Federal Prosecutors Misconduct Subject of new Federal
Lawsuit
By Derek Gilna
Congressional
initiatives, such as the Smarter Sentencing bill, Sentencing Commission action,
such as the two-level reduction for drug offenders, and Presidential pardons,
under the authority of the executive’s clemency powers, have gotten most of the
publicity, but what about the weak link in the chain, addressing the
inappropriate, unethical activities of unscrupulous(or politically-motivated)
local federal prosecutors?
A writ of
certiorari was recently filed to address an especially egregious example of
prosecutorial misconduct in New Orleans S.
Ct. 1350 (2011), which I wrote about for Prison Legal News.)
To be fair,
Attorney General Holder and his designated successor have helped introduce and
advance many needed reforms into the Department of Justice to get the local
federal prosecutors to remove some of the obvious injustices. Condemning the use of needless enhancements
to garner guilty pleas (often from innocent people), as well as a reform of the
pardon office, were positive developments.
However, Holder has not dared to address an often more serious problem
prosecutorial misconduct.
As federal
case law currently stands, most federal prosecutors are shielded from the full
effect of their misconduct. I have
reviewed hundreds, if not thousands of cases, and if there is one common thread
running through their fact situations, it is the often subtle practice of
federal prosecutors using the power of their position to frustrate diligent
defense attorneys in performing their constitutionally-critical duties of
properly defending their clients. (See the prosecution of Senator Ted Stevens,
who was wrongfully prosecuted and convicted, and driven from office, but later
exonerated. His prosecutors remain
unpunished.)
Don’t
misunderstand me. There are many ethical
prosecutors out there. They work hard for often modest pay, in relation to
other attorneys. However, the unchecked
unethical behavior of some prosecutors, combined with the tremendous advantage
in prosecutorial resources available to the federal government, combines to
often mock the ideal of American judicial justice. Judges often wink at all but the most obvious
examples of prosecutorial abuse.
Yes,
diligent defense attorneys can often uncover these abuses, and take remedial
action even after one has been convicted. However, even when the prosecutorial
wrongdoing has been exposed, no action is taken against the offending
prosecutor. In fact, some of them even
get promoted to federal judgeships! (I personally know of at least three
instances of this, and no, I won’t name them here-yet.)
Federal
prosecutors should be held accountable, as are all defense attorneys, for all
questions of unethical behavior, to level the playing field, and make the term
“American Justice,” more than just a bad punch line. Federal prisons will be much less-crowded places if that takes place.
