Law & the Courts

Time to Tame Prosecutors Gone Wild

Misconduct among them is rampant but can and should be curtailed.

At CPAC next week, former majority leader of the House Tom Delay, John Fund, and I, among others, will be speaking on a panel dubbed “Prosecutors Gone Wild.” The topic alone is a sad commentary on the current state of our criminal-justice system. As Ninth Circuit judge Alex Kozinski has said, “there is an epidemic of prosecutorial misconduct abroad in the land.” The epidemic is devastating the lives of innocent people and breaking families; it is devouring our tax dollars; and it has destroyed the public’s faith in our justice system.

At a time when the federal deficit is out of control, all resources are scarce, the very seams of our prisons are bursting from overcrowding, and we lead the world in incarceration, it is outrageous that we continue to incarcerate innocent people and harass and destroy the lives of others through prolonged, baseless prosecutions. We have replaced the constitutional imperative of presumption of innocence with the ever-increasing politicization and weaponization of every federal agency as an arm of the White House to achieve its socioeconomic agenda.

Lawyers working for and with the Innocence Project across the country have freed more than 1,300 people, many of whom have been incarcerated for decades for crimes they did not commit. This publication and others, including the Wall Street Journal, the Washington Post, the Los Angeles Times, USA Today, and the New York Observer, are trying to wake us up. The truth about victims of prosecutorial misconduct is that, but for the grace of God, there go any one of us.

Prosecutorial misconduct in its worst forms is difficult to uncover. It can be as egregious as obstruction of justice and subornation of perjury. The defense doesn’t know what it doesn’t know. Judges want and expect to be able to trust the prosecutors, and judges have their own limitations and biases. Too few are willing to face how pernicious and pervasive this problem is. A prosecutor willing to lie or hide evidence to achieve a result has the ability to do so — with no ramifications. Prosecutors enjoy absolute immunity, and bar associations do little to nothing in most cases.

Fortunately, most prosecutors strive to do their difficult jobs with honor, fairness, and integrity. They internalize and exemplify the Supreme Court’s mandate that the United States Attorney seek justice — not convictions. Unfortunately, however, as the reversals, exonerations, and belated disclosures have begun to show, far too many prosecutors pursue their own personal agendas instead of justice. They see the high-profile cases as steppingstones to positions of power, wealth, and influence.

For example, the Enron Task Force prosecutors about whom I wrote in my book Licensed to Lie: Exposing Corruption in the Department of Justice became President Obama’s longest-serving White House counsel (Kathryn Ruemmler); general counsel of the FBI (and now head of the Corporate Fraud section at the Department of Justice, Andrew Weissmann); the acting assistant attorney general for the Criminal Division of the Department of Justice, who then micromanaged the corrupted prosecution of former senator Ted Stevens, thereby changing the balance of power in the Senate (Matthew Friedrich); and our current assistant attorney general for the Criminal Division (Leslie Caldwell). Even though every case they took to trial was reversed in whole or in part for some form of prosecutorial overreaching, they skyrocketed to positions at the top of international law firms and in government.

Prosecutorial misconduct in its various forms accounts for more than half of wrongful convictions, yet prosecutors continue to enjoy absolute immunity, far too much judicial respect and deference, and no repercussions from their superiors or bar associations even when their violations are intentional.

It’s time to consider some new remedies. Prosecutors, who should meet a higher standard, should meet at least the same standard to which defendants are held. It’s time for Congress to introduce open-file discovery legislation, which would compel prosecutors to disclose all evidence or information to a criminal defendant and stipulate serious penalties for their failure to do so. A criminal defendant has a constitutional right to any evidence that may be favorable to his defense, but neither prosecutors nor judges are equipped to make that determination.

Only the defense can do that, as the Supreme Court said long ago, when it also told prosecutors that any doubt should be resolved in favor of disclosure. Unfortunately, many prosecutors turned their cases into a game they sought to win at any cost.

As Judge Kozinski recently noted from the bench in an oral argument, it’s time to consider perjury prosecutions for prosecutors who lie to courts — and obstruction-of-justice charges if they intentionally hide evidence. Citizen-influenced conviction-integrity units should be established to review questionable prosecutions and outrageous results. Prison should be reserved for people who are a danger to the community. Those who are not dangerous could be engaged in more-productive activities (at no or little cost to the taxpayers) while they pay restitution or their debt to society.

We can and must do better. We owe it to ourselves and each other. We cannot afford and should not tolerate prosecutors who are licensed to lie. Both political parties should be able to recognize the problem and to agree on the solutions. Only fair trials serve justice; wrongful prosecutions hurt everyone. CPAC should lead the way for reform.

Sidney Powell is an attorney specializing in federal appeals. She has been lead counsel in more than 500 appeals in the U.S. Court of Appeals for the Fifth Circuit, resulting ...


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