US Prosecutorial Reform

[roo_ster]

For anyone that was appalled at the pro/persecutions of Conrad Black, Martha Stewart, or Scooter Libby, the following might be of interest.

Click on the link for the numerous links in the article.

In an important reflection from July 22, 2007, Steyn enumerates 6 areas where the U.S. justice system would benefit from reform:


    1) An end to the near universal reliance on plea bargains, a feature unknown to most other countries in the Common Law tradition. This assures that a convicted man is doubly penalized, first for the crime and second for insisting on his right to trial by jury. The principal casualty of this plea-coppers parade is justice itself: for when two men commit the same act but the first is jailed for the rest of his life and dies in prison while the second does six months of golf therapy and community theatre on a British Columbia farm and then resumes his business career, the one thing that can be said with certainty is that such an outcome is unjust.

    2) An end to the reliance on technical charges such as mail fraud and wire fraud, whereby youre convicted not for the crime itself but for sending a letter or authorizing a bank transfer in the course of said crime. This gives a peculiar dynamic to the presentation of the evidence: the jury spends months hearing about vast schemes and elaborate conspiracies but in the end is asked to rule only on one narrow UPS delivery or faxed letter, the sending of which is not in dispute, only the characterization thereof. If the non-competes are fraudulent, prosecute the fraud, not the mailing of a memo to Jim Thompson while hes on vacation at Claridges in London.

    3) An end to the [legal] process advantages American prosecutors have accumulated over the yearssuch as the ability to seize a defendants funds and assets and deprive him of the means to hire good lawyers and rebut the charges. Or to take another example: Unlike the Crown in Commonwealth countries, in closing arguments to the jury the US government gets to go first andafter a response from the defencelast. This is an offence against the presumptions of English law: The prosecutor makes his accusation, the accused answers them. Every civilized legal system allows the defendant the last word.

    4) An end to countless counts. In this case, Conrad Black was charged originally with 14 crimes. That tends, through sheer weight of numbers, to favour a conviction on some counts and acquittal on others as being a kind of moderate considered judicious compromise that reasonable persons can all agree on. In other words, piling up the counts hands a huge advantage to the government. In this case, one of the 14 counts was dropped halfway through the trial, and another nine the jury acquitted Conrad on. But the four of the original 14 on which he was convicted are enough. One alone would be sufficient to ruin his life. This is the very definition of prosecutorial excess. Why not bring 20 charges or 30 or 45? After all, the odds of being acquitted of all 45 are much lower than those of being acquitted of 30 or 40.

    5) An end to statute creep. One of the ugliest features of American justice is the way that laws designed to address very particular situations are allowed to metastasize and be applied to anything a prosecutor fancies. The RICO statute [i.e., the Racketeer Influenced and Corrupt Organizations Act] was supposed to be for mobsters and racketeers. Conrad Black is not a racketeer but he was nevertheless charged with racketeering. And, while the prosecutorial abuse of RICO is nothing new, the abuse of the obstruction of justice statutes in this case are unprecedented. Hitherto, the only obstruction charges that could be brought in regards to extra-territorial actions involved witness-tampering. In that security video at 10 Toronto Street, Conrad Black may be doing all manner of things, but hes not tampering with any witnesses. Nevertheless, a hitherto narrowly defined statute has now been massively expanded to enable prosecutors to characterize actions by foreign nationals on foreign soil in a way never contemplated by the relevant legislation. Statute creep is repugnant and should be stopped.

    6) An end to de facto double jeopardy. Conrad Black is likely to wind up back in court to go through all the stuff hes been acquitted of one mo time, this time in a Securities and Exchange Commission case. That would be a civil case, not a criminal one, and the US Attorney insists that the SEC is an entirely separate body. Oh, come on. The US Attorney and the SEC are both agencies of the US Government. They work in synchronicity. Its not the same as Nicole Browns family suing OJ after the states murder case flopped. In this instance, two arms of the same organization are bringing separate cases on exactly the same matters. Thats double jeopardyor, in fact, given the zealousness of the SEC, triple and quadruple jeopardy.

As Steyn observes, Conrad Black would have benefitted from such reforms, but then so would your run-of-the-mill alleged malefactorwhich is, Steyn notes, as it should be: Justice is supposed to be blind. But this system is blind drunk on its own power. Thats where the example of chaps like Saint-Just come in: want to know what happens when the judiciary waxes moralistic and arrogates to itself ever increasing prerogatives? Take a look at the career of Louis Antoine L?on de Saint-Just. What Conrad Black got was not justice but Revolutionary justice.

[Matthew Carberry]

I believe I can agree with all the suggested reforms.

I often hear "plea bargains save time and money". 

Well, I have a hint for Federal prosecutors on a way to allow them to better use their time and save my tax money, have your boss in the Executive, lobby freaking Congress to quit passing unnecessary expansions of the list of Federal crimes (usually based on palpably stupid interps of the Commerce clause - thanks FDR, ya big Red), veto those that make it to his desk and rescind executive orders and such that have added to the workload.

1)  If you feel lobbying is beneath you, just do your damn job and prosecute each and every case and pointedly, loudly and repeatedly explain, when the gridlock happens, why Congress is to blame for overreaching the Constitution.

2)  Mail fraud and wire fraud are just ways of Federalizing crimes as well.  As was said, prosecute the fraud at the state level for the act, don't bootstrap it to Fed. level using, ta da, the Commerce clause abortion.  I also agree about closing arguments.  "Closing", meaning "done".  You give your summary, reiterate your points, and shut up and let the jury, the "deciders" do their job.  You don't get a "last word" , your closing argument WAS your last word.

3)  Until proven in a court of law they are the result of criminal acts, assets shouldn't be seized.  If they must be sequestered until that determination is made, the accused should have recourse to at least use them as security for credit to make their case.  If they lose, they are on the hook for the loan, if they win, the Gov. returns the assets AND pays the interest on the loan. (some industry will arise to accept that risk)

4)  Overcharging is a blatant insult to the jury.  If you can't make Murder 1, charge Murder 2, don't charge every lesser-included in the hopes the jury will split the difference when you fail to make you primary count stick.

5)  I hate RICO, since prosecutors can't be trusted to use it narrowly as intended, scrap it.  Sorry, no toys for you until you straighten up your act. Love, Your Dad, the American taxpayer

6)  Civil means civil.  When a criminal law is broken it offends the people as a whole who are then represented by their government.  If the government cannot prove its case, it should devolve back upon the individual citizens to bring action on their own behalf, not for the next gov. prosecutor in line to get another bite at the apple.  If you think you have a better shot by going through the regulatory courts, START THERE.  Pick your best single shot and take it, you'll have done your job.

[jrfoxx]

All 6 sound pretty good to me.

[Warren]

How about that one half of all Fed Prosecutors are only allowed to investigate and prosecute crimes committed by elected and appointed officials, government employees, temps, or contractors, or vendors.

Get the beast to eat its own tail, in other words.

[HankB]

I remember some years back that there was a very complex case involving securities fraud - or what the government called security fraud.

Much to the dismay of the prosecutors, the defendent was acquitted on all counts.

A couple of jurors gave interviews afterwards, and they said the reason they voted "Not Guilty" was that they couldn't make heads nor tails out of the government's case. They said they had educated people on the jury - an engineer, teacher, a few others - and the more the government's agents talked, the more confused things became. When they asked the judge for clarification . . . he simply read the law - verbatim - to them. With all the legalese intact.

So, not knowing even what the guy was supposed to have done, nor even how it was supposed to be illegal . . . they had to acquit. (One juror said that if they couldn't figure out what was going on after the fact, how could they hold someone responsible before all the "explanations" from the government?)

I wholeheartedly agree that it IS double jeopardy when the government brings charges repeatedly for the same action, even after acquittal.