nation’s vaunted “war on crime” has become a war on the rights of American citizens. And the dark side of that war is finally coming to light: Prosecutors who cheat. Prosecutors who cut corners. Prosecutors who knowingly offer false testimony and fabricated evidence. Prosecutors who conceal evidence of innocence from the defense and the court. Prosecutors who trample defendants’ rights, and the Constitution. Why? Because to them, winning isn’t everything — it’s the only thing.
That win-at-any-cost attitude is a national problem, occurring in federal, state and county courthouses across the country.
Thanks largely to investigative reporters who have worked to uncover the problem and the editors who backed them, the American people are learning a sad truth: the war on crime has become a war on the Bill of Rights. Specifically:
- Last month, the Chicago Tribune ran a penetrating five-part series by Ken Armstrong and Maurice Possley, “Trial & Error: How Prosecutors Sacrifice Justice to Win,” focusing on prosecutorial misconduct since the Supreme Court’s 1963 misconduct decision in Brady v. Maryland. The series identified 381 murder cases reversed on prosecutorial misconduct grounds such as withholding of exculpatory evidence, improper argument, suborning of perjury, and the like. The series also noted that this month, for perhaps the first time in U.S. history, three former DuPage County, IL, prosecutors will go on trial on obstruction of justice and perjury charges for framing an innocent man for a murder he did not commit. Rolando Cruz went to death row for the murder of 10-year-old Jeanine Nicarico, a prima facie case of attempted murder by the police and prosecutors. But very few overzealous prosecutors are themselves brought to justice. “If convicted,” the Tribune notes, “the three former prosecutors . . . would be the first in the nation to be found guilty of a felony for knowingly using false evidence to send an innocent man to Death Row.”
The series, “Trial and Error,” can be read or downloaded from the Chicago Tribune’s site on the World Wide Web at http://chicagotribune.com/news/nationworld/ws/0,1246,21398,00.html.
- In December, Pittsburgh Post-Gazette reporter Bill Moushey published a 10-part series on how, in the editor’s words, “hundreds of times during the past 10 years, federal agents and prosecutors have pursued justice by breaking the law.” Moushey catalogued case after case of federal prosecutors, such as the case of informant Mitchell Henderson and citizen Loren Pogue.
Henderson was a former cop, deep in debt, alcohol and drugs who was promised up to $250,000 by the U.S. Drug Enforcement Administration to set up a sting operation to catch Latin American drug smugglers. Pogue was a real estate developer he once worked for in Costa Rica. After months of failure as a freelance undercover informant, Henderson turned to his old acquaintance. He told Pogue he knew businessmen interested in investing in property in Costa Rica. Pogue agreed to close the deal. For two hours, Pogue sat and listened as federal agents, pretending to be Colombian drug smugglers, talked about building a landing strip and using the property to run drugs.
Defense attorneys, prosecutors and judges all know that mere presence at the commission of a crime isn’t a crime. If there had been real Colombian drug smugglers in the motel room, Pogue would have been known as a “witness.” Instead, Pogue became the sole defendant in a major money laundering case. Pogue admits he should have walked out as soon as drugs were mentioned. Instead, he stayed long enough to get arrested.
At the trial, Henderson perjured himself. First, he told the jury that a Colombian drug dealer — not that he knew any — had approved the land deal. Second, he said that Pogue had been a willing participant, knowledgeable of the drug connection from the start. But according to DEA and court documents Pogue obtained after the conviction, the government knew that Henderson was making it all up. Despite this evidence, prosecutors maintain that everything Henderson said was true.
The series, “Win at All Costs,” may be read or downloaded from the Pittsburgh Post-Gazette’s website at http://www.post-gazette.com/win/default.asp.
- Last spring, investigative reporters Andrew Schneider and Mike Barber of the Seattle Post-Intelligencer published their five-part series on the Wenatchee, WA, child sexual abuse witch hunt, “The Power to Harm.” They documented the wrongful arrests and prosecutions of 43 persons charged with 27,726 counts of child abuse in 1994 and 1995 in a small town in Washington state. Thirty were convicted; seventeen remain in prison and are challenging their convictions; all were alleged to be part of a child-sex ring operated out of a Pentecostal church. Their accusers were a crusading detective and his foster daughter. Sixty children were torn from their families. Seventeen were put up for adoption. Reprints of the series are available from NACDL Public Affairs.
Many of those convicted remain in jail, dependent upon a cadre of volunteer attorneys working to regain their freedom. Many have been released, but the damage to their families and their reputations in the community is irreparable.
- January 12, the Public Broadcasting System aired a Frontline special, "Snitch,” exposing how the government’s reliance on informants has resulted in major injustices in the War on Drugs. The show examined how federal prosecutors use — or misuse — tough mandatory sentencing to send relatively minor drug offenders to prison for decades on the word of criminal informants who willingly say anything to implicate others — including innocent Americans — in order to reduce their own prison time.
- In December, the Los Angeles and San Diego papers ran front page stories about San Diego prosecutors so determined to convict four gang members of murder that they lavished an informer and star witness with extravagant privileges while in jail and deliberately hid that fact from defense counsel and the court. Prosecutors provided such amenities as a private cell with color TV and a shower, and conjugal visits in the prosecutor’s office with the informer’s wife and three of his girlfriends, and concealed these inducements from defense counsel. According to the judge who held the post-conviction hearings, the prosecutors portrayed the informant as “a witness sitting alone in his cell, unattended, remorsefully awaiting judgment, hoping his confession and willingness to testify against truly bad people would in part redeem him.” That, the judge said, was “clearly a lie . . . that went uncorrected at trial.”
“Despite the recent spate of coverage of misconduct, prosecutorial discretion is the least-covered thing in American government,” investigative reporter David Burnham recently told NACDL. In Above the Law, his highly-regarded 1996 expose of the U.S. Department of Justice, Burnham criticized his fellow journalists for their tendency to cozy up to prosecutors. “The press has written a lot about bad cops, a lot about judges, but prosecutors, in the main, have only been covered through their leaks and announcements,” he said.
As Justice Louis Brandeis warned in Olmstead v. United States in 1928, “To declare that in the administration of the criminal law the end justifies the means -- to declare that the government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution.”