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Out of control (cont.) The rules have changed When this investigation began, the term prosecutorial misconduct would have elicited mostly blank stares. Only a few of the misconduct cases the newspaper was tracking in its nationwide research had generated more than a few lines in the back pages of local newspapers. Independent Counsel Kenneth Starr changed that. His investigation of President Clinton has generated intense public debate about federal prosecutors and their tactics. Many of the issues Starr’s probe has raised parallel concerns found in this investigation — from the huge pools of money available for federal investigations to the lack of safeguards and oversight to the use and abuse of grand juries. One key component of how federal law enforcement is supposed to work has received only passing notice. In rulings reiterated over and over during the past 50 years, the Supreme Court has made clear that federal agents and prosecutors have a broader duty than simply investigating, capturing and prosecuting criminals. They also are entrusted to ensure that the constitutional rights of suspects and defendants are not abused. "The function of the prosecutor under the federal Constitution is not to tack as many skins of victims as possible against the wall," said the late Supreme Court Justice William O. Douglas. "His function is to vindicate the rights of the people as expressed in the laws and give those accused of crime a fair trial." There is every reason to believe that most federal agents and prosecutors respect Douglas’s edict, but this investigation found a significant minority do not, and their numbers seem to be on the rise. "The problem is at the margins — but the margins are growing," said an article titled "Curbing Prosecutorial Excess," which Arnold I. Burns co-wrote in the July 1998 issue of The Champion, a publication of the National Association of Criminal Defense Lawyers. Burns is no left-wing zealot. A lifelong Republican, he was appointed deputy attorney general by Reagan, resigning that office in the wake of accusations about the conduct of Burns’ boss, Attorney General Edwin Meese. There is a fragile balance between the rights of a defendant and the power of the government, Burns said in a recent interview. That balance has shifted, resulting in misconduct in every phase of federal criminal cases — from the investigation, to the grand jury, to the arrest, to the trial, to the sentencing, he said. Despite Douglas’s eloquent admonition to the contrary, federal law enforcement officers charged with enforcing the law too often decide they’re above it. The powerful prosecutor Some would argue that’s nothing new. Federal law enforcement officers, after all, have always wielded great power. U.S. courthouses attract the politically ambitious, who can trade on a U.S. prosecutor’s crime-fighting stature to pursue higher office. "The [federal] prosecutor has more control over life, liberty and reputation than any other person in America," said former Attorney General and Supreme Court Justice Robert H. Jackson. And that was in 1940. But Jackson would have found the array of crime-fighting tools available to federal agents and prosecutors today staggering — from racketeering to money laundering to conspiracy laws. At the same time, Congress has eliminated many of the checks and balances aimed at preventing the abuse of this power, from trimming protections against illegal searches and seizures to punishing people who plead innocent rather than guilty in federal court. A person who fights a federal charge must, by law, receive more prison time than someone who pleads guilty to the same crime. Presidents Reagan, Bush and Clinton have signed on to this new crime-fighting order, and a more conservative Supreme Court has upheld these new laws at almost every turn. The Justice Department — the cabinet agency that is supposed to ensure that these new powers are administrated fairly — has downplayed that role to the point that few complaints about abuse are even investigated. These changes didn’t happen in a vacuum. In the past 20 years, voters have made it clear that they love get-tough-on-crime politicians. A campaign promise to toss drug dealers in prison will trump concerns about fair trials or individual rights every time. Congress, the Justice Department, the electorate and the courts have combined to give this nation’s most aggressive law enforcement agents and prosecutors far more power than they’ve ever had before and few reasons to worry about the consequences of abusing that power. Add political ambition to the mix, and the results are predictable and frightening, Merkle said. A federal prosecutor "is a political animal," he said. "His boss is politically ambitious. He is being pressured for budgetary purposes to get statistics, and that causes them to prosecute absolutely [bogus] cases to get those statistics." Other former federal prosecutors agree. "I like to think that most prosecutors are honest and most agents are honest, but there are unfortunately enough examples of dishonesty cropping up that it is troubling to anybody in this business," said Plato Cacheris, who was born and raised in Oakland and worked eight years as a federal prosecutor before becoming one of Washington, D.C.’s, top criminal defense lawyers. He currently represents Monica Lewinsky. Thomas Dillard, who spent 14 years as an assistant U.S. attorney in Knoxville, Tenn., then four years as U.S. attorney for the Northern District of Florida, said a lack of real world experience among prosecutors also has hurt. "You’ve seen an increase in career prosecutors that you didn’t have 15 years ago, people who never practiced in the private sector," he said. "They sit in this lofty tower with a rather skewed vision of the world. They are on a divine mission, and everything that gets in their way is evil. The ends justify the means." Huge budgets exacerbate the problem. "The war on crime has gotten to the point that all these [prosecutors’] offices are stuffed to the gills with resources," Dillard said. "They have to justify their existence. They go out and make things crimes that weren’t even crimes 10 years ago. "For it to get to the point where prosecutors honestly believe they are immune from state ethical standards, they honestly believe purchasing witness testimony at any cost is OK, and they honestly believe a grand jury is their own little forum, all of that is . . . bizarre." Media attention on crime — federal crime in particular — has become huge. A stream of cable television talk shows has put federal crimefighters in the limelight every night on prime time. Playing to the camera becomes another pressure on law enforcement officers to win at any cost. "The media is always looking for the big crime story, and society in general is always looking for someone to one-up its array of crime," Merkle said. The person seldom heard in all of this is the victim, Merkle said. "People don’t know how they’re being suckered." Nor do federal courts help to prevent misconduct as much as they once did. "The courts used to more consistently monitor both prosecutorial and law enforcement power in general, [but] over the past 10-15 years, the courts have contracted that power to the point of a total nullity," said Bennett Gershman, a former New York State prosecutor who teaches law at Pace University of New York. His law textbook, "Prosecutorial Misconduct," was published last year. "The courts used to be a buffer between prosecutors and the rights of defendants," he said. "They are now simply a rubber stamp." Federal law enforcement officers know that in the pursuit of convictions, they have a key advantage: Their actions will do them no harm. No matter what the misconduct, it is almost impossible for a criminal defendant to sue a federal officer or prosecutor for damages. No matter what the misconduct, the Justice Department rarely disciplines agents or prosecutors who cross the line into unethical or illegal behavior.
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