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| Date: Sun Jan 17 1993 07:24:00 |
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| From: Linda Thompson |
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| To: Everyone |
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| Subj: WOD (1) |
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| LAW |
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| War on Crime Expands U.S. Prosecutors' Powers; Aggressive |
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| Tactics Put Fairness at Issue |
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| By Jim McGee |
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| Washington Post Staff Writer |
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| |
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| Public pressure to combat rising crime, together with 12 |
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| years of conservative administrations and a "law and order" |
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| Supreme Court majority, has transformed the U.S. criminal |
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| justice system and vastly expanded the powers of federal |
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| prosecutors over the past decade. |
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| |
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| The changes can be measured in numbers: The Justice |
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| Department's budget grew from $2.3 billion in 1981 to $9.3 |
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| billion today, while the number of attorneys, including |
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| those who prosecute on behalf of the government, has nearly |
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| doubled, to 7,881. |
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| |
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| At the same time, Justice Department policies and Supreme |
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| Court rulings have given prosecutors more flexibility than |
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| ever before in pursuing convictions, and made it |
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| increasingly difficult for courts or aggrieved individuals |
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| to hold federal prosecutors accountable for tactics that |
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| once were considered grounds for case dismissal or |
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| disciplinary action. |
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| |
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| These tactics include manipulation of grand juries; |
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| failure to disclose evidence favorable to a suspect or |
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| defendant; government intrusion into the relationship |
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| between defense attorneys and clients; intimidation of |
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| witnesses; and blitzkrieg indictments or threats of |
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| indictment designed to force capitulation without the need |
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| for a trial. |
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| |
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| Polls show that many Americans believe their federal |
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| court system still coddles criminal defendants. But a |
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| growing minority of federal judges and other legal experts |
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| say that the system has tilted too far in the other |
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| direction, and they have complained, in court opinions and |
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| journal articles, of a rising official tolerance for |
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| prosecution maneuvers they see as unfair, abusive and |
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| manifestly improper. |
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| |
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| Often sounding "procedural" or like "legal |
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| technicalities" to the layman, such tactics can result in a |
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| "radical skewing of the balance of advantage in the criminal |
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| justice system in favor of the state," as law professor |
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| Bennett L. Gershman put it in a recent law review article |
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| that he called "The New Prosecutors." "First, prosecutors |
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| wield vastly more power than ever before," Gershman wrote. |
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| "Second, prosecutors are more insulated from judicial |
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| control over their conduct. Third, prosecutors are |
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| increasingly immune from ethical restraints." |
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| |
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| These changes, critics like Gershman argue, have |
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| endangered both the fight against crime and the fairness of |
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| the American legal system. In some cases, critics contend, |
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| allowing prosecutors to pursue their cases too aggressively |
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| can result in the release of the guilty and legal ordeals |
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| for the innocent. |
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| |
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| Among the protesters are judges appointed by President |
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| Ronald Reagan for their "tough on crime" credentials. "The |
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| War on Crime, which is being waged in this country, is an |
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| important one with high stakes," wrote U.S. District Judge |
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| H. Franklin Waters of Arkansas' western district, a Reagan |
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| appointee, in a 1991 opinion setting aside a guilty verdict |
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| he thought was achieved through unfair government tactics. |
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| "But every person concerned with freedom and justice should |
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| recognize that, as in most wars, innocent persons are |
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| sometimes irreparably harmed." |
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| |
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| Conscious that such rulings often run against public |
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| sentiment, some of the dissenting judges see themselves as |
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| today's equivalent of jurists who made unpopular rulings in |
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| favor of civil rights during an earlier era. "That's not an |
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| unfair analogy," Waters said in a recent interview. |
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| |
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| Several recent celebrated cases have focused attention on |
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| these issues:Since last September, the 6th U.S. Circuit |
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| Court of Appeals, in Cincinnati, has been conducting its own |
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| investigation into whether the Justice Department |
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| disregarded information suggesting it had misidentified |
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| retired Cleveland auto worker John Demjanjuk as Nazi death |
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| camp guard "Ivan the Terrible." Based on the identification, |
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| Demjanjuk was deported in 1986 to Israel, where he was |
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| convicted and sentenced to death. On Dec. 14 in Los |
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| Angeles, U.S. District Judge Edward Rafeedie acquitted |
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| Mexican physician Humberto Alvarez Machain - whose abduction |
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| from Mexico for U.S. trial had been arranged by federal |
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| agents - of charges that he had participated in the 1985 |
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| torture killing of U.S. drug agent Enrique "Kiki" Camarena. |
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| Rafeedie accused federal prosecutors of failing to disclose |
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| information from an informant that another doctor, not |
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| Alvarez Machain, had committed the crime. Recent |
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| convictions of leaders of the El Rukns, Chicago's most |
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| notorious street gang, are in jeopardy after allegations - |
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| now under judicial consideration - that federal prosecutors |
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| suppressed key evidence and engaged in other misconduct that |
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| denied the defendants a fair trial. |
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| |
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| But other cases that have raised questions about federal |
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| prosecutorial power, while often well-known in legal |
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| circles, have not made headlines. Beginning in the |
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| mid-1980s a special unit in the Justice Department used |
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| threats of simultaneous prosecutions in multiple |
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| jurisdictions - prohibitively expensive to defend against |
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| and once specifically discouraged as a prosecutorial tactic |
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| in the U.S. Attorney's Manual - to force the distributors of |
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| sexually oriented materials out of business without a legal |
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| determination that the materials were obscene. Three courts |
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| have labeled the tactic as unfair and unconstitutional. In |
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| the District of Columbia in 1988, a prosecutor obtained a |
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| bribery-conspiracy indictment against a prominent |
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| businessman with grand jury tactics that were later |
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| criticized by an internal Justice Department review. The |
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| review acknowledged that the prosecutor had exercised "poor |
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| judgment" in his handling of a grand jury witness. The |
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| businessman was quickly acquitted by a judge who said there |
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| was no direct evidence against him. But his reputation and |
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| business suffered severely from the indictment, and he |
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| continues to seek redress in the courts. |
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| |
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| In Los Angeles two years ago, a U.S. district judge threw |
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| out a major payola-racketeering case because, he said, the |
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| federal prosecutor did not disclose evidence that tended to |
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| exonerate a defendant. In May, an appeals court agreed that |
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| the government's conduct was "intolerable," but reinstated |
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| the case, saying that recent Supreme Court rulings left it |
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| powerless to do otherwise. The prosecution is still pending. |
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| In 1991, a federal judge in California dismissed a |
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| government drug case because "overzealous government agents |
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| and prosecutors" had allowed a defendant to retain an |
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| attorney who was actively working with the government |
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| against him. While pretending to be honestly representing |
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| the accused, the attorney was setting him up for the |
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| government. In December 1991, a racketeering case against |
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| one of Miami's most notorious criminal suspects was thrown |
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| out because a judge determined that prosecutors had plotted |
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| to provoke the target into breaking a plea bargain agreement |
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| they had made with him. |
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| |
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| Senior Justice Department officials argue that the few |
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| cases in which excesses occur stand out largely because the |
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| vast number of cases are handled |
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| fairly, and that federal prosecutors use the weapons |
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| available to them with great restraint. |
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| |
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| "By reason of focusing on a number of individual cases, |
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| whether they are right or wrong," said Assistant Attorney |
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| General Robert S. Mueller III in an interview, "you are |
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| going to tar any number of prosecutors out there who have |
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| dedicated their lives to what they feel is participating in |
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| the criminal justice system in a way that is fair and just. |
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| |
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| "You are going to paint us . . . as being some form of |
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| Hessians that will trample over rules without any restraints |
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| in order to put somebody away," said Mueller, who heads the |
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| department's Criminal Division. "That bothers me. That |
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| disappoints me." |
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| |
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| "You have to judge us overall by what is the net result of |
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| the department's performance," said Deputy Attorney General |
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| George Terwilliger III. "Is (it) . . . that we have a lot of |
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| kamikaze prosecutors out there, running around, doing all |
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| kinds of inappropriate things? Or is (it) . . . that we have |
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| a very highly capable, professional corps of prosecutors and |
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| investigators out there who produce outstanding results under |
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| difficult conditions for a lot less pay than their |
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| counterparts in the private sector make?" |
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| |
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| Reagan-Era Crusade Against Crime |
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| |
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| Crime fighting as a theme for national crusade was not |
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| born with the Reagan administration. But Reagan and his |
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| lieutenants came to Washington with a strong belief that |
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| America had been weakened by an era of social and judicial |
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| liberalism, and that the nation was under siege by what the |
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| president in 1982 called "this dark, evil enemy within." |
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| |
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| "Crime today is an American epidemic," Reagan said during |
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| a speech at the Justice Department that year in which he |
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| promised to hire hundreds of new prosecutors and agents to |
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| attack a "hardened criminal class." |
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| |
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| Armed with the growing fear of many Americans that their |
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| way of life was threatened by lawlessness, and the |
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| intellectual energy of conservative think tanks that traced |
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| the threat to imbalances in the courtroom, the administration |
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| began tilting the scale in favor of the prosecution. |
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| |
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| One of the leading champions of the crusade was former |
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| attorney general Edwin Meese III, who declared war on such |
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| things as the exclusionary rule - which allowed judges to |
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| suppress illegally seized evidence - and denounced as |
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| "infamous" the Miranda warnings meant to protect a suspect's |
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| rights against self-incrimination. |
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| |
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| Meese gave voice to the sentiments of millions of |
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| Americans who were disgusted with crime and impatient with |
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| laws that appeared to hamper police. "The rule of law has |
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| managed to maintain a precarious edge over the forces of |
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| chaos ever since the revival of Western Civiliation," Meese |
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| said in a 1988 speech. "In a sense we are facing up to |
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| another barbarian-type invasion." |
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| |
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| If Meese challenged the law, his successor as attorney |
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| general, Dick Thornburgh, promoted the autonomy of federal |
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| prosecutors. During a 1991 CNN interview, Thornburgh |
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| explained his belief - reflected in Justice policies - that |
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| federal prosecutors should have more leeway than other |
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| lawyers. |
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| |
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| "Law enforcement is basically a conservative business," |
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| he said. "You're putting bad guys in jail. You're trying to |
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| get every edge you can on those people who are devising |
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| increasingly more intricate schemes to rip off the public, |
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| hiring the best lawyers, providing the best defenses. |
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| |
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| "So you're constantly pushing the edge of the envelope |
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| out to see if you can get an edge for the prosecution. |
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| That's a conservative undertaking. And as a law |
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| enforcement official, I think many who subscribe to the old |
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| liberal agenda of the '60s when the Warren Court was expanding |
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| a defendant's rights objected to the fine tuning that we were |
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| proposing in these laws, not to abolish constitutional rights, |
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| but to give the law enforcement officer an even break." |
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| |
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| For those prosecutors accused of taking more than an "even |
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| break," the Justice Department has its own self-policing unit, |
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| the Office of Professional Responsibility. From 1985 through |
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| 1991, according to the department, 22 assistant U.S. attorneys |
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| resigned during "pending" internal investigations into |
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| allegations of prosecutorial misconduct, ranging from |
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| improperly securing arrest warrants to improperly contacting |
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| defendants who were represented by lawyers. One other attorney |
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| was fired outright. |
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| |
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| A quiet resignation "allows the attorney to leave with more |
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| of his reputation intact than if the record showed he was |
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| dismissed," said Michael E. Shaheen Jr., counsel to the |
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| professional responsibility unit. ". . . It's an easy |
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| resolution for us." |
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| |
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| But it is difficult to judge the efficacy of the office, or |
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| the standards that it uses, because its operations are secret |
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| and it rarely provides specific information about complaints |
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| it receives or their disposition. And, while the department's |
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| U.S. Attorneys Manual sets high standards on paper for the |
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| behavior of its prosecutors, it acknowledges that they are not |
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| necessarily bound by them. |
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| |
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| A recent General Accounting Office report - prompted by |
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| congressional frustration with the oversight office's secrecy |
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| - criticized the Office of Professional Responsibility for its |
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| "informal ways and unsystematic approach." Despite the near |
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| doubling in the number of prosecutors, the office has |
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| consisted of no more than six lawyers at a time since 1979. |
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| |
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| Erosion of Judicial `Supervisory Powers' |
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| |
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| Over the last decade, the powers judges once had to |
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| question or stop government misconduct in the criminal justice |
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| system have been significantly eroded by Supreme Court |
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| decisions. Some have categorized as "harmless errors" - not |
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| justifying reversal of a conviction - prosecutorial breaches |
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| that once were considered serious. In 1991, for example, the |
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| court held that using a coerced confession as evidence against |
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| a defendant could be considered "harmless error." |
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| |
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| The present discomfort of some federal judges stems most |
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| directly from a decline of their "supervisory power" over the |
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| conduct of federal prosecutors and agents. Although rarely |
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| used, this diminishing power has been a last-resort remedy |
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| that judges can invoke to end prosecutions they considered |
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| abusive, whether or not they violated any specific |
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| constitutional guarantee. |
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| |
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| In recent years, the Supreme Court has cut back drastically |
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| on the circumstances in which the supervisory power may be |
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| applied, arguing that it too often represents an undue |
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| intrusion into the affairs of the prosecutorial branch. |
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| |
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| Most recently, the court last term, in a case called U.S. |
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| v. Williams, severely restricted the "supervisory powers" of |
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| judges to enforce "fundamental fairness" by throwing out cases |
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| tainted by grand jury abuse. |
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| |
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| Writing for the dissenters in a 5 to 4 decision, Justice |
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| John Paul Stevens warned of the dangers of allowing |
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| "overzealous or misguided prosecutors" to operate free of any |
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| meaningful judicial deterrent. |
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| |
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| In such cases, the high court has referred aggrieved |
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| individuals to the disciplinary machinery in state bar |
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| associations or to the Justice Department for relief. However, |
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| the Justice Department declared in June 1989 that its |
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| prosecutors were not subject to state bar discipline when, in |
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| the view of the department, it would allow excessive state |
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| interference in federal investigations and prosecutions. |
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| |
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| While much of the new power of prosecutors stems directly |
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| from acts of Congress designed to combat white-collar crime |
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| and drug trafficking, Congress has been relatively |
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| deferential in dealing with the overall conduct of the |
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| department and its disciplinary unit. |
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| |
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| As a result of Supreme Court, department and congressional |
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| actions, U.S. District Judge John L. Kane of Colorado said in |
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| an interview, "The system of checks and balances is out of |
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| whack," giving rise to what he called a "sorry episode of one |
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| egregious act after another" by the government. |
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| |
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| A "senior status" retired judge who can choose his cases, |
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| Kane has taken the symbolic step of refusing to hear any |
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| criminal cases. The role of the federal judge in criminal |
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| cases has become little more than a "clerical function," and |
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| without the ability to deter prosecutorial misconduct, he |
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| said in an interview, he cannot in good conscience promise |
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| defendants a fair trial. |
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| |
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| The experience of U.S. District Judge Terry J. Hatter Jr. |
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| typifies the conflict that has arisen between some trial |
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| judges, who confront government tactics at ground zero and get |
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| outraged, and appellate judges, who confront them more in the |
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| abstract and have to measure them against Supreme Court |
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| precedents. |
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| |
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| In 1984, Hatter was presented with the indictment of one |
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| Darrell P. Simpson on charges of drug trafficking. The FBI |
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| became interested in Simpson after receiving a tip from |
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| Canadian authorities that he was an international drug |
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| smuggler. The agents then used as an informant a woman who |
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| was a prostitute, heroin user and a fugitive from Canada. |
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| They arranged for her to meet Simpson as if by accident. The |
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| two became intimate and, at her urging, Simpson procured |
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| heroin from an undercover agent. |
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| |
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| In the course of her work for the FBI, she continued to |
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| engage in prostitution, heroin use and shoplifting and, |
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| according to court records, the agency allowed her to keep a |
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| $10,000 profit from a heroin sale. |
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| |
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| Hatter dismissed the indictment saying that the |
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| government's action was so outrageous as to be |
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| unconstitutional. "I am constantly in the business of sending |
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| messages to drug dealers," said the judge. "It is important |
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| that I send a message now to the government that this kind of |
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| activity will not be tolerated." |
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| |
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| Two years later, the 9th U.S. Circuit Court of Appeals |
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| reversed Hatter and sent the case back to him, saying the |
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| government's behavior did not violate the Constitution. In |
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| 1988, Hatter dimissed the charges a second time, acting, he |
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| said, under his "supervisory powers" as a federal judge. |
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| |
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| In March 1991, a panel of the 9th Circuit reversed him |
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| again, this time with a lecture delivered by Judge Alex |
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| Kozinski. Hatter, Kozinski wrote, was "rightfully disturbed |
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| by the less-than-exemplary conduct of the government." But |
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| "sleazy tactics alone" do not empower a judge to throw out a |
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| case. "In the exercise of the supervisory power," Kozinski |
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| wrote, "judges must be careful to supervise their own affairs |
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| and not those of the other branches." Unilateral Exemption |
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| From Ethics Rules |
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| |
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| One of the greatest continuing controveries over the |
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| control of federal prosecutorial behavior stems from |
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| Thornburgh's 1989 move as attorney general to limit |
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| significantly the authority over government lawyers of state |
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| bar |
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| organizations, the bodies that license lawyers. |
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| |
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| Thornburgh was responding to a 1988 decision by the 2nd |
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| U.S. Circuit Court of Appeals reaffirming that bar |
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| disciplinary rules restrict the behavior of federal |
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| prosecutors as well as all other lawyers. Unilaterally, |
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| Thornburgh declared in a memorandum that Justice Department |
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| lawyers are exempt from state bar associations' codes of |
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| professional conduct, if those ethical provisions interfere |
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| with investigative and prosecutorial activities authorized by |
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| law. The issue that sparked the memorandum was whether federal |
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| prosecutors could directly contact defendants who had lawyers. |
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| |
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| District of Columbia Superior Court Judge Gladys Kessler |
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| encountered the issue in a 1988 case. She determined that a |
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| federal prosecutor in Washington had violated a bar |
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| disciplinary rule by having conversations with a murder |
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| defendant without his lawyer being present. Kessler referred |
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| the matter to bar authorities in the District, but because the |
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| prosecutor originally was licensed as a lawyer in New Mexico, |
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| the allegation was transferred to the bar disciplinary board |
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| there. |
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| |
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| When it got there, the Justice Department, invoking |
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| Thornburgh's memorandum, declared that there was nothing state |
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| authorities could do about it and went to federal court to |
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| have the matter removed from the hands of state authorities. |
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| |
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| In New Mexico, U.S. District Judge Juan G. Burciaga was |
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| astonished when he heard the government claim of immunity from |
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| state disciplinary action for its lawyers. "The Government," |
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| he wrote in an August opinion rejecting the Justice |
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| Department's position, "threatens the integrity of our |
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| tripartite structure by arguing its lawyers, in the course of |
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| enforcing the laws regulating public conduct, may disregard |
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| the laws regulating their own conduct. The irony of such an |
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| assertion not only fuels public discontent with our system of |
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| justice, but the insolence with which the Government promotes |
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| this as official policy irresponsibly compromises the very |
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| trust which empowers it to act. It falls to this Court to |
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| disabuse the Government of its novel self-conceived notion |
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| that Government lawyers, unlike any other lawyer, may act |
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| unethically." |
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| |
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| Burciaga said that Thornburgh, before issuing his |
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| memorandum, "would have done well to have taken a few steps |
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| from his office to contemplate the inscription on the (Justice |
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| Department) . . . wall. . . . `The United States wins its case |
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| whenever justice is done one of its citizens in the courts.' " |
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| |
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| On Dec. 23, the Justice Department asked a federal judge in |
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| the District to enjoin Virginia L. Ferrara, the chief |
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| disciplinary counsel for the New Mexico Supreme Court, from |
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| "taking any adverse action against an attorney employed by the |
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| United States Department of Justice for the performance of |
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| federal duties or responsibilities consistent with federal |
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| law." |
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| |
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| "It's makes me sound like some kind of drug runner," said |
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| Ferrara, who estimated that the New Mexico bar's small |
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| disciplinary office has so far spent $18,000 defending itself |
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| from the Justice Department's legal attacks. Staff researchers |
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| Barbara Saffir and Margot Williams contributed to this report. |
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| |
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| QuickBBS 2.76 Ovr |
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| Origin: MotherBoard BBS-Indianapolis, IN (317) 881-2743 |
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| (1:231/110) |
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