For the past six months, I’ve watched as several DOJ officials have come forward to complain that the DOJ has been whitewashing prosecutions, refusing to prosecute crimes against white victims: notably, the Black Panthers case in which two Black Panthers stood outside a polling place in Pennsylvania, uttering epithets, including the line that he wanted to kill “cracker” babies. This took place during the Obama/McCain election.
Eric Holder’s ascendancy to the role of Attorney General has wiped the Black Panthers case off the map. But two whistleblowers have come forward to complain that the DOJ is refusing to prosecute crimes in which a white person is the victim.
I’ve watched all this, hopeful but not too hopeful, that something good could come out of it. I’ve attempted to defend the Enron defendants, but it is difficult to get people to pay attention when the victims are a bunch of rich white guys. Whereas Obama’s DOJ is looking the other way because of racial issues, I believe that the Bush and Obama DOJs are prosecuting because of class issues. Either way, it simply isn’t right.
Then today, USA Today did something extraordinary: they ran a 4,000 word article about prosecutorial abuse. WSJ chose to highlight it in its own newspaper. I quote the WSJ:
It’s not every day that a major daily newspaper runs a 4,000-word article.
But the USA Today has seen fit to spill more than that much ink on a topic near and dear to our hearts: prosecutorial misconduct.
The piece begins with this anecdote:
The jurors who helped put Nino Lyons in jail for three years had every reason to think that he was a drug trafficker, and, until July, no reason to doubt that justice had been done. For more than a week in 2001, the jurors listened to one witness after another, almost all of them prison inmates, describe how Lyons had sold them packages of cocaine. One said that Lyons, who ran clothing shops and nightclubs around Orlando, even tried to hire him to kill two drug suppliers.
But the federal prosecutors handling the case did not let the jury hear all the facts.
Instead, the prosecutors covered up evidence that could have discredited many of Lyons’ accusers. They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.
The story reveals the results of an investigation undertaken by the paper on prosecutorial misconduct. The investigation found that prosecutors “repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.”
Yes! Thank you! Someone else is saying it now.
Much of the problem, reports the paper, rests with the fact that too often prosecutors put aside judgment and discretion, and “deliberately cut corners to win.” Prosecutors are overworked and, have insufficient oversight and, according to Loyola law school professor Laurie Levenson, are the A+ students who aren’t accustomed to losing.
“Prosecutors think they’re doing the Lord’s work, and that they wear the white hat. When I was a prosecutor, I thought everything I did was right,” said Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer. “So even if you got out of line, you could tell yourself that you didn’t do it on purpose, or that it was for the greater good.”
Furthermore, there’s often a lack of accountability. Department records show that its internal investigations often take more than a year to complete, and usually find that prosecutors, at worst, made a mistake, even when judges who presided over the trials ruled that there was serious misconduct.
The comments are very insightful too:
The problem is that many of the prosecutors, whether federal or state, are using the job as a stepping stone and rather than furthering the justice process, they are trying to win at all costs. My suggestion would be that since someone’s liberty is at stake, if a prosecutor fails to disclose information, especially exculpatory, automatic disbarrment for 2 years.
Ask Jeff Skilling or James A. Brown about the failure of the DOJ to produce exculpatory evidence. I’m sure they could talk your ears off. It’s done all the time.
Then there was this harrowing story from another commenter:
My miserable experience shows that prosecutors don’t even comply with the minimal requirements. When I lived in Steamboat Springs CO, I was prosecuted by Elizabeth P. Wittemyer. I am totally convinced that she prosecuted me because she thought it would benefit her husband Chris Wittemyer’s real estate business. I was accused of yelling “you are violating my constitutional rights” while I was standing on the street in front of my home and directing it to the wife of the city council president who by her own account was behind her garage going into her house or alternately at her husband and two construction workers standing on the second floor of a building (that violated the zoning) that they were then building. That was not a crime. I was prosecuted without a warrant or an arrest and the so called criminal summons and arrest was signed only by Jane Bennett my former neighbor and the wife of the city council president. She signed in the line marked police officer. There was never any written statement of probable cause and Wittemyer also skipped an arraignment although that was required. She never talked to me, I never met her. Then after I pled not guilty she dismissed the charges but she skipped the required oral hearing and refused to have one even when my lawyer filed a motion requesting one. She made a public statement that there was probable cause and that Jane Bennett was my victim but that a trial was too expensive. She altered the preprinted dismissal form. Then she bought insurance from Underwriters at Lloyds London, which isn’t even listed on the State of Colorado Division of Insurance form as being authorized to sell insurance in Colorado. They sell it over the Internet to hard to place firms. Furthermore she knew that a restraining order was issued on me for the stated reason that she was criminally prosecuting me but was maintained after the criminal charge was dismissed, again contrary to Colorado statute. With her knowledge, my neighbor followed me around town trying to get me arrested for normal errands and even for being in my own yard. Furthermore I found out later that Kevin Bennett had a felony record for conspiracy to sell hash meaning he had a NCIC record which I think she was privy too. And she knew that the reason I was complaining is that my neighbors both extorted me and built in violation of the zoning. She knew that the planning services director said in court while under oath “my professional societies, American Planning Association and American Institute of Certified Planners” but that when I contacted the AICP they said she was not a member (which requires testing, references, and an ethics oath). She still lives in Steamboat and she knows that the extra buildings, which had heating and plumbing, aren’t on the Routt County property tax rolls for Kevin and Jane Bennett.
Then, after a conference w Lloyds about case assignment, my case against Wittemyer et al. in federal court, D of Colorado 02-1950, was transferred directly for former judge Naughty Nottingham. I am convinced that wasn’t a random assignment. Nottingham was already having weekly prostitution appointments and hanging out at the Diamond Cabaret lap dance club. He dismissed my section 1983 complaint and he didn’t even write an opinion. Then her lawyer filed in the 10th Circuit his notice of appearance and claimed that there were no additional parties without acknowledging the interest of Lloyds which was required. Also, Wittemyer went along with an attorney fee shifting order that was issued without any finding of fraud on my part — there were no rule 11 c 6 orders, her lawyer didn’t even file a rule 11 motion. This was not $500 or $5,000, it was $104 K and designed to bankrupt my family and ruin our credit. The amount was supposed to be because I had alleged that my neighbor might be dealing drugs and the bills from their attorney show him discussing Bennett’s NCIC record in 2003. Last fall he publicly admitted his felony record. The magistrate recommended dismissal of the claims against Wittemyer based on the idea that prosecutors have absolute immunity even for press conferences after a criminal charge is dismissed. That is specifically contrary to the Supreme Court decision in BUCKLEY v. FITZSIMMONS et al. which I had found and quoted.
Then Wittemyer and her lawyer got Nottingham to put me in jail for 5 months without any criminal information, any arraignment, any bail hearing, any trial or any sentence. One of the volunteer prosecutors, an insurance defense lawyer, said that I was not entitled to a lawyer and not entitled to an evidentiary hearing. Nottingham said that I would only be allowed to make a five minute presentation and vowed that he would not listen.
As part of that I was also brought into the federal court in Madison WI. The hearing was not even on the court calendar. The person who officiated wasn’t on the court calendar at all the entire year and was listed on the court website as a clerk. She created a so called criminal docket and listed opening pending and terminated charges as “none”. The assistant U.S. Attorney showed up and said “the government isn’t a part of this”. There was a public defender and he said that I wasn’t accused of a crime not even contempt and if I was I was entitled to a bail hearing. I was not told any of my rights. I wasn’t arraigned, I wasn’t told my right to plead not guilty, I wasn’t told my right to a hearing about where I would be tried, I wasn’t told my right to a speedy trial, there wasn’t a bail hearing and no one even suggested I might be dangerous. I am a middle aged woman with no criminal record who has never owned a gun. The prosecutor didn’t complain when I was ordered held without bail as a high security prisoner for three weeks and then taken 1200 miles in chains. The officiator asked him “Anything further from the Government?” and he said “No, your Honor”.
I don’t even know what to say to that.
These USDOJ prosecutors are not A+ students, they are the lowest of the low whose attitude is no different than that of Mafia dons like John Gotti. But with lames like Ashcroft and Holder in charge of the USDOJ, there is no accountability or oversight at the USDOJ. So the federal prosecutors can go about arresting the usual suspects (minority drug addicts and the like that fill to the brim federal prisons) and the politically motivated prosecutions like those against Gus Boulis, Conrad Black and Elliot Spitzer.
And John Kroger, Sean Berkowitz, Andrew Weissman, Kathy Rummeler, Doug Wilson, John Houston, etc. etc.
It sounds like the culture of the DOJ is to put down cases, whether or not justice is served by a conviction. If the police are going to cut corners in their investigations with the support of prosecutors who will put forth charges without regard for exculpatory evidence, then the entire system is biased toward feeding the career needs of it’s practitioners rather than the people it serves. The real embarrassment are the bar associations which seem to be even less effective than medical boards at excluding the dangerous and unethical members of the profession. Who speaks for the people? DOJ should be doubly embarrassed that it was the USA Today, an institution unknown for its reporting prowess, that broke this story.
Interesting point. It’s USA Today (the “US Magazine” of the newspaper world) who actually put forth some journalistic muscle and wrote the truth. It’s odd that USA Today has this story and the National Enquirer had several stories that turned out to be true (i.e., John Edwards’ affair.) It still seems like the reputable journals don’t dare defend the people “everyone” knows are guilty, such as Enron defendants.
It’s a shame. But I hope that by shedding light on the problem of prosecutorial abuse, maybe we can advance ourselves into a more civil, more honest society.
But as long as the Holder DOJ is in charge, I wouldn’t count on it.