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| Date:   Sun Jan 17 1993  07:24:00                               |
| From:   Linda Thompson                                          |
| To:     Everyone                                                |
| Subj:   WOD (1)                                                 |
| LAW                                                             |
|                                                                 |
| War on Crime Expands U.S. Prosecutors' Powers; Aggressive       |
| Tactics Put Fairness at Issue                                   |
|                                                                 |
| By Jim McGee                                                    |
| Washington Post Staff Writer                                    |
|                                                                 |
|    Public pressure to combat rising crime, together with 12     |
| years of conservative administrations and a "law and order"     |
| Supreme Court majority, has transformed the U.S. criminal       |
| justice system and vastly expanded the powers of federal        |
| prosecutors over the past decade.                               |
|                                                                 |
|    The changes can be measured in numbers: The Justice          |
| Department's budget grew from $2.3 billion in 1981 to $9.3      |
| billion today, while the number of attorneys, including         |
| those who prosecute on behalf of the government, has nearly     |
| doubled, to 7,881.                                              |
|                                                                 |
|    At the same time, Justice Department policies and Supreme    |
| Court rulings have given prosecutors more flexibility than      |
| ever before in pursuing convictions, and made it                |
| increasingly difficult for courts or aggrieved individuals      |
| to hold federal prosecutors accountable for tactics that        |
| once were considered grounds for case dismissal or              |
| disciplinary action.                                            |
|                                                                 |
|    These tactics include manipulation of grand juries;          |
| failure to disclose evidence favorable to a suspect or          |
| defendant; government intrusion into the relationship           |
| between defense attorneys and clients; intimidation of          |
| witnesses; and blitzkrieg indictments or threats of             |
| indictment designed to force capitulation without the need      |
| for a trial.                                                    |
|                                                                 |
|    Polls show that many Americans believe their federal         |
| court system still coddles criminal defendants. But a           |
| growing minority of federal judges and other legal experts      |
| say that the system has tilted too far in the other             |
| direction, and they have complained, in court opinions and      |
| journal articles, of a rising official tolerance for            |
| prosecution maneuvers they see as unfair, abusive and           |
| manifestly improper.                                            |
|                                                                 |
|    Often sounding "procedural" or like "legal                   |
| technicalities" to the layman, such tactics can result in a     |
| "radical skewing of the balance of advantage in the criminal    |
| justice system in favor of the state," as law professor         |
| Bennett L. Gershman put it in a recent law review article       |
| that he called "The New Prosecutors." "First, prosecutors       |
| wield vastly more power than ever before," Gershman wrote.      |
| "Second, prosecutors are more insulated from judicial           |
| control over their conduct. Third, prosecutors are              |
| increasingly immune from ethical restraints."                   |
|                                                                 |
|    These changes, critics like Gershman argue, have             |
| endangered both the fight against crime and the fairness of     |
| the American legal system. In some cases, critics contend,      |
| allowing prosecutors to pursue their cases too aggressively     |
| can result in the release of the guilty and legal ordeals       |
| for the innocent.                                               |
|                                                                 |
|    Among the protesters are judges appointed by President       |
| Ronald Reagan for their "tough on crime" credentials. "The      |
| War on Crime, which is being waged in this country, is an       |
| important one with high stakes," wrote U.S. District Judge      |
| H. Franklin Waters of Arkansas' western district, a Reagan      |
| appointee, in a 1991 opinion setting aside a guilty verdict     |
| he thought was achieved through unfair government tactics.      |
| "But every person concerned with freedom and justice should     |
| recognize that, as in most wars, innocent persons are           |
| sometimes irreparably harmed."                                  |
|                                                                 |
|    Conscious that such rulings often run against public         |
| sentiment, some of the dissenting judges see themselves as      |
| today's equivalent of jurists who made unpopular rulings in     |
| favor of civil rights during an earlier era. "That's not an     |
| unfair analogy," Waters said in a recent interview.             |
|                                                                 |
|    Several recent celebrated cases have focused attention on    |
| these issues:Since last September, the 6th U.S. Circuit         |
| Court of Appeals, in Cincinnati, has been conducting its own    |
| investigation into whether the Justice Department               |
| disregarded information suggesting it had misidentified         |
| retired Cleveland auto worker John Demjanjuk as Nazi death      |
| camp guard "Ivan the Terrible." Based on the identification,    |
| Demjanjuk was deported in 1986 to Israel, where he was          |
| convicted and sentenced to death.   On Dec. 14 in Los           |
| Angeles, U.S. District Judge Edward Rafeedie acquitted          |
| Mexican physician Humberto Alvarez Machain - whose abduction    |
| from Mexico for U.S. trial had been arranged by federal         |
| agents - of charges that he had participated in the 1985        |
| torture killing of U.S. drug agent Enrique "Kiki" Camarena.     |
| Rafeedie accused federal prosecutors of failing to disclose     |
| information from an informant that another doctor, not          |
| Alvarez Machain, had committed the crime.   Recent              |
| convictions of leaders of the El Rukns, Chicago's most          |
| notorious street gang, are in jeopardy after allegations -      |
| now under judicial consideration - that federal prosecutors     |
| suppressed key evidence and engaged in other misconduct that    |
| denied the defendants a fair trial.                             |
|                                                                 |
|    But other cases that have raised questions about federal     |
| prosecutorial power, while often well-known in legal            |
| circles, have not made headlines.   Beginning in the            |
| mid-1980s a special unit in the Justice Department used         |
| threats of simultaneous prosecutions in multiple                |
| jurisdictions - prohibitively expensive to defend against       |
| and once specifically discouraged as a prosecutorial tactic     |
| in the U.S. Attorney's Manual - to force the distributors of    |
| sexually oriented materials out of business without a legal     |
| determination that the materials were obscene. Three courts     |
| have labeled the tactic as unfair and unconstitutional.  In     |
| the District of Columbia in 1988, a prosecutor obtained a       |
| bribery-conspiracy indictment against a prominent               |
| businessman with grand jury tactics that were later             |
| criticized by an internal Justice Department review. The        |
| review acknowledged that the prosecutor had exercised "poor     |
| judgment" in his handling of a grand jury witness. The          |
| businessman was quickly acquitted by a judge who said there     |
| was no direct evidence against him. But his reputation and      |
| business suffered severely from the indictment, and he          |
| continues to seek redress in the courts.                        |
|                                                                 |
|    In Los Angeles two years ago, a U.S. district judge threw    |
| out a major payola-racketeering case because, he said, the      |
| federal prosecutor did not disclose evidence that tended to     |
| exonerate a defendant. In May, an appeals court agreed that     |
| the government's conduct was "intolerable," but reinstated      |
| the case, saying that recent Supreme Court rulings left it      |
| powerless to do otherwise. The prosecution is still pending.    |
| In 1991, a federal judge in California dismissed a              |
| government drug case because "overzealous government agents     |
| and prosecutors" had allowed a defendant to retain an           |
| attorney who was actively working with the government           |
| against him. While pretending to be honestly representing       |
| the accused, the attorney was setting him up for the            |
| government.   In December 1991, a racketeering case against     |
| one of Miami's most notorious criminal suspects was thrown      |
| out because a judge determined that prosecutors had plotted     |
| to provoke the target into breaking a plea bargain agreement    |
| they had made with him.                                         |
|                                                                 |
|    Senior Justice Department officials argue that the few       |
| cases in which excesses occur stand out largely because the     |
| vast number of cases are handled                                |
| fairly, and that federal prosecutors use the weapons            |
| available to them with great restraint.                         |
|                                                                 |
|    "By reason of focusing on a number of individual cases,      |
| whether they are right or wrong," said Assistant Attorney       |
| General Robert S. Mueller III in an interview, "you are         |
| going to tar any number of prosecutors out there who have       |
| dedicated their lives to what they feel is participating in     |
| the criminal justice system in a way that is fair and just.     |
|                                                                 |
|    "You are going to paint us . . . as being some form of       |
| Hessians that will trample over rules without any restraints    |
| in order to put somebody away," said Mueller, who heads the     |
| department's Criminal Division. "That bothers me. That          |
| disappoints me."                                                |
|                                                                 |
|    "You have to judge us overall by what is the net result of   |
| the department's performance," said Deputy Attorney General     |
| George Terwilliger III. "Is (it) . . . that we have a lot of    |
| kamikaze prosecutors out there, running around, doing all       |
| kinds of inappropriate things? Or is (it) . . . that we have    |
| a very highly capable, professional corps of prosecutors and    |
| investigators out there who produce outstanding results under   |
| difficult conditions for a lot less pay than their              |
| counterparts in the private sector make?"                       |
|                                                                 |
| Reagan-Era Crusade Against Crime                                |
|                                                                 |
|   Crime fighting as a theme for national crusade was not        |
| born with the Reagan administration. But Reagan and his         |
| lieutenants came to Washington with a strong belief that        |
| America had been weakened by an era of social and judicial      |
| liberalism, and that the nation was under siege by what the     |
| president in 1982 called "this dark, evil enemy within."        |
|                                                                 |
|    "Crime today is an American epidemic," Reagan said during    |
| a speech at the Justice Department that year in which he        |
| promised to hire hundreds of new prosecutors and agents to      |
| attack a "hardened criminal class."                             |
|                                                                 |
|    Armed with the growing fear of many Americans that their     |
| way of life was threatened by lawlessness, and the              |
| intellectual energy of conservative think tanks that traced     |
| the threat to imbalances in the courtroom, the administration   |
| began tilting the scale in favor of the prosecution.            |
|                                                                 |
|    One of the leading champions of the crusade was former       |
| attorney general Edwin Meese III, who declared war on such      |
| things as the exclusionary rule - which allowed judges to       |
| suppress illegally seized evidence - and denounced as           |
| "infamous" the Miranda warnings meant to protect a suspect's    |
| rights against self-incrimination.                              |
|                                                                 |
|    Meese gave voice to the sentiments of millions of            |
| Americans who were disgusted with crime and impatient with      |
| laws that appeared to hamper police. "The rule of law has       |
| managed to maintain a precarious edge over the forces of        |
| chaos ever since the revival of Western Civiliation," Meese     |
| said in a 1988 speech. "In a sense we are facing up to          |
| another barbarian-type invasion."                               |
|                                                                 |
|    If Meese challenged the law, his successor as attorney       |
| general, Dick Thornburgh, promoted the autonomy of federal      |
| prosecutors. During a 1991 CNN interview, Thornburgh            |
| explained his belief - reflected in Justice policies - that     |
| federal prosecutors should have more leeway than other          |
| lawyers.                                                        |
|                                                                 |
|    "Law enforcement is basically a conservative business,"      |
| he said. "You're putting bad guys in jail. You're trying to     |
| get every edge you can on those people who are devising         |
| increasingly more intricate schemes to rip off the public,      |
| hiring the best lawyers, providing the best defenses.           |
|                                                                 |
|    "So you're constantly pushing the edge of the envelope       |
| out to see if you can get an edge for the prosecution.          |
| That's a conservative undertaking. And as a law                 |
| enforcement official, I think many who subscribe to the old     |
| liberal agenda of the '60s when the Warren Court was expanding  |
| a defendant's rights objected to the fine tuning that we were   |
| proposing in these laws, not to abolish constitutional rights,  |
| but to give the law enforcement officer an even break."         |
|                                                                 |
|    For those prosecutors accused of taking more than an "even   |
| break," the Justice Department has its own self-policing unit,  |
| the Office of Professional Responsibility. From 1985 through    |
| 1991, according to the department, 22 assistant U.S. attorneys  |
| resigned during "pending" internal investigations into          |
| allegations of prosecutorial misconduct, ranging from           |
| improperly securing arrest warrants to improperly contacting    |
| defendants who were represented by lawyers. One other attorney  |
| was fired outright.                                             |
|                                                                 |
|    A quiet resignation "allows the attorney to leave with more  |
| of his reputation intact than if the record showed he was       |
| dismissed," said Michael E. Shaheen Jr., counsel to the         |
| professional responsibility unit. ". . . It's an easy           |
| resolution for us."                                             |
|                                                                 |
|    But it is difficult to judge the efficacy of the office, or  |
| the standards that it uses, because its operations are secret   |
| and it rarely provides specific information about complaints    |
| it receives or their disposition. And, while the department's   |
| U.S. Attorneys Manual sets high standards on paper for the      |
| behavior of its prosecutors, it acknowledges that they are not  |
| necessarily bound by them.                                      |
|                                                                 |
|    A recent General Accounting Office report - prompted by      |
| congressional frustration with the oversight office's secrecy   |
| - criticized the Office of Professional Responsibility for its  |
| "informal ways and unsystematic approach." Despite the near     |
| doubling in the number of prosecutors, the office has           |
| consisted of no more than six lawyers at a time since 1979.     |
|                                                                 |
| Erosion of Judicial `Supervisory Powers'                        |
|                                                                 |
|    Over the last decade, the powers judges once had to          |
| question or stop government misconduct in the criminal justice  |
| system have been significantly eroded by Supreme Court          |
| decisions. Some have categorized as "harmless errors" - not     |
| justifying reversal of a conviction - prosecutorial breaches    |
| that once were considered serious. In 1991, for example, the    |
| court held that using a coerced confession as evidence against  |
| a defendant could be considered "harmless error."               |
|                                                                 |
|    The present discomfort of some federal judges stems most     |
| directly from a decline of their "supervisory power" over the   |
| conduct of federal prosecutors and agents. Although rarely      |
| used, this diminishing power has been a last-resort remedy      |
| that judges can invoke to end prosecutions they considered      |
| abusive, whether or not they violated any specific              |
| constitutional guarantee.                                       |
|                                                                 |
|    In recent years, the Supreme Court has cut back drastically  |
| on the circumstances in which the supervisory power may be      |
| applied, arguing that it too often represents an undue          |
| intrusion into the affairs of the prosecutorial branch.         |
|                                                                 |
|    Most recently, the court last term, in a case called U.S.    |
| v. Williams, severely restricted the "supervisory powers" of    |
| judges to enforce "fundamental fairness" by throwing out cases  |
| tainted by grand jury abuse.                                    |
|                                                                 |
|    Writing for the dissenters in a 5 to 4 decision, Justice     |
| John Paul Stevens warned of the dangers of allowing             |
| "overzealous or misguided prosecutors" to operate free of any   |
| meaningful judicial deterrent.                                  |
|                                                                 |
|    In such cases, the high court has referred aggrieved         |
| individuals to the disciplinary machinery in state bar          |
| associations or to the Justice Department for relief. However,  |
| the Justice Department declared in June 1989 that its           |
| prosecutors were not subject to state bar discipline when, in   |
| the view of the department, it would allow excessive state      |
| interference in federal investigations and prosecutions.        |
|                                                                 |
|    While much of the new power of prosecutors stems directly    |
| from acts of Congress designed to combat white-collar crime     |
| and drug trafficking, Congress has been relatively              |
| deferential in dealing with the overall conduct of the          |
| department and its disciplinary unit.                           |
|                                                                 |
|    As a result of Supreme Court, department and congressional   |
| actions, U.S. District Judge John L. Kane of Colorado said in   |
| an interview, "The system of checks and balances is out of      |
| whack," giving rise to what he called a "sorry episode of one   |
| egregious act after another" by the government.                 |
|                                                                 |
|    A "senior status" retired judge who can choose his cases,    |
| Kane has taken the symbolic step of refusing to hear any        |
| criminal cases. The role of the federal judge in criminal       |
| cases has become little more than a "clerical function," and    |
| without the ability to deter prosecutorial misconduct, he       |
| said in an interview, he cannot in good conscience promise      |
| defendants a fair trial.                                        |
|                                                                 |
|    The experience of U.S. District Judge Terry J. Hatter Jr.    |
| typifies the conflict that has arisen between some trial        |
| judges, who confront government tactics at ground zero and get  |
| outraged, and appellate judges, who confront them more in the   |
| abstract and have to measure them against Supreme Court         |
| precedents.                                                     |
|                                                                 |
|    In 1984, Hatter was presented with the indictment of one     |
| Darrell P. Simpson on charges of drug trafficking. The FBI      |
| became interested in Simpson after receiving a tip from         |
| Canadian authorities that he was an international drug          |
| smuggler. The agents then used as an informant a woman who      |
| was a prostitute, heroin user and a fugitive from Canada.       |
| They arranged for her to meet Simpson as if by accident. The    |
| two became intimate and, at her urging, Simpson procured        |
| heroin from an undercover agent.                                |
|                                                                 |
|    In the course of her work for the FBI, she continued to      |
| engage in prostitution, heroin use and shoplifting and,         |
| according to court records, the agency allowed her to keep a    |
| $10,000 profit from a heroin sale.                              |
|                                                                 |
|    Hatter dismissed the indictment saying that the              |
| government's action was so outrageous as to be                  |
| unconstitutional. "I am constantly in the business of sending   |
| messages to drug dealers," said the judge. "It is important     |
| that I send a message now to the government that this kind of   |
| activity will not be tolerated."                                |
|                                                                 |
|    Two years later, the 9th U.S. Circuit Court of Appeals       |
| reversed Hatter and sent the case back to him, saying the       |
| government's behavior did not violate the Constitution. In      |
| 1988, Hatter dimissed the charges a second time, acting, he     |
| said, under his "supervisory powers" as a federal judge.        |
|                                                                 |
|    In March 1991, a panel of the 9th Circuit reversed him       |
| again, this time with a lecture delivered by Judge Alex         |
| Kozinski. Hatter, Kozinski wrote, was "rightfully disturbed     |
| by the less-than-exemplary conduct of the government." But      |
| "sleazy tactics alone" do not empower a judge to throw out a    |
| case. "In the exercise of the supervisory power," Kozinski      |
| wrote, "judges must be careful to supervise their own affairs   |
| and not those of the other branches."   Unilateral Exemption    |
| From Ethics Rules                                               |
|                                                                 |
|    One of the greatest continuing controveries over the         |
| control of federal prosecutorial behavior stems from            |
| Thornburgh's 1989 move as attorney general to limit             |
| significantly the authority over government lawyers of state    |
| bar                                                             |
| organizations, the bodies that license lawyers.                 |
|                                                                 |
|    Thornburgh was responding to a 1988 decision by the 2nd      |
| U.S. Circuit Court of Appeals reaffirming that bar              |
| disciplinary rules restrict the behavior of federal             |
| prosecutors as well as all other lawyers. Unilaterally,         |
| Thornburgh declared in a memorandum that Justice Department     |
| lawyers are exempt from state bar associations' codes of        |
| professional conduct, if those ethical provisions interfere     |
| with investigative and prosecutorial activities authorized by   |
| law. The issue that sparked the memorandum was whether federal  |
| prosecutors could directly contact defendants who had lawyers.  |
|                                                                 |
|    District of Columbia Superior Court Judge Gladys Kessler     |
| encountered the issue in a 1988 case. She determined that a     |
| federal prosecutor in Washington had violated a bar             |
| disciplinary rule by having conversations with a murder         |
| defendant without his lawyer being present.  Kessler referred   |
| the matter to bar authorities in the District, but because the  |
| prosecutor originally was licensed as a lawyer in New Mexico,   |
| the allegation was transferred to the bar disciplinary board    |
| there.                                                          |
|                                                                 |
|    When it got there, the Justice Department, invoking          |
| Thornburgh's memorandum, declared that there was nothing state  |
| authorities could do about it and went to federal court to      |
| have the matter removed from the hands of state authorities.    |
|                                                                 |
|    In New Mexico, U.S. District Judge Juan G. Burciaga was      |
| astonished when he heard the government claim of immunity from  |
| state disciplinary action for its lawyers. "The Government,"    |
| he wrote in an August opinion rejecting the Justice             |
| Department's position, "threatens the integrity of our          |
| tripartite structure by arguing its lawyers, in the course of   |
| enforcing the laws regulating public conduct, may disregard     |
| the laws regulating their own conduct. The irony of such an     |
| assertion not only fuels public discontent with our system of   |
| justice, but the insolence with which the Government promotes   |
| this as official policy irresponsibly compromises the very      |
| trust which empowers it to act. It falls to this Court to       |
| disabuse the Government of its novel self-conceived notion      |
| that Government lawyers, unlike any other lawyer, may act       |
| unethically."                                                   |
|                                                                 |
|    Burciaga said that Thornburgh, before issuing his            |
| memorandum, "would have done well to have taken a few steps     |
| from his office to contemplate the inscription on the (Justice  |
| Department) . . . wall. . . . `The United States wins its case  |
| whenever justice is done one of its citizens in the courts.' "  |
|                                                                 |
|    On Dec. 23, the Justice Department asked a federal judge in  |
| the District to enjoin Virginia L. Ferrara, the chief           |
| disciplinary counsel for the New Mexico Supreme Court, from     |
| "taking any adverse action against an attorney employed by the  |
| United States Department of Justice for the performance of      |
| federal duties or responsibilities consistent with federal      |
| law."                                                           |
|                                                                 |
|    "It's makes me sound like some kind of drug runner," said    |
| Ferrara, who estimated that the New Mexico bar's small          |
| disciplinary office has so far spent $18,000 defending itself   |
| from the Justice Department's legal attacks. Staff researchers  |
| Barbara Saffir and Margot Williams contributed to this report.  |
|                                                                 |
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| (1:231/110)                                                     |
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