Congress and the Courts Take Dramatic Steps to Address Abuse of Prosecutorial Powers
In the past few months, we have seen a veritable storm of controversy in federal courts, and Congress itself, over the far-reaching powers that have been granted federal prosecutors. Since contemporary escalation of the War on Drugs under the Reagan and Bush administrations, one of the gravest injustices, and least talked about, has been the over-the-top feeding frenzy of U.S. Attorneys.
In the mid '80s, the number of Asst. U.S. Attorneys jumped from 1,700 to over 8,000 almost overnight, all eager to make their marks. With Guideline and Mandatory Minimum sentencing laws, new definitions of drug conspiracy and the use of informant's or bartered testimony, Congress has wittingly or unwittingly given prosecutors carte blanch to trample a defendant's Constitutional rights.
Today a prosecutor virtually controls indictment, trial, the sentencing process, and media coverage. The name of the game has been-increase convictions at all costsif a few tens of thousands of innocent citizens have their lives destroyed in the process, well, that is simply part of the price of the war on drugs.
By in large, the courts have been silent on these matters. U.S. Circuit judges, while publicly bemoaning the unfairness of these gross imbalances, have been slow to risk censure by bucking the system. Few politically tenured persons wants to appear "soft on drugs." As a result, judges have been reduced to little more than automatons, doling out one draconian prison sentence after another, even when the defendant is proven to have a mere tenuous relationship with a drug conspiracy.
Another focus of the last two months has been a small string of judicial decisions that denounce and judge it illegal for the prosecution to use bartered or "snitch" testimony. It is past time for the judges to strike back. Afterall, justice has been placed in their hands and they swore an oath to uphold the Constitutional Rights of every American citizen.
These inequities are being brought into the public eye. Now, finally, winds of change are blowing.
On July 1, 1998, a 3-judge panel of the 10th Circuit, U.S. Court of Appeals delivered a decision, in the case U.S. v. Singleton, that sent shock waves throughout the Department of Justice. In essence, the 10th Circuit has ruled that bartered-for, testimony in federal criminal court is not only illegal and inadmissible, but technically punishable by a substantial fine, and/or up to 2 years in prison. Of course, this strategy is at the very core of plea-bargaining, a tactic prosecutors have used for years, most especially in prosecuting drug defendants.
The fact is, almost all drug convictions in the courts involve a codefendant testifying against another, in exchange for leniency in charging and sentencing. Because of the consensual nature of most 'drug crimes', virtually all federal drug trials rely heavily on prosecutors trading immunity and sentencing leniency in exchange for testimony favorable to the government. Here are some excerpts from that decision:
"U.S. Code, Title 18, Section 201©(2) (the 'bribery statute') could not be more clear. It says: Whoever . . . directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court . . . authorized by the laws of the United States to hear evidence or take testimony . . . shall be fined under this title or imprisoned for not more than two years, or both."
"In this light we apply the statutory phrase 'anything of value' to the promises made to Mr. Douglas (the government's witness). The obvious purpose of the government's promised actions was to reduce his jail time, and it is difficult to imagine anything more valuable than personal physical freedom."
"The information and intervention promised by the government for Mr. Douglas's legal advantage was of great value. In the case of the promise not to prosecute, the value was even greater: besides guaranteed physical freedom he was guaranteed freedom from the burden of defending himself and from the stigma of prosecution and conviction as well."
"We conclude that under § 201C(2) the promise need not be intended to affect, and need not actually affect, the testimony in any way. Promising something of value to secure truthful testimony is as much prohibited as buying perjured testimony."
Ms. Singleton's conviction was reversed and remanded to a new trial.
Government retaliation to this potentially explosive decision was immediate. Meanwhile, defense attorneys across the country hailed it as a return to the ideals of our forefathers.
Quotes from various publications displayed the astonishment of the legal community. "This is a bombshell,'' said Larry Pozner, a Denver defense attorney. "This hits the government right where they live. This is how the government is operating, and we have said for 40 years, if you say to somebody in criminal trouble, I'll give you a free pass, or I'll let you go if you tell me the story I want to hear,' they'll tell you whatever they need to say to get out of trouble.''
Mike Norton, a former U.S. attorney in Denver, said if the court's decision stands, it will have a tremendously negative impact on the government's ability to investigate and prosecute crimes by groupsconspiracy, drug trafficking, money laundering, securities fraud and health care fraud.''
Norton said prosecutors routinely work their way up the chain of command in a criminal organization, offering immunity or plea bargains to lower-level participants in exchange for testimony against their superiors. Judge Kelly said such deals violate federal law.
Eric Holder, the former U.S. attorney in Washington, also defended the prosecutor's art of deal-making with criminals. "Any responsible prosecutor always tries to substantiate (what) any witness for the government is going to be saying," he said. "And especially . . .in instances where the testimony is elicited after some kind of a deal is struck."
Anyone who studies our warped policies of the War on Drugs knows that the reverse is often the case. Misuse of power is commonplace. So much so that we are the only progressive nation to find purchased testimony admissible testimony. It is pure folly to think that criminal informants, which our government calls "witnesses" will not lie to save their own skins. As every government sponsored study on the effect of current sentencing laws have already told us time and time again now, this tactic serves to work down the chain of command in a criminal conspiracy, not up. All too often, uncorroborated, bartered-for hearsay testimony alone is enough to secure a conviction. As a result, our prisons are overflowing with first-time, low-level drug defendants, and outright innocent people. These citizens are serving long, mandatory sentences, while others simply "cut a deal", take the witness stand and leave the courtroom a free man or woman. Our Bill of Rights is rapidly approaching extinction as a result, along with ideals like "innocent until proven guilty" and "due process."
According to the governments' own Federal Judicial Center, in a 1994 report entitled "The Consequences of Mandatory Minimums", out of 9,359 people sentenced for drug crimes that year under federal law, fully 72% had NO role in the offense for which they were convicted. (Appendix, Table 3-A.) Not minimal, not minor, but no role whatsoever. That is 6,755 essentially innocent human beings, doing 5 years or more in prison, in 1994 alone. Multiply that by the years we have waged this war on drugs, including the state and local jurisdictions, and you begin to grasp the magnitude of this injustice.
On July 10, in a highly unusual move, and bowing to intense political pressure, the U.S. Court of Appeals for the 10th Circuit vacated the July 1 opinion in United States v. Singleton so it could address the issue en banc. The decision is now on hold, pending review in November.
S. 2311 - THE EFFECTIVE PROSECUTION AND PUBLIC SAFETY ACT OF 1998
Meanwhile, in the U.S. Senate, legislation was hastily assembled to secure these patently unjust prosecutorial tactics. On July 15, the Senate introduced S. 2311, the Effective Prosecution and Public Safety Act of 1998, sponsored by Sen Kohl. This bill would amend section 201 of title 18, United States Code, to "increase prosecutorial effectiveness and enhance public safety, and for other purposes."
In other words, federal prosecutors could continue their assault on the Bill of Rights, all in the name of looking tough, and continue feeding of the massive criminal justice/prison industrial juggernaut with human lives. Apparently, having the dubious honor of housing the largest per capita prison population on planet Earth isn't enough.
From the bill text:
Congress makes the following findings:
(1) There is no evidence in legislative history or otherwise that Congress intended for section 201 of title 18, United States Code, to make illegal the traditional prosecutorial practice of recommending leniency or other favorable action towards a defendant in exchange for truthful testimony or other cooperation with the prosecution of another defendant.
(2) Section 201 of title 18, United States Code, was enacted in 1962 and, for over 35 years, no Federal court interpreted that section to conflict with this essential tool of law enforcement.
(3) The United States Supreme Court in numerous decisions since 1962, including Giglio v. United States, has reviewed and implicitly approved this practice.
(4) On July 1, 1998, a panel of the Circuit Court of the United States for the Tenth Circuit ruled, in the case of United States v. Singleton, that the language of section 201(c) of title 18, United States Code, holding criminally liable anyone who `directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding,' forbids a prosecutor from promising leniency to a cooperating witness in exchange for testimony, and further ruled that the prosecution of a crack cocaine distributor be thrown out and the case remanded.
(5) Following the July 1, 1998 panel ruling, the Circuit Court of the United States for the Tenth Circuit stayed the panel decision and ordered an en banc hearing.
(6) Regardless of the eventual ruling of the Circuit Court of the United States for the Tenth Circuit on this issue, unless there is Federal legislation or a definitive United States Supreme Court decision on this issue, it is likely that accused and convicted criminals across the Nation will continue to challenge criminal charges and convictions based on the reasoning in the panel decision, increasing the likelihood that dangerous criminals will be released and prosecutors will be discouraged from reasonably exercising their discretion.
What is left unsaid in this language is plea bargains were never much of a problem until the dramatic shift of power in favor of the government enforcers of the war on drugs that occurred in the mid 80's. With a flurry of ill-conceived laws in the midst of Drug War hysteria, an over-zealous prosecutor can now convict virtually anyone they choose. In actuality, they don't even need to be a very good prosecutor.
Excerpts from Mr. Kohl's introductory remarks on this legislation:
"In my view, the risks posed by this decision are too great to leave this issue to the courts-even though I am confident that in the end they would do the right thing. Indeed, until this issue works its way to the Supreme Court, the potential dangers are serious. Prosecutors may feel the need to hold back on cutting deals with potential witnesses, making it tougher to convict dangerous criminals. And criminals behind bars will have a better chance than ever at overturning their convictions. Already, jailhouse lawyers are probably foaming at the mouth anticipating making this argument in courts all over the nation.
Congress can act now to put this issue behind us, to guarantee that prosecutors are not hampered in their efforts to put criminals behind bars, and to make sure that is where criminals stay. This bill is simple and effective. It amends the anti-bribery statute to exempt deals for leniency made by prosecutors in exchange for testimony. And it applies to past as well as future deals, so that no criminalincluding the Oklahoma City bombercan try to use this awful decision as a `get out of jail card' at the expense of the safety of the American people."
Notice the knee-jerk rhetoric in place of real facts and figures, and the reference to Timothy McVeigh.
This bill has only one co-sponsor, and is awaiting review by the Senate Judiciary Committee. Hopefully, that's where it will die a peaceful and quiet death.
It certainly seemed at first that U.S. v. Singleton was an aberration, a radical decision by a rogue panel of judges that was quickly squashed by the status quo. However, almost one month later to the day, in the U.S. District Court, 11th Circuit, for Fort Lauderdale, Florida, lightening struck again.
Emboldened by the maverick court ruling 2,000 miles away, a traditionally conservative federal trial judge broke with tradition on August 4th, and launched himself into a national debate over whether prosecutors should be able to reward criminals for their testimony. Together, these rulings have given new life to the decades-old debate on the fairness of government cutting deals.
In a 31-page ruling that was the talk of the local criminal bar, U.S. District Judge William J. Zloch threw out the testimony of three accused drug defendants on grounds that it was solicited with a prosecutor's promise of a reduced sentencea violation of federal bribery laws, he ruled. In this case, Oslet Franklin Lowery was accused of cocaine smuggling along with three others. His co-defendants were allowed to make plea agreements in which prosecutors agreed to request reduced sentences in exchange for their testimony against Lowery. Judge Zloch disallowed their testimony.
Prosecutors have "quite simply, purchased the testimony of the co-defendants through promises of leniency," said Zloch, who issued an oral ruling in the case two weeks earlier. "Each co-defendant, therefore, has every reason to fabricate, falsify or exaggerate his testimony in an attempt to curry favor with (prosecutors). . ."
Zloch, 53, a former Notre Dame quarterback and 1985 Ronald Reagan appointee, is considered among the most conservative of federal judges and an unlikely candidate to step out front on such a controversial issue.
"What I really like about this whole thing is that now there's an agenda that has to be complied with," Miami defense attorney Roy Black said. "There's going to have to be hearings, testimony is going to have to be taken, and this is something that is finally going to have to enter into the national debate."
Meanwhile, U.S. Attorneys argue that the real underlying issue is a universal frustration by defense lawyers and federal judges over the 1987 federal sentencing guidelines enacted by Congress. The guidelines essentially stripped discretion in sentencing from judges and handed it to prosecutors.
We don't think so. Judges have had to met out horrible sentences, yes. But they have also been the ones presiding over procedures that allow bartered testimony. Perhaps our nation's judges are realizing that these practices are not lawful and are finally taking the lead to see that we return justice to our courtrooms.
H.R. 3396 - CITIZEN'S PROTECTION ACT OF 1998
On August 5, 1998, the House voted 249-182 in favor of retaining the provisions of H.R. 3396 in the 'Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1999.'
H.R. 3396, The Citizens Protection Act of 1998, is a bill to establish standards of conduct for all Department of Justice employees, (including federal prosecutors), and to establish a review board to monitor compliance with such standards. This bill, sponsored by Rep. Joseph McDade and Rep. Jack Murtha had 196 co-sponsors.
In essence, this bill would force the U.S. Attorneys to comply with ethical standards of the individual states in which they were operating and to set up an independent review board for complaints on prosecutors' conduct. A basic summary of the bill follows:
Citizens Protection Act of 1998 - Title I: Ethical Standards for Federal Prosecutors - Subjects a Government attorney to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in duties to the same extent and in the same manner as other attorneys in that State.
Directs the Attorney General to make and amend rules of the Department of Justice (DOJ) to assure compliance with this title.
Title II: Punishable Conduct - Directs the Attorney General to: (1) establish by rule that it shall be punishable conduct for any DOJ employee to seek an indictment in the absence of probable cause, to fail promptly to release information that would exonerate a person under indictment, to intentionally or knowingly misstate or alter evidence, to attempt to influence or color a witness's testimony, to act to frustrate or impede a defendant's right to discovery, to offer or provide sexual activities to any government witness or potential witness, to leak or otherwise improperly disseminate information to any person during an investigation, or to engage in conduct that discredits DOJ; and (2) establish penalties for engaging in such conduct, including probation, demotion, dismissal, referral of ethical charges to the bar, loss of pension or other retirement benefits, suspension from employment, and referral of the allegations (if appropriate) to a grand jury for possible criminal prosecution."
A number of Democrats took this opportunity to blast independent counsel Kenneth Starr, who was appointed by Attorney General Janet Reno to probe accusations against President Clinton.
Rep. Maxine Waters of California called him "the poster-boy for unethical prosecutors. What we are talking about is individuals who have run wild, who have trampled on our rights."
Pennsylvania Republican Rep. Joseph McDade, co-sponsor of the measure, was acquitted in 1996 after an eight-year legal battle over charges that he had accepted gifts from defense contractors in return for helping them get federal contracts.
"I sat beside the gentleman from Pennsylvania for eight years while he was under persecution by federal prosecutors," Rep. John Murtha, a Pennsylvania Democrat, said. "What chance would an individual have against the Justice Department if they would go after one of the most prominent members of Congress?"
On August 5, 1998, funding for this bill was discussed on the House floor. An amendment was introduced by Mr. Hutchinson to strike funding for the bill entirely from the DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS ACT, 1999. An amendment was introduced by Mr. Conyers to retain funding for this bill and include independent and special counsel in it's provisions. A vote on the Hutchinson amendment was declined, and a vote on the Conyers amendment was returned 249 to 182 in favor. This means that the provisions of the bill will be included in funding for the appropriations act for 1999, and will include independent and special counsel.
All in all, if this bill passes and the previous court decisions are held up, they may very well harken the dismantling of the war on drugs. Bold attempts at criminal justice reform are happening concurrent with the increasing public awareness of the futility of the war on drugs. Citizens can lead their leaders. We must work very hard this year, let our legislators know that we support prosecutorial reform and an end to the war on drugs.
Here are some excerpts from the floor discussions of this important legislation that now rests in the hands of the Senate.
Mr. KING "Mr. Chairman, I rise today in strong opposition to the Hutchinson amendment and in strong support of the Citizens Protection Act of my good friend, the gentleman from Pennsylvania (Mr. McDade). I think it is time to put a human face on the abuses that are carried out by prosecutors in this country, prosecutors who consistently violate the rights of innocent human beings, innocent citizens and their families, friends and relatives.
By putting a human face on it, I would like to refer to a predecessor that I had here in the Congress, Angelo Roncallo, . . He was a man who was brought in by the United States Attorney and told he had to deliver a political leader. When he refused to do that, he was called before the grand jury. His family was harassed. He was indicted. His friends were indicted. Everything was leaked to the newspapers. This man's career was destroyed. He was defeated here in the United States Congress.
Finally his case went to trial. The jury was out 30 minutes and he was acquitted. It came out during that case that all throughout, from day one, the prosecutors had evidence that would have completely exonerated this defendant. They knew it from day one. Throughout the trial, they had U.S. Marshals stand around the U.S. Attorney's office because they had convinced the judge that this Congressman, Angelo Roncallo, was somehow going to have them killed during the trial. The jury had to witness this, marshals in the courtroom day in and day out. When the trial was over the judge said it was a disgrace. He referred it to the Justice Department to have it investigated. What was done? Nothing. That is what always happens. Nothing.
. . . I remember I was once negotiating with the United States Attorney in a case and he ended the discussion, ended the negotiation by telling me that he was the United States of America, it was time that I realized it.
The fact is, no prosecutor in this country is the United States of America. The United States of America is the people. We represent the people. It is time for us to stand up and say no to these prosecutors, no matter where they are coming from.
Prosecutors are out of control. They are ruining the civil liberties of people in this country. I am a Republican. I cannot understand how Members in my party who say they support individual rights could ever allow a prosecutor to trample upon the rights of innocent people, the abuses that they are guilty of."
Mrs. FOWLER "Department of Justice attorneys should be required to abide by the same ethics rules as all other attorneys. These attorneys should be held accountable to the same standards set by the State Supreme Court that granted each lawyer his or her license to practice law in that State. As most of my colleagues know, I have always been a supporter of congressional accountability. And in 1995, when the Republicans took control of Congress, one of our first orders of business was to make this institution abide by the same laws we make for everybody else. Well, my colleagues, we are facing the same issue of accountability here.
Our Founding Fathers wisely rejected the notion of kings and dictators and, instead, they formed this experimental government called a democracy. Well, in our system of government no one is above the law. No civil servant, no law enforcement official, no Congressman, not even the President of the United States is above the law in our country. But over the past decade, the Department of Justice has made every attempt to exempt its own attorneys from the ethical rules of the States granting them their licenses. Should the Department of Justice be above the State laws of ethics? I do not see any reason why they should. Time and time again it has come to my attention that Department of Justice lawyers have conducted themselves in a questionable manner while representing the Federal Government without any penalty or oversight. What happened to our good friend and colleague, the gentleman from Pennsylvania (Mr. Joe McDade), could happen to any citizen in this country, and they would not have possibly the courage or the resources that the gentleman from Pennsylvania did to fight it and win."
MR. FORD "One of the reasons that so many around this Nation distrust and mistrust politicians, the gentleman from Pennsylvania (Mr. Murtha) spoke about the district in which the jurors were pooled from in the trial of the gentleman from Pennsylvania (Mr. McDade), where 70 percent of those in that area thought that we were all crooks or thought that politicians were crooks, when you look at a Justice Department that is allowed to really run amuck, to trample the rights of individuals, to trample the civil liberties of individuals all in the quest for a conviction, all in the quest for fulfilling an agenda that they may have personally set and that they personally believe that this person or group of persons might be guilty of a crime, which sometimes might be the case, all we are asking for, Mr. Chairman, and I say to my friends who are sponsoring this amendment and those who I have a personal relationship with who are sponsoring the striking of this provision, is that our prosecutors have to behave and have to follow a certain set of ethical standards.
Citizens need to understand that they have a legal right to have these rules followed, and that is the purpose of this today. Reputable lawyers know better than anyone else that all too often the courts today are too slow; that all too often justice is delayed or, because of delay, denied; all too often the justice system does not ultimately deliver what all of us intend it to deliver.
Because I have so much faith in America's prosecutors, because I want to support our criminal justice system, I want the American people to support that justice system as well. I want everybody to understand that when they go to court and they are accused of a crime or their family member is accused of a crime or when they are a victim and the perpetrator of that crime is accused that justice will be done and that it will be fair and on the level.
There are 10 commandments in this bill. The 10 commandments are already observed by good prosecutors everywhere and certainly by good prosecutors in our Department of Justice and those who work in the Offices of Independent Counsels appointed pursuant to statute. Let me just read these 10 commandments, because it is so self-evident we must stand in support of them.
Commandment number 1, just reading from the 10 provisions of the McDade-Murtha bill, says: Thou shalt not indict without probable cause. Who here today says it should be otherwise? Of course, this is a rule that must bind prosecutors throughout the Government.
Number 2: Prosecutors cannot hide information that would exonerate a person who has been indicted. They cannot hide information that would exonerate someone who might not be guilty of the crime with which they have been charged. That is a rule that good prosecutors already live by.
A prosecutor must not intentionally mislead a court as to the guilt of the accused. Of course he or she must not do that. A prosecutor must not intentionally or knowingly alter evidence or intentionally or knowingly misstate evidence.
Number 6: A prosecutor must not try to color a witness' testimony.
Number 7: A prosecutor must not prevent a defendant from obtaining evidence that he or she is entitled to.
Number 8: A prosecutor must not offer or provide sex as an inducement to any government witness or potential witness.
Number 9: The prosecutor should not leak information improperly during the course of an investigation.
We all know about the importance of grand jury secrecy to the ultimate successful prosecution, because if witnesses are tipped off in advance they cannot convict the guilty.
And number 10: Prosecutors should not engage in conduct that discredits the Department of Justice.
These 10 commandments in this legislation are not controversial. They are not controversial if applied to any prosecutor within the Department of Justice or within the office of any independent counsel. Every lawyer, certainly every Government lawyer should follow these rules."
MS. WATERS "Mr. Chairman, this debate is long overdue. It is about time we dealt with what is wrong with the Justice Department and with unethical prosecutors in this Nation.
Legislators at the state level, at the federal level have been absolutely supportive of the criminal justice system. They have done everything to give law enforcement the ability to apprehend criminals. They have done everything to be supportive of the Justice Department. When we look at the generosity of public policy makers on wire tapping, no-knock, search and seizure, all of that, when we look at mandatory minimums, three-strikes-and-you-are-out, conspiracy laws, we have been very generous, sending a message to the people of this Nation, we want criminals locked up.
We never knew that they would take the generosity of good public policy makers and turn it on its head. We never knew that they would take out after innocent people in so many different ways. I cannot even get into telling my colleagues how they use conspiracy laws. No evidence, no documentation. These conspiracy laws are filling up the prisons.
I do not know all of the details of the case of the gentleman from Pennsylvania (Mr. McDade). I have heard about it. But I want to tell my colleagues, I know thousands of Mr. McDades who do not have any money, who do not have any attorneys, whose grandmothers and mothers come crying to my office for me to help them and I cannot do anything because . . . [these], prosecutors have run amuck. Let me tell my colleagues, my hat is off, my hat is off to the ranking member of the Committee on the Judiciary, my friend from Detroit, Michigan, for this amendment.
I should be able to tell my colleagues about a young woman named Kemba Smith, who is 19 years old, who is sitting in a federal penitentiary today. (Editor's note: Kemba Smith is a young Black woman doing 24 years in prison on 'drug conspiracy' charges.)
And so I do not know all of the details about the gentleman from Pennsylvania (Mr. McDade). I have heard some. But I want to tell my colleagues, indeed, I know many because I have heard the stories and I have seen the devastation of unethical prosecutors.
It is time for America to believe that even though we want criminals prosecuted, indicted and locked up, we do not intend for them to be violated and run over and disrespected by anybody's prosecutor. . . . there is one thing that I hold dear that was drummed in my head as a student, and that was the Constitution of the United States of America."
MR. DELAHUNT "When I was a district attorney, I hired many brilliant, ambitious young lawyers. I gave them a single admonition: "understand the power of your office, and do not abuse it. Understand that being a prosecutor is not about winning and losing. It is about seeing that justice is done. Most of the prosecutors I have known in the course of my career have wielded their authority with integrity and restraint. But those who fail to do so can be as dangerous to the health of our society as the criminals they pursue."
Note: In October, 1998 this Bill was passed by the Senate and signed into law. The US Justice Department now has 180 days to implement its provisions.