
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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