July 21, 2009
"A Parable of Politicized Prosecution"
The title of this post is the headline of this Washington Post column by Jon Entine, who is the author of the new book, "No Crime But Prejudice: Fischer Homes, the Immigration Fiasco, and Extra-Judicial Prosecution" (which was noted in this prior post). Here are snippets that focus on the power of prosecutors:
[T]he justice system wields enormous power, which often depends on extracting plea deals, sometimes from the innocent and often from supposedly deep-pocketed businesses....
We rarely think about the sheer magnitude of power in the hands of government attorneys. They have a fundamental responsibility not to win cases but to ensure justice. It is as much their duty to refrain from improper methods to produce a wrongful conviction as it is to use every legitimate means possible to bring about a just one. But that's not always what happens. Often, government prosecutors have no intention of going to trial. They have perfected a more powerful tactic: exploiting the threat of business losses and manipulating the media to force capitulation.
As in the Fischer case, they use threats of guaranteed jail time under the sentencing guidelines to try to squeeze out guilty pleas. The stakes of a formal indictment (much less a conviction) are too high for most people or corporations to risk. Defendants plead guilty or are found guilty in more than 85 percent of the criminal cases handled by the U.S. attorney's office. The U.S. Court of Appeals rules in the government's favor, at least in part, in more than 92 percent of cases. The deterrents for the accused to not argue its side -- lose your reputation and a little money by pleading out or risk losing everything, including your freedom -- are powerful.
What happens to the innocent when prosecutors abuse their power to further their careers or cater to political expediency? Think of the 2006 Duke lacrosse fiasco, which shattered the lives of many young men. Or the corruption case against Ted Stevens, the former GOP senator from Alaska; the case was overturned by a judge who concluded that he had never seen such mishandling and misconduct by prosecutors. Or the prosecution of the accounting firm Arthur Andersen, found guilty of obstruction of justice in its audit of Enron. The criminal charges were reversed long after the company had dissolved, its 85,000 employees dispersed. All are a testament to the institutional pressures and the personal ambition of prosecutors, with the civil liberties of individuals and the rights of corporations compromised.
At what point do the potential public benefits of vigorous prosecution outweigh the harm when legal protections are suspended?
Most people find it difficult to hold much sympathy for corporations, often forgetting that we depend on a dynamic, competitive economy for our welfare. The victims of overzealous prosecutors and ambitious government agencies are often workers and their families, including many small-business owners who have played by the rules yet now find themselves targets -- businessmen such as Henry Fischer. As Fischer says, "I hope nothing like this happens to you."
July 21, 2009 at 10:50 AM | Permalink
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Some of these prosecutors need to go to jail. Nifong's day long incarceration for contempt of court was a joke.
Posted by: federalist | Jul 21, 2009 11:10:43 AM
Exactly, there is no real sanction for prosecutors who cross the line. Even more than police, prosecutors need to face the possibility of prison for misuse of their office.
Yet instead they are immunized. A criminal cult enterprise indeed.
Posted by: Soronel Haetir | Jul 21, 2009 11:38:53 AM
If the rate of innocence in death penalty cases is roughly 20% (number of executions a year versus exhonorations a year, not a review of the 3000 people on death row), what is the innocence rate in plea bargaining? The police can get anyone to confess to anything, even a criminal defense attorney. Indeed, there are false confessions even in death penalty cases.
The product of the prosecutor is terrible. They fail to prosecute 99 of 100 crimes. And 20% or more of the prosecutions are false. How could one possibly quickly remedy that low quality? The answer is from law school. The prosecution is a product. It will injure people in its ordinary use. Product liability should apply, as should the doctrines of strict liability. Deter the lawyer carelessness.
All immunities are against policy by precluding improvements, and exploding growth of the immune entity. The immunity was justified by the sovereign's speaking with the voice of God. This justification is psychotic and lawless.
Allow all adverse third parties their access to the court when prosecutorial or judge carelessness has injured them.
Posted by: Supremacy Claus | Jul 21, 2009 12:12:01 PM
I find the author's political posturing laughable and there simply is neither logically nor Constitutionally any connection between individual liberties and the supposed rights of corporations. To even talk about them in the same breath is the height of disingeniousness. The author lost me on square one.
Posted by: Daniel | Jul 21, 2009 12:57:09 PM
"The prosecution is a product." I agree with you here SC but I see it less as a product of the law school and more a product of the political system. It is the people either directly or indirectly that hire the prosecutor. Perhaps the employers too should be taken to the court basement and shot.
Posted by: Daniel | Jul 21, 2009 2:02:27 PM
Daniel: This lawyer stuff, but I meant to say a complaint is a product like a toaster.
Here are some reasons:
With references available.
Posted by: Supremacy Claus | Jul 21, 2009 3:54:51 PM
I will state from the outset that I am a former federal prosecutor, and as such come to this topic both with inside knowledge and an arguable institutional bias. That being said, there are several points about this article that I believe need to be made:
--The entire article itself seems to be an example of "plane crash" journalism, citing a small number of examples of misconduct as the basis for an indictment of the entire system, while failing to recognize the thousands of meritorious cases pursued every day by honest prosecutors. The headlines are full of examples of human failings in individuals in trusted positions -- politicians who take bribes, doctors who exploit their patients to make money, teachers who molest children, and for that matter, journalists who plagiarize or fabricate their stories. The article thus points out the rather unremarkable fact that in any human endeavor, there are going to be individuals who betray the public's trust in them. This does not mean, however, that the entire system is corrupt or broken, as the author implies. The website for Builder Magazine (www.builderonline.com), a trade publication covering the building industry, recently reviewed the author's book, and summarized it as follows: "The government’s standard refusal to provide details about its investigations or litigation, and the author’s sympathetic acceptance of Fischer Homes’ version of events, make for a retelling of this saga that is gripping but also at times one-sided, repetitious, and polemical." (http://www.builderonline.com/legal-issues/new-book-portrays-fischer-homes-as-victim-of-prosecutorial-abuse.aspx?page=1). As explained further below, I believe the same can be said for the Washington Post article.
--The article asks: "What happens to the innocent when prosecutors abuse their power to further their careers or cater to political expediency?," and cites the overturning of the Arthur Andersen case as an example of this. A simple reading of the Supreme Court's Arthur Andersen decision, however, would have revealed to the author that the conviction was overturned not because the company was "innocent," and not because of prosecutorial misconduct, but because of faulty jury instructions. As the author himself states, Arthur Andersen had more or less failed to exist as a viable entity by the time the Supreme Court handed down its ruling. The government did not pursue the case on remand because there was no company left to prosecute, not out of any recognition of Arthur Andersen's "innocence." (For that matter, on what basis does the author lump Senator Ted Stevens in with the "innocent"? The prosecutors in that case committed a grave Brady error, to be sure, but the withheld evidence in question was only relevant to some of the charges of which Sen. Stevens was actually convicted. That does not excuse the prosecutors' behavior by any stretch of the imagination, but it also does not seem to be a good example of the rights of the "innocent" being trampled.)
--Also with respect to "innocence," the author also fails to mention: (a) that undercover law enforcement agents infiltrated Fischer Homes building sites months in advance, obtaining videotaped conversations in which laborers admitted to being in the country illegally, and at least two individuals acknowledged casually that there were undocumented workers on-site; (b) that the raids in fact resulted in the arrests of large numbers of undocumented immigrants; (c) or that one of Fischer Homes' subcontractors and six of his employees were in fact convicted of felony violations stemming from the hiring of undocumented immigrants. In short, this was not a case in which the government just singled out a company for persecution based on flimsy evidence.
--The article states that prosecutors "use threats of guaranteed jail time under the sentencing guidelines to try to squeeze out guilty pleas." As anyone who reads this blog regularly knows, there is no "guaranteed jail time" under the USSG. Even in the pre-Booker "mandatory" guideline regime, jail time was not "guaranteed," given the availability of departures.
--The article claims that the Fischer prosecution was a "case study in the dangers of politicized prosecution," and that the company was fighting "what appeared to be politically driven prosecutorial antagonists." However, the article does not contain a single piece of fact or evidence to support the author's conclusion that the prosecution had improper motivations. Perhaps these facts are contained in the author's book, but if he is going to use the forum of a national newspaper to criticize the prosecution, it surely would have behooved him to include at least one or two factual examples to support his claims. The author, in fact, commits the very sin of which he accuses the government: making accusations through the media without presenting any proof to back them up. In fact, as the Builder Magazine review noted: "Why [the government] went after the builder remains an unanswered question. Even Entine concludes, after three years of research, that Fischer Homes might have been a government target 'by chance.' " (http://www.builderonline.com/legal-issues/new-book-portrays-fischer-homes-as-victim-of-prosecutorial-abuse.aspx?page=4) This seems a far cry from "a parable of politicized prosecution," as the author claims in the Washington Post.
--The article also states, "As the government's case against Fischer Homes and its associates disintegrated, prosecutors increased pressure on indicted employees to agree to a plea deal -- to perjure themselves -- in return for the charges being dropped." Again, the author provides no facts to support his conclusion. What were the details of these supposedly perjurious plea deals? For example, the government may have proposed that the company and/or the individual employees plead guilty to some sort of blatant regulatory violation, rather than the more serious money laundering and other charges cited by the . Without any facts in the article itself, there is only the word of an author who has placed himself in opposition to the government.
--Another unsupported quote: "Media reports, stoked by government news releases, portrayed Fischer Homes as a greedy corporation cheating Americans out of jobs." In most highly publicized criminal cases, it is the defense camp that does the majority of the speaking to the media -- government press releases are usually limited to an announcement of the arrest, indictment, and/or conviction. The usual response by the government to press inquiries about plea negotiations is, "no comment." What were the alleged government news releases to which the government cites? The "media" apparently is not all biased against Fischer Homes, or the Washington Post wouldn't have allotted the author the space to make his accusations against the government.
--The article states: "Defendants plead guilty or are found guilty in more than 85 percent of the criminal cases handled by the U.S. attorney's office. The U.S. Court of Appeals rules in the government's favor, at least in part, in more than 92 percent of cases." The author seems to imply that these statistics are a symptom of a system gone wrong. However, aren't these the kind of numbers that we would want to see in a system that is working correctly? Look at the converse: Let's say that 85% of government prosecutions ended in acquittals or the government dropping charges -- surely those sorts of numbers would raise much more serious doubts about the government's judgment and motivations. If 92% of trial rulings were overturned in criminal cases, what would that say about the competence of our district judges? Moreover, his glib citation of these statistics ignores nature of most federal prosecutions. Given the general five-year statute of limitations for most federal crimes, federal prosecutors are generally able to take their time, conduct a long-term investigation, and compile large amounts of evidence against their targets before indicting. Given the amount of time and resources that a federal prosecutor can devote to a case before it is even indicted, an equally plausible -- and much simpler -- explanation for the government's success rate is that the government by and large prosecutes the right individuals.
--The author seems shocked and appalled that a prosecutor would use the coercive force of potential greater criminal liability in an effort to convince a defendant to accept a plea bargain to a less serious offense. Yet, this exchange represents the very nature of the plea bargaining process: a defendant accepts lesser punishment to avoid the possibility of greater punishment, and the government is able to expend its resources elsewhere. Regardless of the perspective from which we approach the issue, I believe that most professionals working in the criminal justice field would agree: (a) that the majority of prosecutions (more than 50%, but less than 100%) brought by the government are in fact legally meritorious; and (b) that the amount of resources currently devoted to the judicial system would be woefully inadequate to address the criminal justice system if every prosecution proceeded through trial.
Posted by: former prosecutor | Jul 21, 2009 7:04:34 PM
"an arguable institutional bias". First paragraph of former prosecutors post was all he needed to say but he went on for another 9 proving it.
Posted by: Had Enough | Jul 22, 2009 12:15:05 PM
"Proving it?" How so, Had Enough? If you would point out the errors in my response, I'd be happy to consider them.
Posted by: former prosecutor | Jul 22, 2009 2:59:38 PM
Entine's column is a hopeful sign more Americans are finally catching on to the horror show their justice system has become.
Posted by: John K | Jul 22, 2009 7:16:49 PM
former prosecutor --
Thank you for a thoughtful and analytical comment. As you are starting to discover, the response tends to be either silence or just an offhand criticism, with no analysis and no specifics. The critics also like to pretend that they have no biases of their own.
Posted by: Bill Otis | Jul 22, 2009 8:13:56 PM
There were no “errors” in former prosecutors response. I only pointed out his own words stating that there was an arguable institutional bias in his position and submitted the idea that the remainder of his post only proved that his statement was in fact true. He takes the prosecution view in every statement and it fact does what prosecutors do and attempts to place the “burden of proof” on the defense. Prosecutors do this by using the power and deep pockets of the government to overwhelm the meager resources of the individual citizen who is often times additionally burdened by less than adequate representation. Some of you graduated at the bottom of the class.
I don’t think that Mr. Entine is “shocked” by the actions of some, and note I say some, prosecutors. Rather I think that he like many other citizens are infuriated and tired of seeing how fear, intimidation and in some cases outright lies are used by some less than honorable, self serving wannabe a judge prosecutors aided and abetted by also less than honorable self serving probation officers and both being enabled but sitting judges who choose to take the path of least resistance. They never look into the eyes of the people that they are sentencing.
John K is right in his assessment that Americans are finally catching on to the horror show their justice system has become. We have had enough. And to Mr. Otis, no one is pretending a damn thing. Hell yes I am biased, biased toward a Constitution that guarantees equal justice, biased against those who are corrupting that guarantee every day, biased against a system that continues to punish the offender long after he has “paid his debt to society,” biased against the politicians who refuse to do anything but talk about judicial reform but leave “We The People” high and dry on most issues.
A case in point is H.R. 1529, a bill sponsored and championed by Congressman Rangel through over eight years of an administration opposed to anything in the way of judicial reform. Now that his party is in complete control and the winds of reform are blowing, he completely abandons all support for his legislation. Oh, he reintroduced it again this year but there are no co-sponsors and no efforts on his part to solicit co-sponsorship. Meanwhile, thousands are and have been working diligently to support this legislation but do not even get the courtesy of a response from Rep. Rangel nor other members of congress when seeking information.
Posted by: Had Enough | Jul 22, 2009 9:36:57 PM