One of the frustrations faced by many businesses is that after the perpetrators of crimes have been identified, the District Attorney’s office will not pursue the case. One option is for victims to sue the DA in an attempt to compel him to prosecute, but this would be costly and proving dereliction of duty would be difficult. The DA is effectively immune. Other options are more promising. The law should encourage (and prosecutors’ offices should welcome) private preparation of criminal cases. Prosecutors’ budgets simply do not allow vigorous prosecution of all the available criminal cases. Logic and evidence show that in private law, plaintiffs win about 50 percent of the cases that are tried. This is because the parties are more likely to settle lopsided cases out of court. Public prosecutors, by contrast, win far more than 50 percent of their trial cases because they have budget constraints and so elect whenever possible to go to court with only the cases they are likely to win. Victims should be allowed to hire private attorneys and other professionals to prepare cases against the accused and thereby extend public prosecutors’ resources. The attorneys can be retained pro bono (for the good) or for compensation. This is already done in some white collar cases where financial complexities exceed the prosecutors’ expertise, such as complicated embezzlement cases, some oil and gas swindles and cases involving the misapplication of construction trust funds.
At present, many cases are never prosecuted for one reason or another. For example, in about 40 percent of federal embezzlement and fraud cases, charges are dropped because of insufficient evidence to convict, given the resources at hand.85 In some instances prosecutors “deputize” attorneys to try cases, too. Many private attorneys have criminal experience as former prosecutors or public defenders. A logical extension of private preparation for trial is the complete privatization of the prosecutor’s job by contracting out. Private attorneys, of course, are often appointed on a pro bono basis for criminal defense. Private attorneys could be deputized for a single trial or for ongoing prosecutor’s work, either pro bono or under contract.
The same remedies are available to finance criminal prosecution as civil litigation. Commercial insurance policies could be expanded or created for this market. Associations and community groups could cover these costs for members and subscribers.
In Gideon v. Wainwright (1963), the United States Supreme Court held that because the assistance of counsel in a criminal case is a fundamental necessity, the Constitution requires appointment of attorneys to represent “any person haled into court, who is too poor to hire a lawyer.”
Today, the promise of Gideon is threatened — in virtually every jurisdiction — by severe budget cuts resulting in understaffed defense offices and excessive caseloads. Meanwhile, prosecutors’ budgets keep escalating and law-makers keep inventing more draconian statutes. Adequate funding for indigent defense is a priority concern for NACDL, as reflected in the tireless efforts of our Indigent Defense Committee and our own full-time staff Indigent Defense Coordinator. Indigent defense is also a central concern of our Legislative Committee and our Amicus Committee. The Association’s most recent addition, a full-time Death Penalty Resource Counsel, commits NACDL to leading a redoubled campaign opposing executions and needless and barbaric taking of human lives.
The NACDL Prosecutorial Misconduct Committee is co-chaired by Hugo Rodriguez of Miami, Florida, Marvin Miller of Alexandria, Virginia, and Robert Hooker of Tucson, Arizona. The Committee serves to assist our communities and the legal system by shedding light on misconduct and abuse on the part of authorities. The American people have an abiding faith in the fairness of our nation’s criminal justice system. Exposure of prosecutorial abuse helps to cleanse the system, impart balance and restore fundamental fairness for citizens accused of crime. Eternal vigilance is the price of liberty. We seek your assistance in helping us ensure justice and due process for those accused of crime by promoting the proper and fair administration of criminal justice. If you were involved in or have knowledge of a documented case of law enforcement or prosecutorial abuse, share it with us by sending us the court decision, appellate decision, or other documentation. We will share verifiable cases with others so that these are no longer hidden from the public but brought out into the light of day and exposed.
The Problem: Personalization of Prosecution Invites Excess: Once the phrase “prosecutorial discretion” conjured up an image of sober, reflective and mature exercise of well-informed judgment, usually characterized by a certain concern for public confidence in the system. Now the phrase has increasingly become synonymous with the arbitrary targeting of subjects based on criteria ranging from political hardball, to prosecutorial ambition, to the allure of urgent newspaper headlines and television promos (“News at 11”) that, like magic pixie dust, can grace a faceless civil servant with instant celebrity status. To be sure, most prosecutors we encounter work long hours with little glory trying to bring about a just result. The problem is at the margins — but the margins are growing. Increasingly, the high public profile of a target or the attention-grabbing nature of the alleged wrongdoing may have more to do with a matter’s “prosecutorial merit” than the strength of the evidence or the seriousness of the crime. It is axiomatic by now that whenever prosecutorial effort becomes more focused on “getting” a particular person than pursuing a particular, identifiable allegation, as is increasingly the case, it alters the very architecture and mission of the prosecutor’s office. The personalization of prosecution — “let’s get this guy” — invites excess. The problem has become endemic, and the solution will need to go beyond ad hoc displays of judicial exasperation and oversight. It requires careful, synoptic analysis of the extent and nature of prosecutorial excess, especially in connection with the prosecution of relatively minor white-collar allegations covered by sweeping and overlapping civil or administrative remedial schemes. A congressional solution is necessary to truly curb the over-breadth of discretion and power given to individual lawyers who happen to hold the job of counsel for the government. Until then, however, we believe that it is the job of a conscientious judiciary, at the aggressive urging of defense counsel, to restore traditional notions of responsible exercise of power contained in both the case law and the applicable codes of ethics that apply to government lawyers with equal or greater force than they apply to the rest of the bar. There are many existing tools available to judges who are serious about curbing cumulative prosecutorial excess and exercising the inherent authority given to them to bring about “a just result.”
A popular myth has grown up about the way prosecutors and government civil enforcement lawyers operate when they are “doing it by the book.” The assumption is that there are “orthodox” methods of building a case that savvy prosecutors use, as though one can build a case like selecting recipes from a cookbook: isolate subjects; threaten “small fry” with “jail time” for minor infractions to obtain their “cooperation” in testifying against the “big game;” increase pressure on a defendant by targeting family members if necessary to “turn” them; wire “friends” and colleagues with radio transmitters, recorders, and video cameras; infiltrate the target’s business or organization with informers; nail down evidence of tangentially related but easy to prove “crimes” as a way of reaching elusive targets of prosecution; seek to disqualify or even investigate a defendant’s lawyer to impair or cripple an effective defense. Not to mention more conventional tactics such as wiretaps, surveillance, mail intercepts, pre-trial forfeiture, asset freezes, and broad search warrants.
It is difficult to argue against the aggressive use of these tools and tactics in connection with prosecutions aimed at breaking up terrorist bombing plots, espionage cells, massive fraud by government contractors, corrupt judges, dishonest union chiefs, big time money launderers, international narcotics operations, organized crime families, vicious racial hate crimes, widespread and violent gang activity, or the exploitation and abduction of children. From Eliot Ness to Clint Eastwood, public sympathy has always been on the side of zealous (sometimes even overzealous) law enforcement when the government operates as the citizenry’s bulwark against the sociopathic, the violent, and the rapaciously dishonest.
The past several years, however, have brought about an unmistakable sea change in how things work, both in identifying targets of prosecution and in deploying the full artillery barrage of available “by the book” tools when a 22-calibre pistol will do nicely. The use of large weaponry on small targets cheapens the law and the public’s view of those who enforce it.
What has been lost is a sense of proportionality and identification of priorities. Like most processes calling for the exercise of judgment and discretion, the decision to mobilize the vast array of weapons available to the government requires a thoughtful balancing test. Tactics must be tailored to the goal. When external factors such as publicity, ego, and ambition intrude and impact on the decision-making process, the phrase “doing it by the book” can take on a new and pernicious meaning.
The new-found role of prosecutors and defense lawyers as celebrities has brought about an entirely new level of interest in the role of lawyers in the law enforcement process and a powerful new source of external influence, on prosecutors especially. Once, even in sensational trials such as the Gotti prosecutions and the World Trade Center bombing cases, the defense lawyers and prosecutors were all but unknowns as the cases unfolded. No longer. From the Simpson case, the Kennedy-Smith case, “Baby M,” the Menendez brothers, to the advent of Court TV, with its Cochran, Rivera, and their professional siblings (to say nothing of prime time dramas based on lawyers), the lawyers have become the story. And not only those lawyers actually involved in a particular high-profile case, but an ever-growing Greek Chorus of lawyer-experts turned talking heads who provide endless commentary ranging from sagacious to silly. Today, even independent counsel retain press agents and spin meisters. Courts should not be oblivious to the phenomenon of such prosecutorial abuse, and should use the traditional ethical and procedural safeguards that bind the conduct of all lawyers in instances when government counsel step over ethical lines.
Congress has responded in a variety of ways to public concern about crime, often without a sound appreciation or even a rudimentary understanding of the relationship between the crime, the punishment, and the process. Congress has defined ever-increasing numbers of business practices as constituting criminal conduct, often in ways that are so inartful that it is difficult to separate that which is lawful from that which is “just business.” Slapdash revisions of complex regulatory schemes can leave prosecutors and regulatory agencies with the “discretion” to take what are essentially regulatory violations, such as issues of labeling, weights and measures, and billing classifications, and convert them into indictable offenses. Often, the criteria are so vague that courts, let alone defendants, cannot figure out what is prohibited. Similar broad and overlapping enforcement schemes exist in connection with securities regulation, health care fraud, government contracting, and environmental compliance. Thus, prosecutors enjoy a combination of the broadest possible set of investigatory tools and a smorgasbord of Title 18 and civil remedial measures with which to threaten targets and those around them. We have, in effect, criminalized the regulatory regimes of government such that:
A 70-year-old defendant is criminally prosecuted for environmental reporting errors for alleged discharge of pollutants exceeding permit limits, based largely on the testimony of a co-employee in exchange for a more lenient sentence. A motion for a new trial based on the government witness’ statements that his testimony was false is denied, though a new trial is ultimately granted on the court’s failure to instruct the jury as to the weight it could give evidence of the defendant’s good character. An investor is indicted for intentionally and knowingly making two false financial statements to banks; one financial statement carried a disclaimer regarding the allegedly misleading information and the other was found to be “improper” because of an accounting method the government disputed. The defendant was prosecuted for intentional misconduct though all relevant information had been accounted for in defendant’s tax returns and through defendant’s testimony in a bankruptcy proceeding as it had been described in the financial statements.
The advent of the federal Sentencing Guidelines has removed judges’ ability to restore balance and proportionality at the punitive phase of prosecutions by exercising educated judgment in fashioning flexible relief based on the qualities of the person convicted and the totality of the circumstances. The unintended consequence has been the aggregation of enormous power in the hands of the prosecutor who can come to the bargaining table armed with unilateral ability to stack the deck by deciding how to frame and characterize the charges. While this charging power was always present, it is now accompanied by a rigid set of inexorable sentencing consequences that no amount of advocacy or forensic showing can counter.
Congress has armed prosecutors and many regulatory agencies with a range of pre-hearing remedies that, as applied, are both cataclysmic –even to the innocent — and difficult to defend against. Whether in the use of forfeitures in actions against property, or pre-judgment asset freeze, the very existence of these devices gives a prosecutor an awesome in terrorem negotiating tool. Equally troubling are the broad pre-judgment asset freeze and restitution powers given to administrative offices such as the OTS and the SEC. Courts have upheld agency pre-hearing orders that for all practical purposes pauperize a defendant before he or she has had an opportunity to mount a defense.16 In these circumstances, “justice” depends wholly upon the government lawyers’ exercise of good faith, judicious restraint and fairness — qualities that do not necessarily come with the job. This is a lesson that more than a half dozen Justice Department lawyers learned when the Chief Judge of the Federal Claims Court, citing “old fashioned” ideas about the duty of government lawyers, excoriated them for taking positions that do “no credit to the United States.” Finally, the inherent nature of the grand jury process itself, although far from being “new,” has departed so far from its original purpose as a restraining influence on the British Crown, that it has been taken to new limits as a tool to sculpt indictments, with little critical supervision from any source. Technically, judges supervise grand juries and are available to hear motions challenging a prosecutor’s conduct. But judges do not oversee day-to-day operation of the grand jury, and abuse is an open secret that defense lawyers are often powerless to combat. Representing witnesses before a grand jury, or the person being investigated, has become a well orchestrated, even cynical, minuet.
The first and most important task may be overcoming the cynicism of so many lawyers in and out of government to whom concern for “fairness” somehow signifies weakness. It is a cynicism that government lawyers should not have the luxury of acting upon. In reality, a commitment to fairness is a highly reliable sign of strength and confidence in the merits of one’s position, and it is usually those who fear the fairness of the forum who most fear outcomes based on merit. Recently, a controversy has erupted over whether Justice Department lawyers are bound by state codes of ethics and analogous local federal court rules of practice. The issue stems from rules that restrict contact by lawyers with parties known to be represented by counsel, including corporate parties. In essence, the government is seeking to exempt its own lawyers from state and federal court ethical restraints in ways that would go far beyond issues of witness contact. Courts, thus far, have been unsympathetic to this government effort at unilateral exemption from the rules of ethics.