Washington, DC, February 9, 1999 - A slew of
recent investigative reports in major newspapers across America document
that excess by prosecutors, both federal and local, are on the rise and
often in flagrant violation of the very laws prosecutors are sworn to
defend.
“The problem of
prosecutors breaking the law is more frightening, and does more damage to
society, than any common criminal,” said Denver attorney Larry S. Pozner,
President of the National Association of Criminal Defense Lawyers
regarding the recent media attention. “Some prosecutors have come to
believe that they are exempt from the code of legal ethics, that the rules
of civilized conduct don’t apply to them. We look to prosecutors to
enforce the law, but who will protect us when the prosecutor becomes the
lawbreaker?”
From Boston
to Los Angeles, from Seattle back again 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 --
-- Last month, the Chicago Tribune
ran a penetrating five-part series by Ken Armstrong and Maurice Possley,
“Trial & Error: How Prosecutors Sacrifice Justice to Win,” focusing on
prosecutorial misconduct since the Supreme Court’s 1963 misconduct
decision in Brady v.
Maryland. The series
identified 381 murder cases reversed on prosecutorial misconduct grounds
such as withholding of exculpatory evidence, improper argument, suborning
of perjury, and the like. The series also noted that this month, for
perhaps the first time in U.S. history, three former DuPage County, IL,
prosecutors will go on trial on obstruction of justice and perjury charges
for framing an innocent man for a murder he did not commit. Rolando Cruz
went to death row for the murder of 10-year-old Jeanine
Nicarico, a prima facie case of
attempted murder by the police and prosecutors. But very few overzealous
prosecutors are themselves brought to justice. “If convicted,” the
Tribune notes, “the three former prosecutors . . .
would be the first in the nation to be found guilty of a felony for
knowingly using false evidence to send an innocent man to Death Row.”
The series, “Trial and
Error,” can be read or downloaded from the Cichcago Tribune’s site on the World Wide Web at http://chicagotribune.com/news/nationworld/ws/0,1246,21398,00.html.
-- In December, Pittsburgh Post-Gazette reporter Bill Moushey published a 10-part
series on how, in the editor’s words, “hundreds of times during the past
10 years, federal agents and prosecutors have pursued justice by breaking
the law.” Moushey catalogued case after case of federal prosecutors, such
as the case of informant Mitchell Henderson and citizen Loren
Pogue.
Henderson was a
former cop, deep in debt, alcohol and drugs who was promised up to
$250,000 by the U.S. Drug Enforcement Administration to set up a sting
operation to catch Latin American drug smugglers. Pogue was a real estate developer he once
worked for in Costa Rica. After months of failure as a freelance
undercover informant, Henderson turned to his old acquaintance. He told
Pogue he knew businessmen interested in investing in property in Costa
Rica. Pogue agreed to close the deal. For two hours, Pogue 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 — had approved the land deal. Second, he said that Pogue had been a
willing participant, knowledgeable of the drug connection from the start.
But according to DEA and court documents Pogue obtained after the
conviction, the government knew that Henderson was making it all up.
Despite this evidence, prosecutors maintain that everything Henderson said
was true.
The series,
“Win at All Costs,” may be read or downloaded from the Pittsburgh Post-Gazette’s website at http://www.post-gazette.com/win/default.asp.
-- Last spring, investigative reporters Andrew
Schneider and Mike Barber of the Seattle Post-Intelligencer published their five-part series on the
Wenatchee, WA, child sexual abuse witch hunt, “The Power to Harm.” 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 in
Washington state. Thirty were convicted; seventeen remain in prison and
are challenging their convictions; all were alleged to be part of a
child-sex ring operated out of a Pentecostal church. Their accusers were a
crusading detective and his foster daughter. Sixty children were torn from
their families. Seventeen were put up for adoption. Reprints of the series
are available from NACDL Public Affairs.
Many of those convicted remain in jail,
dependent upon a cadre of volunteer attorneys working to regain their
freedom. Many have been released, but the damage to their families and
their reputations in the community is irreparable.
-- January 12,
the Public Broadcasting System aired a Frontline
special, "Snitch,” exposing how
the government’s reliance on informants has resulted in major injustices
in the War on Drugs. The show examined how federal prosecutors use — or
misuse — tough mandatory sentencing to send relatively minor drug
offenders to prison for decades on the word of criminal informants who
willingly say anything to implicate others — including innocent Americans
— in order to reduce their own prison time.
-- In December, the Los Angeles and San Diego papers ran front page stories about San Diego
prosecutors so determined to convict four gang members of murder that they
lavished an informer and star witness with extravagant privileges while in
jail and deliberately hid that fact from defense counsel and the court.
Prosecutors provided such amenities as a private cell with color TV and a
shower, and conjugal visits in the prosecutor’s office with the informer’s
wife and three of his girlfriends, and concealed these inducements from
defense counsel. According to the judge who held the post-conviction
hearings, the prosecutors portrayed the informant as “a witness sitting
alone in his cell, unattended, remorsefully awaiting judgment, hoping his
confession and willingness to testify against truly bad people would in
part redeem him.” That, the judge said, was “clearly a lie . . . that went
uncorrected at trial.”
“Despite the recent spate of coverage of misconduct, prosecutorial
discretion is the least-covered thing in
American government,” investigative reporter David Burnham recently told
NACDL. In Above the
Law, his highly-regarded
1996 expose of the U.S. Department of Justice, Burnham criticized his
fellow journalists for their tendency to cozy up to prosecutors. “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,” he said.
As Justice Louis Brandeis warned in Olmstead v. United States in 1928, “To declare that in the administration of the
criminal law the end justifies the means -- to declare that the government
may commit crimes in order to secure the conviction of a private criminal
-- would bring terrible retribution.”
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