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From beginning of cases to end, rule changes led to misconduct November 22, 1998 New laws and court rulings over the past two decades have made it easier for federal law enforcement officials to arrest, convict and imprison the guilty. Critics say a lack of safeguards has also increased the chance that innocent people will be snared or have their rights violated. Here is a summary of some of the most significant changes. Investigations Sting operations. In 1974, Congress authorized sting operations, which allow federal agents to set up an illegal enterprise with the goal of luring in real criminals and then arresting them. A lack of safeguards has led to abuses, such as the 1984 case in which federal agents talked automaker John DeLorean into a drug deal that might save his business. A jury acquitted him, saying federal agents entrapped an innocent man. Thornburgh Rule. Former Pennsylvania Gov. Dick Thornburgh served as U.S. Attorney General from 1988 to 1991. In 1989, he issued a memo saying that ethics rules that bar associations established in the areas where federal prosecutors worked did not bind the prosecutors. Attorney General Janet Reno made the memo official policy in 1994. Opponents said it allowed federal prosecutors to engage in conduct — such as contacting a criminal suspect without his lawyer being present — that might cause private attorneys to face disbarment. But legislation attached to this year’s federal budget bill, which U.S. Reps. Joseph McDade, R-Scranton, and John Murtha, D-Johnstown, sponsored, requires the department to end the practice, though the legislation delays implementation for six months. The Justice Department already has begun efforts to kill it. Forfeiture. Like money laundering, federal forfeiture statutes passed in 1990 were aimed at getting at the assets of big-time criminals. Forfeiture allows federal prosecutors to file civil suits to seize property if it can be linked to a criminal activity — even if the owner of the property is never convicted of a crime. Because the standard of proof is lower in a civil suit, the statute was supposed to give federal officers a powerful tool against illegal drug trafficking, but in a series published in 1991, The Pittsburgh Press found that federal agents have broadly abused forfeiture laws and that the homes, cars and cash of ordinary people are most often the targets of forfeiture. An amendment to the law that sought to safeguard the innocent was passed last year, but the measure was watered down under Justice Department pressure. So, despite intense lobbying by opponents of these one-sided actions, little has changed. Exclusionary rule. From 1914 to 1984, the Supreme Court had a simple rule for police who violated the Fourth Amendment of the U.S. Constitution in any search or seizure: Evidence obtained would be excluded from trial. But Congress, tired of criminals being released on "technicalities," approved a law in 1984 that provided for an exception to the exclusionary rule: Evidence would be allowed into a trial if officers believed in good faith that they had acted properly in a search or seizure. That has caused defense lawyers and constitutional scholars to lament that there are more good-faith exceptions than there are rules of exclusion. Search warrants. Prior to 1987, police needed clear and convincing evidence that a crime had been committed before a judge would issue a search warrant. Under new laws and court rulings, officers can get a warrant based on the word of an informant who doesn’t even have to be named. In 1984, the Supreme Court allowed evidence obtained through a search warrant not supported by probable cause to be used in court, so long as it was "issued by a detached and neutral magistrate." Congress then approved new laws adding more bite to the ruling. In his dissent, Justice John Paul Stevens wrote that the ruling meant the court’s destruction of the Fourth Amendment’s guarantee against unreasonable searches and seizures was now complete. Anti-terrorism. The Anti-Terrorism and Effective Death Penalty Act of 1996 allows the death penalty for certain federal crimes and sharply curtails a defendant’s rights in some federal proceedings and appeals. For example, the law allows the government, unilaterally, to designate "terrorist" organizations and makes it a felony to support even the lawful and humanitarian activities of such organizations. It also permits the president, using undisclosed and even illegally obtained evidence, to designate as terrorists aliens residing in the United States and to deport them, even if they have committed no crime. The law also explicitly prohibits the FBI from investigating people because of their views, affiliations or other First Amendment activity. Wiretaps. The Anti-Terrorism and Effective Death Penalty Act of 1996 also expands the use of roving wiretaps for investigations and allows federal agents to tap any telephone calls of suspects for as long as 48 hours without a court order. This covers cellular telephones and situations where suspected criminal organizations use call-forwarding to hinder the government’s ability to find them. Grand juries. A federal grand jury, which usually is composed of 23 people, hears accusations that a federal prosecutor presents to determine if enough evidence exists to indict a suspect for a crime. Since the defense is not allowed rebuttal, this proceeding gives prosecutors tremendous power. The late U.S. Supreme Court Justice Learned Hand lamented that "a good prosecutor could indict a ham sandwich." While judges overseeing grand juries may hear motions on the conduct of prosecutors in the secret proceeding, such motions are seldom granted, and a recent Supreme Court ruling adds to a prosecutor’s power: It said that federal courts do not "possess broad supervisory powers over grand jury proceedings." Trials Perjury. In 1935, the Supreme Court ruled in Mooney vs. Holohan that prosecutors may not admit testimony they know to be false. That ruling has been refined and expanded several times, but increasing reliance on the so-called "harmless error" rule of modern law has further diluted it. Under this doctrine, unless a defense lawyer can prove to a judge that perjured testimony would have changed the verdict — even if that perjured testimony was known to prosecutors — a criminal defendant gets no relief. Brady Rule. A 1963 ruling set the standard for what prosecutors must do to help a defendant. Called "discovery," it requires prosecutors to turn over to defendants any evidence that might help prove them innocent or show the biases and criminal records of witnesses against them. The Supreme Court also has ruled that if a prosecutor improperly withholds discovery material, a conviction should be reversed only if the verdict would have been different had that material been known at the trial. To ensure against discovery violations, some federal prosecutors, as recently as 15 years ago, opened all of their files on a case to the defendant’s attorney. Over the past decade, prosecutors have intentionally withheld discovery evidence in hundreds of cases, but only in extreme cases have verdicts been overturned. Sentencing New rules. In 1987, Congress passed legislation that effectively switched the authority for sentencing a criminal defendant from a judge to a prosecutor. The law establishes sentencing guidelines that must be followed when a defendant is found guilty, and those guidelines are based on the severity of the crime. For example, a defendant found in possession of a few ounces of drugs would get a more lenient sentence than a defendant who possessed a few pounds. Congress believed the guidelines would ensure fairness and stop defense attorneys from shopping for lenient judges. However, the guidelines have fostered a new form of misconduct called sentencing entrapment, where prosecutors seek to boost the charges against a defendant up front to ensure he will face a maximum sentence. In a drug conspiracy, for example, a person may be found guilty for simply discussing a drug deal. So informants trying to snare a suspect make sure the quantities discussed are huge, to ensure maximum sentences. This gives prosecutors more clout in negotiating a plea bargain. Early release. In 1987, the U.S. Sentencing Commission dramatically cut the amount of time that was permitted to be cut from a prisoner’s sentence for good behavior. Before this change, a prisoner who behaved in prison could reduce his sentence by at least one-third and sometimes by as much as one-half. Under the new rules, a convict may earn only 54 days of "good time" per year. When added to stiff mandatory sentencing laws that Congress adopted, the cut in good behavior time has swelled the population of federal prisons and produced another unintended result: a surge in federal prisoners willing to lie against defendants in court. The reason? A witness who helps win a conviction usually gets a sentence reduction at the request of the prosecutor, one of the few avenues left for prisoners seeking to cut their prison time. Appeals Appeal limits. The Antiterrorism and Effective Death Penalty Act of 1996 makes it much more difficult for a federal prisoner to file an appeal once a year has passed after his conviction. This has forced prisoners to rush their appeals and sometimes miss presenting the most compelling evidence for a new trial. One example: The Post-Gazette found that when the government withholds evidence that might help a defendant, it is often uncovered long after a conviction through a Freedom of Information Act request to federal law enforcement agencies. These agencies sometimes take years to respond to a FOIA request. The new appeal limits make it much more difficult for this new evidence to get before an appeals court. Oversight Office of Professional Responsibility. This office within the Justice Department is supposed to oversee the conduct of federal agents and prosecutors, but little oversight is happening. The office opened official investigations into only 9 percent of the 4,000 complaints filed against federal law enforcement officials during the past 20 years. The office found that only 4 percent of those complaints had merit. Since the office only discloses specifics of its investigations on rare occasions, it is not clear what punishment might have been meted out. Congress. Last summer, the U.S. House approved the Citizens Protection Act, 345-82, a major legislative victory for Pennsylvania Reps. John Murtha, D-Johnstown, and Joseph McDade, R-Scranton. But only one provision survived as part of the federal appropriations bill that Congress approved last month: the repeal of the Justice Department’s Thornburgh Rule, which had exempted federal prosecutors from abiding by the ethics rules in the states in which they operate. Killed were provisions that would have established an independent oversight board to monitor federal prosecutors, and sanctions for prosecutors who committed misconduct. A section that would have included independent counsels such as Kenneth Starr under the bill’s provisions also was killed. Last year, a bill that House Judiciary Chairman Henry Hyde, R-Illinois, introduced was signed into law, allowing victims wrongfully prosecuted by the federal government to recover attorney fees and other defense costs, but under Justice Department pressure, it was watered down to require that any such action be filed within 30 days of the completion of the federal action, and it provides for no sanctions against those who commit abuses.
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