Monday, March 15, 2004

The Culture of Prosecutorial Abuse

Chaim Berger died last week in a prison hospital in North Carolina. He was a good and caring man who out of mistaken zeal to help his community misappropriated federal funds, a crime that was compounded by the foolish decision to flee to Israel. By the time that he was caught and returned to the U.S., it was too late for his overlong sentence to be commuted, as President Clinton had appropriately done for his co-defendants. Chaim Berger was nearly 80 when he succumbed to cancer, with pleas that he be released near the end of his life turned down by officials and prosecutors who were more adept at cruelty than he was at crime. If you ask me who committed the greater wrong, Berger or those who prosecuted him and persecuted his community, the guardians of the law win hands down. His crimes involved money; their moral crimes were inspired by cruelty that bordered on sadism.

I do not mean to defend or condone criminal acts, nor am I advocating that America go soft on crime. In our determination to be tough on wrong-doers, we have come to tolerate questionable practices that though they may be legal, scarcely pass an ethics smell test. These include entrapment, the piling on of charges in an indictment in order to intimidate the accused, and the excessive reliance on those who are surely guilty to purchase leniency, after being abundantly threatened and then abundantly coached by prosecutors, by testifying against higher-ups who otherwise could not be charged because the evidence is too thin.

That’s just the tip of a putrid iceberg. There is the expanding tendency of prosecutors, some publicity-mad and/or driven by ambition, to utilize tragedies as the springboard for criminal charges against those who have suffered loss. In Utah, a mother of three has been jailed for two months and accused of murder because, in the words of the Times, “she refused a Caesarean section that might have saved her unborn twin.” Far more prevalent is the deliberate withholding of possibly exculpatory evidence. Worse yet, is the fabrication of evidence. There have been shocking disclosures about FBI and other forensic laboratories which not for naught have been referred to as crime laboratories since they have been places where crimes have been committed.

We know that many innocent persons have been convicted of crimes that they did not commit and some were deliberately railroaded. In the short period since DNA testing has been in vogue, dozens who were convicted of serious crimes have been proven innocent. Some were the victim of honest mistakes, which scarcely reduces the pain of those who have been wrongly accused. In Illinois, the Governor commuted the sentences of all inmates in Death Row because of powerful evidence of trumped up convictions. We also have the sordid story of Tulia in Texas where thirty-eight innocent people were framed by the sheriff and prosecutor and convicted on phony drug charges.

In this still brief century, there have been hundreds of reports of serious prosecutorial abuse. We can be certain that there have been at least as many cases that have not been documented. There is, in short, an epidemic of prosecutorial wrong-doing, yet each new disclosure is treated as an isolated incident that does not indicate the existence of a prosecutorial culture in which serious abuses are tolerated and even encouraged.

I wonder how prosecutors are recruited and trained. Apart from those who come by the way of patronage and connections, are the successful applicants picked because they have shown a cruel streak? In the apprentice period when new prosecutors learn the ropes is it drilled into them that it is their responsibility to protect the innocent? Are they instructed in the wiles of entrapment and in the techniques of distorting evidence? Do they learn about the utility of piling on charges and the legitimacy of lying a little bit? Are they taught that the end justifies the means?

Instead of our national conscience being shocked by revelations of serious prosecutorial abuse, we seem to revel in cruelty. We mouth the ideal that accused persons are innocent until proven guilty and yet we allow prosecutors to indulge in perp walks and exercises whose primary function is to afflict additional pain on the accused and their families. Without shame we allow prosecutors to argue their cases in public in advance of a trial, as they seek to color public opinion against the accused. The media lap up the swill and give us lurid stories that are devoid of concern for the rights of accused persons.

For all of our sincere faith in fairness and fundamental rights, Americans aren’t upset about disclosures of prosecutorial abuse. In the wake of 9/11 and Enron, WorldCom and other mega-financial scandals, there is little interest in reining in prosecutors. Congress has contributed handsomely to the mood through legislation that imposes Draconian sentences and strips away procedural protections. Legislators know that incumbents do not lose elections by posturing about being tough on criminals.
The judiciary has long been the main barrier against prosecutorial abuse, especially at the federal level. John Ashcroft’s Justice Department has done its best to curb an independent judiciary and to cow judges in criminal cases. Sadly, too many judges are being intimidated.

Primary responsibility for prosecutorial abuses lies in where they occur, in prosecutors’ offices and in the spread of a culture that accepts ambition as the defining characteristic of too many of these office holders. There is a widespread feeling that because most who face prosecutorial music do not have entirely clean hands, it is alright to tolerate abuse because at the end of the day the losers are mainly the bad guys who deserve what they are getting.

At the end of the day, in fact, the losers are too many who do not deserve to lose, as well as rights and liberties that are essential to our democratic system.