Friday, January 04, 2002

The Unpardonable Ms. White

We are a week away from the first anniversary of President Clinton’s last day in office, the day of the midnight pardons that gave additional ammunition to his obsessed army of haters and left his shrinking company of admirers in a state of bewilderment. In addition to the inevitable political and journalistic tumult, there was much prosecutorial activity centered in the Southern District of New York under the direction of Mary Jo White, the U.S. Attorney who has just left office.

Whatever we may think of Mr. Clinton or his actions, he was exercising his constitutional authority, a point that should matter in a democracy, although it hardly deterred Clinton haters, the media and Ms. White. She seized the public relations opportunity and used every resource available to prosecutors to harass and bully, to do all that she could to find the smoking gun that would allow her to claim some scalps. Along the way, there have been steady leaks to the press, in clear violation of Justice Department rules.

The large local office of the FBI which already served as her satrapy was marshaled in service to this noble cause. Between February 1 and September 11, this investigation was the principal task of the FBI, as thousands of agent hours were spent on fruitless assignments. Terrorism and Osama Bin Laden became lesser concerns.

One of Ms. White’s two main targets was the Skwere chassidic community in Rockland County. Several key members of the community had been convicted of fraud in governmental programs and they were serving extended sentences. While there must be no excuses for their wrongdoing, there also should be no excuses for the kind of prosecutorial abuses that occurred in this case along the way, including deliberately misleading statements by Ms. White’s office regarding the dollar amount of the fraud and, most shockingly, language imbued with group hate that was included in governmental documents.

President Clinton did not pardon any of the Skwere. Rather, he reduced their sentences to what similarly convicted persons usually serve. Here, too, he was exercising presidential authority, a circumstance that also deterred Ms. White not at all. She saw crime in the fact that the chassidim had voted nearly as one for Hillary Clinton. The prosecutor thus sinned twice against democracy, for a modest appreciation of the virtues of our system should beget the understanding that how people vote is their right and business. Ms. White unloosed the FBI in an ugly crusade that bore little fruit and has left scars.

In an important way, her techniques are now standard operating procedure for many prosecutors. I believe that the most powerful journalism in the recent period is Dorothy Rabinowitz’s many articles in The Wall Street Journal detailing how from Massachusetts to Washington State zealous prosecutors abused their authority in their fervent determination to track down and punish alleged child abusers. After being programmed and prodded, children told fantastic stories about highly improbable – at times impossible – acts. Innocent people were prosecuted and imprisoned.

These witch hunts bring to mind the more infamous Salem trials, about which Justice Brandeis wrote, “men feared witches and burned women.”

Too much of our criminal justice system is predicated on fear, fear of crime and on the fear that criminals may go free. As a consequence, we give great latitude to prosecutors who, after all, are the good guys going after the bad guys. We have come to tolerate practices that are wrongful. Despite a steady and shocking flow of incontrovertible stories about doctored evidence, FBI mistakes and worse, prosecutorial overreaching, wrongful convictions and so much else along the same lines, we refuse to reform or even reflect seriously on a system that is in much need of repair.

We have come to routinely accept practices that I believe are alien to the ideal of justice. Senator Harrison William of New Jersey and ABSCAM notoriety died recently, largely forgotten and unmourned. Also forgotten is that ABSCAM was in its entirety a governmentally manufactured crime. Entrapment is now considered proper and we blithefully allow persons who are caught red-handed in criminal acts to purchase leniency by providing testimony against higher-ups who could not be convicted without their testimony. This is an open invitation to exaggeration and lying and both of these elements are real prospects whenever such testimony is offered. For whatever it is worth, I believe that Alfred Taubman of Sotheby’s who is in his 70’s was wrongly convicted because nearly all of the testimony against him was tainted.

There is more than a touch of Javertism in the prosecutorial world. This is a world where too much is seen in terms of black and white and there are too few gray areas. Life, in fact, abounds in gray areas, in ambiguities. It is said about doctors that they bury their mistakes. Those who suffer prosecutorial mistakes are worse off because prosecutors seek to destroy their prey. Prosecutors say that not they but judges and juries decide questions of guilt. In a formal sense, this is true. But in our entirely adversarial system it remains that even when prosecutors operate in a zone of ambiguity, they go full force after their targets.

Even by the reduced standards of prosecutorial propriety, Mary Jo White’s conduct in the Skwere case stands out for its egregious embrace of group hatred. It wasn’t sufficient for her office to prosecute the accused. The larger aim was to go after the entire community, to paint a picture of men, women and children all guilty of the crime of living a chassidic lifestyle.

I have been involved in these matters for four decades and I doubt that there is any other Federal prosecutor in the last generation who has expressed the kind of fetid bigotry that marks the Southern District’s handling of this case.

What Mary Jo White did was, to utilize the relevant term, unpardonable.