.. union chiefs, big time money launderers, international narcotics operations, organized crime families, vicious racial hate crimes, widespread and violent gang activity, or the exploitation and abduction of children. From Eliot Ness to Clint Eastwood, public sympathy has always been on the side of zealous (sometimes even overzealous) law enforcement when the government operates as the citizenry’s bulwark against the sociopathic, the violent, and the rapaciously dishonest. The past several years, however, have brought about an unmistakable sea change in how things work, both in identifying targets of prosecution and in deploying the full artillery barrage of available”by the book” tools when a 22-calibre pistol will do nicely. The use of large weaponry on small targets cheapens the law and the public’s view of those who enforce it.
What has been lost is a sense of proportionality and identification of priorities. Like most processes calling for the exercise of judgment and discretion, the decision to mobilize the vast array of weapons available to the government requires a thoughtful balancing test. Tactics must be tailored to the goal. When external factors such as publicity, ego, and ambition intrude and impact on the decision-making process, the phrase “doing it by the book” can take on a new and pernicious meaning. The new-found role of prosecutors and defense lawyers as celebrities has brought about an entirely new level of interest in the role of lawyers in the law enforcement process and a powerful new source of external influence, on prosecutors especially.
Once, even in sensational trials such as the Gotti prosecutions and the World Trade Center bombing cases, the defense lawyers and prosecutors were all but unknowns as the cases unfolded. No longer. From the Simpson case, the Kennedy-Smith case, “Baby M,” the Menendez brothers, to the advent of Court TV, with its Cochran, Rivera, and their professional siblings (to say nothing of prime time dramas based on lawyers), the lawyers have become the story. And not only those lawyers actually involved in a particular high-profile case, but an ever-growing Greek Chorus of lawyer-experts turned talking heads who provide endless commentary ranging from sagacious to silly. Today, even independent counsel retain press agents and spin meisters.
Courts should not be oblivious to the phenomenon of such prosecutorial abuse, and should use the traditional ethical and procedural safeguards that bind the conduct of all lawyers in instances when government counsel step over ethical lines. Congress has responded in a variety of ways to public concern about crime, often without a sound appreciation or even a rudimentary understanding of the relationship between the crime, the punishment, and the process. Congress has defined ever-increasing numbers of business practices as constituting criminal conduct, often in ways that are so inartful that it is difficult to separate that which is lawful from that which is “just business.” Slapdash revisions of complex regulatory schemes can leave prosecutors and regulatory agencies with the “discretion” to take what are essentially regulatory violations, such as issues of labeling, weights and measures, and billing classifications, and convert them into indictable offenses. Often, the criteria are so vague that courts, let alone defendants, cannot figure out what is prohibited. Similar broad and overlapping enforcement schemes exist in connection with securities regulation, health care fraud, government contracting, and environmental compliance. Thus, prosecutors enjoy a combination of the broadest possible set of investigatory tools and a smorgasbord of Title 18 and civil remedial measures with which to threaten targets and those around them.
We have, in effect, criminalized the regulatory regimes of government such that: A 70-year-old defendant is criminally prosecuted for environmental reporting errors for alleged discharge of pollutants exceeding permit limits, based largely on the testimony of a co-employee in exchange for a more lenient sentence. A motion for a new trial based on the government witness’ statements that his testimony was false is denied, though a new trial is ultimately granted on the court’s failure to instruct the jury as to the weight it could give evidence of the defendant’s good character. An investor is indicted for intentionally and knowingly making two false financial statements to banks; one financial statement carried a disclaimer regarding the allegedly misleading information and the other was found to be “improper” because of an accounting method the government disputed. The defendant was prosecuted for intentional misconduct though all relevant information had been accounted for in defendant’s tax returns and through defendant’s testimony in a bankruptcy proceeding as it had been described in the financial statements. The advent of the federal Sentencing Guidelines has removed judges’ ability to restore balance and proportionality at the punitive phase of prosecutions by exercising educated judgment in fashioning flexible relief based on the qualities of the person convicted and the totality of the circumstances.
The unintended consequence has been the aggregation of enormous power in the hands of the prosecutor who can come to the bargaining table armed with unilateral ability to stack the deck by deciding how to frame and characterize the charges. While this charging power was always present, it is now accompanied by a rigid set of inexorable sentencing consequences that no amount of advocacy or forensic showing can counter. Congress has armed prosecutors and many regulatory agencies with a range of pre-hearing remedies that, as applied, are both cataclysmic –even to the innocent — and difficult to defend against. Whether in the use of forfeitures in actions against property, or pre-judgment asset freeze, the very existence of these devices gives a prosecutor an awesome in terrorem negotiating tool. Equally troubling are the broad pre-judgment asset freeze and restitution powers given to administrative offices such as the OTS and the SEC.
Courts have upheld agency pre-hearing orders that for all practical purposes pauperize a defendant before he or she has had an opportunity to mount a defense.16 In these circumstances, “justice” depends wholly upon the government lawyers’ exercise of good faith, judicious restraint and fairness — qualities that do not necessarily come with the job. This is a lesson that more than a half dozen Justice Department lawyers learned when the Chief Judge of the Federal Claims Court, citing “old fashioned” ideas about the duty of government lawyers, excoriated them for taking positions that do “no credit to the United States.” Finally, the inherent nature of the grand jury process itself, although far from being “new,” has departed so far from its original purpose as a restraining influence on the British Crown, that it has been taken to new limits as a tool to sculpt indictments, with little critical supervision from any source. Technically, judges supervise grand juries and are available to hear motions challenging a prosecutor’s conduct. But judges do not oversee day-to-day operation of the grand jury, and abuse is an open secret that defense lawyers are often powerless to combat. Representing witnesses before a grand jury, or the person being investigated, has become a well orchestrated, even cynical, minuet. The first and most important task may be overcoming the cynicism of so many lawyers in and out of government to whom concern for “fairness” somehow signifies weakness.
It is a cynicism that government lawyers should not have the luxury of acting upon. In reality, a commitment to fairness is a highly reliable sign of strength and confidence in the merits of one’s position, and it is usually those who fear the fairness of the forum who most fear outcomes based on merit. Recently, a controversy has erupted over whether Justice Department lawyers are bound by state codes of ethics and analogous local federal court rules of practice. The issue stems from rules that restrict contact by lawyers with parties known to be represented by counsel, including corporate parties. In essence, the government is seeking to exempt its own lawyers from state and federal court ethical restraints in ways that would go far beyond issues of witness contact. Courts, thus far, have been unsympathetic to this government effort at unilateral exemption from the rules of ethics.