Sunday, May 10, 2009

President Bush Fired the Wrong Prosecutors

President Bush, Attorney General Alberto Gonzalez, Karl Rove and others in the Bush Administration have been pilloried for firing 7, 8, or 9 federal prosecutors (the actual number seems to vary).

They fired the wrong ones!

Many of the U.S. prosecutors were terminated because they would not carry out Administration policy, which was to crack down on voter fraud. Norm Coleman would probably still be the Senator from Minnesota if Acorn had been reined in.

Others should have been fired because of grossly unprofessional conduct.

Federal prosecutors have much greater power than state and local prosecutors because they have the full weight and resources of the federal government, including the FBI, behind them. The Assistant U. S. Attorneys are the best and brightest graduates of our nation’s top law schools.

Claims of prosecutorial misconduct, and even judicial bias, are often raised by defendants so credence should not be extended to every such claim.

Yet, recent years have shown a number of major ethical violations by several federal prosecutors. They are not limited to a single prosecutor or even a single office. Many, but not all, occurred in the second Bush Administration. Their misconduct is an embarrassment to federal prosecutors, who fully understand their professional obligations..

Their actions rival those of North Carolina’s Mike Nifong in the Duke Lacrosse Players scandal, and other local prosecutors. As an extreme, 80 convictions in Queens between 1989 and 2003 were overturned because of prosecutorial misconduct. Shih-Wei Su, who had been wrongly incarcerated for 13 years, received a check for $3.5 million from New York City. The Second Circuit Court of Appeals found that “the prosecution knowingly elicited false testimony.”

Prosecutors become convinced of the justice and righteousness of their acts, and the guilt or innocence of suspects. They are certain of the guilt of those they choose to prosecute, and may let that belief cloud their professional judgment and perspective.

Most recognize that they are the prosecutor, not the judge or jury. They represent the public, but they are not a private lawyer arduously representing a client. They represent the cause of justice, which means also finding an accused to be innocent. The end does not justify the means. In our system, unlike most of the world, the accused are presumed innocent until proven guilty.

The Supreme Court in the 1935 case of Berger v. United States laid down the marker:

"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, ... is not that it shall win a case,
but that justice shall be done. As such, he is in a peculiar and very
definate sense the servant of the law .... 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 flow 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."

One of their fundamental, professional responsibilities is to disclose exculpatory evidence to defendants. That is the largest failure in many recent cases.

The professional misconduct has led to major outcries by federal judges in recent cases.

My interest was perked by the persistent misconduct of the prosecutors in the corruption prosecution of Senator Ted Stevens of Alaska. The prosecution was not by the United States Attorney for Alaska, but by the Public Integrity Section of the Justice Department.

The Senator with the Bridge to Nowhere may well have been guilty of improper acts in other situations, but the prosecutors had to prove his guilt of the charges file against him. They failed to disclose interview notes of their key witness. These notes of his statements show a vastly different story than he testified to. In addition, a prosecution witness was flown back to Alaska by the Justice Department right before trial because his testimony would have aided the Senator’s case. The Senator was convicted on all 7 counts shortly before the November election, and lost reelection by less than 4,000 votes.

Eric Holder, the new Attorney General, asked the Judge to reverse the convictions, and dismiss the charges. The Judge approved the request, held several prosecutors in contempt, and appointed a special prosecutor to investigate their conduct.

The Chief Judge of the Federal District Court in Massachusetts in January also sharply criticized the “egregious failure” of an Assistant U.S. Attorney to disclose exculpatory evidence to a defendant. Judge Mark L. Wolf noted at least nine cases he presided over in the past two decades in which federal prosecutors similarly withheld important information. The misconduct in several cases led to mistrials and convictions, followed by reversals.

In one case in 2007 he asked the State Bar to pursue disciplinary proceedings against an Assistant U.S. Attorney.

The U.S. Attorney in Boston abruptly resigned in April.

District Court Judge Alan Gold in Miami fined the government $601,795 in April for acting deceptively and “in bad faith” in the prosecution of a doctor acquitted of 141 counts of illegally prescribing painkillers. The prosecutors had secretly investigated and taped the defendant’s lawyers and tried to entrap them in witness tampering charges, using the same parties who were witnesses against the doctor. The jury acquitted the doctor once the recordings were revealed.

Judge Gold reprimanded three Assistant U.S. Attorneys and sent a copy of his 50 page order to the Florida Bar for review. He stated that the U.S. Attorneys Office “exhibited a pattern of win at all cost behavior … that was contrary to their ethical obligations as prosecutors and a breach of their heavy obligation to the accused.”

The U.S. Attorney in Montana filed criminal charges against W.R. Grace & Co. and seven Grace executives for knowingly contaminating the town of Libby, Montana with vermiculite containing asbestos, and then conspiring to cover up the contamination. About 200 residents of the town, population 2600, have died of asbestos diseases and hundreds of others have asbestos caused illnesses. W.R. Grace & Co. is the company made infamous in the book and movie “A Civil Action.”

Judge Donald W. Molloy was unsympathetic to the government’s case from the beginning. Five of his pre-trial motions on behalf of the Grace defendants were overturned by the Ninth Circuit. He suppressed several pieces of the government’s evidence during the trial.

He denounced the government’s star witness, Robert H. Locke, a former Grace executive, during trial, and questioned the practices of the prosecution in front of the jury. The Judge questioned the judgment, ethics and tactics of the prosecution, singling out Kris A. McLean, the U.S. Attorney, for withholding evidence from the defense. He then dismissed charges against four of the execs.

The jury last Friday acquitted the remaining defendants on all charges after deliberating less than two days.

Another federal judge dismissed charges in 2007 against 13 former executives of KPMG, an accounting firm, because the government had pressured the firm into not paying their legal fees in the criminal case alleging they set up illegal tax shelters for clients. The decision was upheld on appeal in August 2008. In essence, the government was trying to coerce the defendants into pleading guilty because they would be unable to afford to defend the cases. The Justice Department changed its guidelines shortly thereafter.

The Justice Department suffered double embarrassment in a 9/11 case. Two North Africans were convicted on terrorism charges in a 2003 trial, but their convictions wee overturned in 2004 because of prosecutorial misconduct. The former prosecutor, Robert G. Convertino, was acquitted in 2007 of charges he had illegally withheld exculpatory photos. The prosecution was also by the Public Integrity Section of the Justice Department.

These misconduct cases are not chargeable to the Obama Administration, although a few may have occurred early in the Administration. One of the greatest contributions Eric Holder, the current Attorney Justice, could make would be to restore professionalism to the Attorney General’s Office. He has made a strong start by dropping the charges against Senator Stevens and by requiring federal prosecutors to be retrained. He also created a working group to review procedures to see if prosecutors have the necessary resources to fulfill their responsibilities.

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