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March 1999 Twisted Justice: Prosecution Function in America Out of Control By Jack King
Recent investigative reports in major newspapers across America document that excess by prosecutors, both federal and local, is on the rise and often in flagrant violation of the very laws prosecutors are sworn to defend. From Boston to Los Angeles, from Seattle 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 —
Other recent projects worth mentioning are Joan Biskupic’s and Mary Pat Flaherty’s 1996 Washington Post series on federal sentencing, “Justice by the Numbers,” showing how prosecutors exploit the Federal Sentencing Guidelines; Mark Curriden’s 1995 National Law Journal Special Report on informant abuse, “Secret Threat to Justice,” which earned him a Champion of Justice Award. NACDL’s own magazine, The Champion, has decried prosecutorial excess and misconduct for years, most recently with a very thoughtful article in the July 1998 issue, “Curbing Prosecutorial Excess: A Job for the Courts and Congress,” by former Deputy Attorney General Arnold I. Burns, Warren L. Dennis and Amybeth Garcia-Bokor, all of Proskauer Rose LLP. Sentencing ‘Reform’ Federal prosecutors in particular got several power boosts from Congress in the 1980s in the form of exponentially expanding annual budgets and so-called sentencing “reform.” Changes in federal sentencing law in 1984 and 1986 gave prosecutors — rather than judges or juries — the sole power to say who does time and who does not. Now it is the prosecutor also who determines the length of a defendant’s sentence, by his charging decisions, and often later on a motion to reduce the sentence for “substantial assistance in the investigation or prosecution of another.” As a result, a federal prosecutor a few years out of law school, rather than a federal judge with years of cumulative experience, decides who goes to prison. Take, for example, the case of Gambino crime family capo Salvatore “Sammy Bull” Gravano. In 1991, Gravano was facing life without parole, charged with being John Gotti’s underboss in the Gambino crime family. Life in the federal system means just that — the convict leaves prison in a pine box. Federal prosecutors made Gravano a deal he could not refuse: plead guilty to a single racketeering count, testify, and walk out of prison a free man. During the Gotti trial, Gravano testified under oath (probably truthfully) that while a member of the Gambino family, he committed or ordered 19 murders. In consideration of his testimony, prosecutors requested he be sentenced to just five years in federal prison, and he served 51 months. Looked at another way, Gravano served only two months and three weeks for each confessed murder! Gravano is now a beneficiary of the federal witness protection program and is a paid “organized crime consultant” to the Federal Bureau of Investigation and the Department of Justice. Cases such as that one inspired Pittsburgh Post-Gazette reporter Bill Moushey’s 1996 investigative series “Protected Witness,” in which he explored the federal witness protection program, a secretive bureaucracy that rewards high-level, often violent, organized crime figures and drug kingpins who turn in their underlings. While investigating “Protected Witness,” the Post-Gazette says, Moushey uncovered more than 100 cases in which defendants, lawyers and witnesses questioned the motives and actions of federal agents and prosecutors. He expanded his research, contacting families, academics, advocates and congressmen; interviewing lawyers, many of them former federal agents and prosecutors themselves, and hundreds of federal inmates. He had soon collected more than 14 boxes of misconduct complaints, based on an examination of more than 1500 cases coast-to-coast. It was that research that became the basis for his recent series “Win at All Costs,” which ran in the Post-Gazette November 22 through December 13, 1998. With all the power that federal prosecutors now have, it is surprising that some still operate with the “win at all costs” mentality that prompted the reversal in United States v. Berger (295 U.S. 78 (1935)). Yet that is what Moushey and others have found, in federal and state courts all over the country. “Hundreds of times during the past ten years, federal agents and prosecutors have pursued justice by breaking the law,” Moushey says in his series. “They lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas and convictions. Rarely were these federal officials punished for their misconduct. “Victims of this misconduct sometimes lost their jobs, assets and even their families. Some remain in prison because prosecutors withheld favorable evidence or allowed fabricated testimony. Some criminals walk free as a reward for conspiring with the government in its efforts to deny others their rights.” Strong words, but Moushey backs them with case after case of injustice. “Perjury,” Moushey concludes, “has become the coin of the realm in federal law enforcement.” He quotes a former U.S. Attorney, appointed by Ronald Reagan for the Middle District of Florida. “It’s a result-oriented process today, fairness be damned,” said Robert Merkle, who served from 1982 to 1988. "The philosophy of the past ten to fifteen years [is] that whatever works is what's right.” Moushey’s series sparked letters of protest from Deputy Attorney General of the Criminal Division Eric Holder and Harry Litman, U.S. Attorney for the Western District of Pennsylvania, both of which were printed by the paper as guest editorials. Moushey was not allowed to respond, but Holder’s editorial was accompanied by an editor’s note advising that the Justice Department was repeatedly given opportunities to express its views before and during publication of the series and declined to comment. In that editorial, which ran January 3, Holder complained that “[T]he series simply rehashes allegations made by defendants trying to get their convictions overturned — allegations that are often exaggerated or simply fabricated, and in many cases already have been rejected by the courts.” “I stand by the basic premise of the series,” Moushey told The Champion. “I feel much stronger today than I did the day of publication, because I have received thousands of packages of materials [from readers] that bolster my case that some prosecutors are out of control.” Where Holder’s and Litman’s editorials take issue with specific facts of many of the dozens of cases Moushey describes, he still complains that the Justice Department refuses to recognize the big picture. “The Justice Department refutes my series with a bunch of vague statements that do not deal with any of the main issues of the series. At the same time, they have yet to provide answers to any of the specific questions I posed, not only to Janet Reno, but to prosecutors across the nation.” ‘Word of a Snitch’ What if there aren’t any big crimes going on in a jurisdiction; the kind of busts that make for headlines, and promotions and re-elections? Prosecutors and police have a ready-made solution to that problem — go out and make one. Nobody questions that laying a trap for unwary criminals is a smart way to catch a crook. But when police and prosecutors rely on cooperative criminals to run the show, innocent people have been trapped. “Time after time,” Moushey found, “former criminals, con artists, dope smugglers, perjurers and killers were employed to help catch suspects in exchange for reduced sentences or even six-figure payoffs. With straight faces, prosecutors insist in court that none of these witnesses have an incentive to lie.” Of many examples provided in the Post-Gazette series, the case of Mitchell Henderson and Loren Pogue is illustrative. Henderson was a former cop, deep in debt, alcohol and drugs. Pogue was a real estate developer he once worked for in Costa Rica. Henderson was promised up to $250,000 by the U.S. Drug Enforcement Administration (DEA) to set up a sting operation to catch Latin American drug smugglers. After six months, he managed to snare only one, a low-level Colombian. He then turned to his old acquaintance. Henderson told Pogue he knew businessmen interested in investing in property in Costa Rica. Pogue agreed to close the deal. For two hours, he 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, but so what? — had approved the land deal. Second, he said that Pogue had been a willing participant, knowledgeable of the drug connection from the start. According to DEA and court documents Pogue obtained after conviction, the government knew that Henderson was making it all up. Despite this evidence, prosecutors maintained that everything Henderson said was true. To actually feel the emotional pain and bewilderment of otherwise ordinary people sent away for life in prison on the word of a snitch, filmmaker Ofra Bikel’s Frontline documentary, “Snitch,” which aired January 12, is a must-see. One of the central figures in the film is Clarence Aaron, a college student and athlete who had friends who sold drugs. For $1500, Aaron drove his friends and a cousin on a single dope run. Later, when his friends were caught dealing, prosecutors presented them with their only option under the federal mandatory minimum sentencing scheme — snitch or go away for life. They snitched on Aaron. The four former friends who testified against Aaron all had prior criminal records and all faced life without parole. One, the admitted “kingpin” of the crack ring, was sentenced to 12 years, two others got five years, and Aaron’s cousin walked. With no prior record and no physical evidence presented in court, Aaron got three life terms for driving a car for a $1500 payment. Under federal controlled substance conspiracy and sentencing laws, the lowest, most peripheral figure in a drug conspiracy is tried and sentenced the same as the leader — unless he snitches. By the time the deals were cut, there was no one else left for Aaron to snitch on. “What makes it the worst case I ever had was there was absolutely no cocaine introduced into evidence, there was no cocaine,” says Aaron’s defense lawyer. “The police had no cocaine, the FBI had no cocaine, there was no scientific evidence, no fingerprints, nothing. The entirety of the case was based upon the testimony of what they call ‘cooperating individuals.’” The word of a snitch. Explains Eric Sterling, former counsel to the House subcommittee on crime in the 1980s and now president of the Criminal Justice Policy Foundation in Washington, “These mandatories [mandatory penalties] came in the last couple of days before the congressional recess [in 1986]. No hearings, no consideration by the federal judges, no input from the Bureau of Prisons. . . . “If the mandatory minimums were a result of haste and excess by Congress, conspiracy as applied to these mandatories was completely by oversight and accident,” says Sterling. “It was submitted as part of a simple technical correction’s amendment. No one even thought at all about what the implications were of . . . applying conspiracy.” “The War on Drugs and its use of informants have had devastating consequences on our justice system, the fabric of our society, and the family,” says Frontline producer Bikel. “Making informing the only way for the accused to escape the full force of a sentence is a dangerous idea which is eroding the individual’s rights in the judicial process.” Loosening Ethical Restraints Last year, many Americans were shocked by the alleged treatment of Monica Lewinsky by federal prosecutors assigned to Independent Counsel Kenneth Starr’s office. As Lewinksky later testified under oath before the Whitewater grand jury, prosecutors and federal agents surprised her at the Ritz-Carlton hotel, held her practically incommunicado in a room for hours, and implied that there would be prosecution if she called her attorney, Francis Carter. They also suggested she might have to wear a recording device in order to catch presidential adviser Vernon Jordan in an incriminating conversation. Yet America should be even more shocked to learn that this type of tactic is standard operating procedure for turning citizens into federal informants and witnesses. Contacting witnesses and potential cooperating defendants without their lawyers present is considered a valid tactic by many in the Justice Department, even though DOJ guidelines discourage it, and it is considered a violation of the legal ethics codes of every state. In August 1998, the House of Representatives overwhelmingly approved the Citizens Protection Act of 1998 which would forbid this practice. The bill became part of the annual appropriations package passed in October, with a provision that the Justice Department have 180 days to come into compliance with state bar ethics rules before the law goes into effect (in April 1999). (See Legislation, March issue.) Justice Department opposition to the law puzzles Arthur Burns, Deputy Attorney General under Ronald Reagan, according to Moushey. Burns drafted the guideline directing federal prosecutors to adhere to state ethics rules. “Look at this way,” Burns explained to the Post-Gazette, “[pretend] there is a case, United States v. Burns. That means it’s the whole FBI against Burns — its investigators, its forensic accountants and everything else the government has. It’s already one-sided. . . . Let’s have an even playing field.” In his article in The Champion, Burns elaborated: “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.” False Witnesses Thou shalt not give false witness against thy neighbor. In the old days, a false accusation of wrongdoing could end with the innocent accused being stoned to death. Because the Ninth Commandment is thousands of years old, one surmises that lying snitches were around before Moses. But the study of prosecutorial misconduct by Ken Armstrong and Maurice Possley in the Chicago Tribune found that the two main reasons for reversals of homicide convictions over the past 36 years have been suppression of evidence of innocence and knowing use of false testimony by prosecutors. The reporters used the landmark 1963 U.S. Supreme Court ruling, Brady v. Maryland which held that it is a due process violation for prosecutors to withhold material exculpatory evidence from the defense as the starting point. In researching the series, the reporters examined approximately 11,000 court rulings in Lexis-Nexis and Westlaw, about 8700 news stories, law review articles, books and other sources. The magnitude of the problem forced them to limit their series to homicide conviction reversals — 381 since 1963 to be exact, “thrown out because prosecutors withheld evidence favorable to the defendant or knowingly used false evidence.” “We tried to point out an attitude that’s far more prevalent than the average court watcher would be aware of,” Possley said in an interview. “[Prosecutors] have incredible responsibility. Unfortunately, a lot of them take it kind of casually. They might think that person across the room is guilty, but that person still deserves a fair trial. It’s incredibly tragic when an innocent person is convicted by prosecutorial misconduct, but I think it’s equally tragic when a guilty person is unlawfully convicted, because of the effect on the victim, his family, the system. Sometimes they have a perfectly good case, but it’s [ruined by] overkill. Just ego.” Because of their focus on homicide cases — which are usually prosecuted in state courts — Armstrong and Possley uncovered only a few reversed federal convictions, notably the notorious El Rukn gang prosecutions, in Chicago, where a number of murder and drug conspiracy convictions were reversed after evidence came to light that federal agents and prosecutors failed to disclose to the defense that their cooperating witnesses were receiving special favors such as conjugal visits and constantly tested positive for drugs while in federal custody. The Tribune series notes that the Supreme Court has given prosecutors a great deal of immunity from civil lawsuits for misconduct, saying that sufficient checks on prosecutors already exist — disbarment and criminal prosecution. But Armstrong and Possley failed to find a single prosecutor who was disbarred for engaging in misconduct in a criminal case, even suborning perjury. Only two prosecutors have been convicted of criminal charges for such misconduct, they found — and both of those convictions, one arising out of an Ohio rape case and the other in a New York robbery case, were misdemeanor convictions that resulted in $500 fines each. “We generally condone a great deal of misconduct when we think it serves the ultimate ends of justice,” Northwestern University law professor Lawrence Marshall told the Tribune. “Many players in the system — judges, defense lawyers, prosecutors — know some of the stuff that happens, but nonetheless tend to turn a blind eye. There’s a feeling that that is how it works, that it’s legitimate to bend the truth sometimes when you are doing it with — quote, the greater good, end quote — in mind.” Power to Harm In February and March of 1998, Andrew Schneider and Mike Barber, of the Seattle Post-Intelligencer, published “The Power to Harm,” their extensive five-part series on the Wenatchee, Washington child sexual abuse witchhunt, for which they received NACDL’s Champion of Justice Award for Journalism. In that series, 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. Thirty were convicted. Most were innocent. One defendant was convicted of molesting a child in Wenatchee for six years even though he was not in the area for three of those years. Over a period of five months, Schneider and Barber interviewed 237 people and examined more than 23,000 pages of police and child protective services (CPS) reports, court documents and medical and counseling records. While prosecutors had all the money they needed — including a $141,000 grant from the state’s Department of Community, Trade and Economic development — the lawyer contracted to supply public defenders for the accused (all of whom were indigent or working poor) had to use his personal credit card to pay them. Some of the appointed lawyers had never defended a felony case and were given no money to hire investigators and experts of their own. Records showed that most of the children denied sexual abuse, only making accusations after hours of interrogation. Several children said their only knowledge of sex crimes came from things that the investigating detective and social workers alleged that their friends, siblings and parents said. Cases were built on the wisdom of CPS supervisor Tim Abbey: “It’s well known that children are telling the truth when they say they’ve been abused. But [they] are usually lying when they deny it.” The investigating detective routinely destroyed notes taken by police and CPS interrogators after “incorporating” them into his reports. Of 43 persons arrested, only one, Gary Filbeck, was a bona fide sex offender — convicted twice, once for incest involving his daughter and once for indecent exposure. Filbeck cooperated with authorities and agreed to testify to keep himself out of prison. He had a motive to lie — as a three-time loser he faced a potential life sentence. In exchange for his testimony, Filbeck pleaded guilty to second-degree assault and served no jail time. Above the Law In his 1996 book on the U.S. Department of Justice, Above the Law, investigative journalist David Burnham criticized his fellow members of the media for their tendency to be too cozy with prosecutors, calling reporters “lapdogs” when they should be “watchdogs.” “Despite the recent spate of coverage of misconduct, prosecutorial discretion is the least covered thing in American government,” Burnham told The Champion. “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.” Still, there’s reason to be optimistic. Burnham, who is co-director of Syracuse University’s Transactional Records Access Clearinghouse (TRAC), which creates databases of federal law enforcement and prosecutorial statistics, recently conducted a three-day seminar in Washington, D.C. on covering federal law enforcement, which was attended by reporters from across the country. Far more reporters wanted to sign up than there was room for, and another seminar is planned. Burnham’s lesson: “Cops essentially do what they’re told. The prosecutors have all the power.” | |||||||||
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