Prosecutorial zeal

Tough, vigorous prosecutors can be invaluable guardians of the public welfare. Vicious criminal gangs must be pursued, and relentless fearlessness is a necessity. The human tendency to feather one's own nest at the expense of the public needs to be fought, when taxpayers' money is spent in large amounts and management controls are less rigorous than in the private sector. But any good thing is also subject to abuse. We give prosecutors vast, even frightening powers.

In the wake of the Patrick Fitzgerald indictment of Lewis 'Scooter' Libby and the earlier widespread, often vicious and personal, criticism of  Kenneth Starr and other special counsels, whose writ to investigate issues is all too often a writ too large, one maxim comes to mind:

When you view the world with a hammer, everything looks like a nail.

While complaints of over—lawyering have been widespread (usually involving fraudulent personal injury and class action product liability cases, including the monumentally damaging asbestos, silicone and silicoses cases), the objectors usually overlook criminal prosecutors, who are often portrayed as selfless civil servants loyally and sacrificially serving the people.

This positive characterization is overwhelmingly true. However, when high profile cases are involved, an unreasonable passion can seem to take hold of some prosecutors, who become possessed by a  zeal to indict and prosecute minor offenses or even innocent people. They can abuse the legal process and their special powers. Prosecutors can search the statutes for various offenses with which to charge a defendant, and pile them one upon another, in hopes of extracting a plea bargain in the face of a possible lengthy jail term resulting from multiple counts. [1]

They can also damage society at large, as the public is forced to deal with endless rounds of speculation and hysterical overreactions. While America is beset by a wide variety of problems and opportunities, Washington has had its time and energy consumed by the Plame pseudo—scandal: a modern—day auto da fe. Yet Fitzgerald is not alone. There have been many other examples of prosecutors gone wild: let's call them the 'run—amoks'.

A Texas run—amok

Prosecutors can empanel grand juries to investigate and indict individuals for supposed crimes. Unlike trials, the grand jury's proceedings are secret; the defendants and his counsel are generally not present for to hear witnesses' testimony. The potential for abuse of the grand jury system has lead to its abolition in many states, where grand juries have been replaced by hearings before a judge, who then can make a decision whether it is permissible to proceed to an indictment.

One of the more outrageous recent run amoks has been Travis County, Texas District Attorney Ronnie Earle, who has pursued various personal and political vendettas through his abuse of the grand jury and court system for years. Earle seems to focus particular ire on prominent Republicans lately, though he prosecuted Democrats at the time Texas was a one—party state. His most recent victim has been House Majority Leader Tom DeLay. Supporters of Congressman DeLay have pointed out a pattern of misconduct alleged to have been committed by Earle. The original indictment accused DeLay of conspiring to violate a Texas election law that bars corporations from contributing to political candidates. Many analysts had a hard time detecting any violation of the law since the relevant law was enacted after the supposed violation took place and because there is no evidence that ties corporations' donations directly to candidates. Regardless of the merits of the case, Earle has engaged in an obsessive pursuit of a grand jury indictment: the first grand jury returned an indictment but when it became clear that the original charge in the indictment would not pass muster, he redrew the indictment and submitted it to another grand jury. When that grand jury refused to indict, Earle went grand jury shopping for another grand jury that would indict. The third time was charm and an indictment was issued. Earle has been accused of improper discussions and coercion of the grand jury foreman, as well as politically motivated jury shopping.

A New York run—amok

New York State Attorney General Eliot Spitzer has used the powers of his office to indict mutual fund, stock brokerage, and insurance companies for a variety of financial misdeeds. He has a unique ability to do this because of extraordinary powers granted to the office by New York State's Martin Act. This 1921 Act gives the attorney general power to

'subpoena any document he wants from anyone doing business in the state," make investigations secret or public at his whim, and "choose between filing civil or criminal charges whenever he wants." Extraordinarily, Thompson notes, "people called in for questioning during Martin Act investigations do not have a right to counsel or a right against self—incrimination. Combined, the act's powers exceed those given any regulator in any other state." 

Spitzer has used his bully pulpit as New York Attorney General and these vast, almost imperial, powers to compel financial firms to make major changes in their practices and to disgorge billions of dollars in settlements. He can develop his own, politically influenced, 'enemies list'— such as his current campaign against individuals buying cigarettes through the mail. He bullied UPS to do his bidding when they agreed to stop delivering cigarettes to individuals, despite the fact that such buying and delivering are legal in New York State.

UPS will make it easier for New York to collect taxes on the sales of cigarettes, but there are no provisions in New York laws or regulations that forbid individuals from buying cigarettes through the mail. Facing the possibility of vigorous prosecution by Spitzer, UPS capitulated. However picayune the supposed offenses may be, or indeed whether they or legal, appears to be irrelevant when a person or company is on Spitzer's radar screen.

Spitzer's illustrious New York prosecutorial predecessors, including Thomas Dewey and former US Attorney Rudolph Giuliani, have used their perches to pursue political careers — as Spitzer seems to be doing now. Dewey and Guliani did not make their reputations pursuing white—collar criminals, but we live in a different era. Spitzer, being a Democrat, sees more malefactors on Wall Street than on the mean streets.

Run—amoks and the child abuse craze

Innocent people, far away from high profile precincts of Washington or Manhattan, can also be victims of modern—day Torquemadas. Some years ago, America was seized by a new hysteria: supposed rampant child molestation and Satanism at child—care centers across America. Operators and owners of such centers became suspects, and some underwent a public immolation that, in retrospect, can be seen as shameful, since many of them have now been shown to be innocent.

Yet, in the heat of the moment and under the glare of klieg lights, prosecutors charged them with these most shameful of offenses and then rounded up a list of activists to support their charges: child—care 'experts', child psychiatrists, child advocates, and even hypnotists. Of course, journalists also added to the fire, publishing breathless 'exposes' and accounts of goings—on in these centers that, on Halloween, are reminiscent of reviews of  The Exorcist. 

Wall Street Journal editorialist Dorothy Rabinowitz wrote an outstanding book, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Time, which provides an admirable account of the dishonesty of these charges. In one of the more notorious cases, that of the Amiraults, a woman and her two grown children ran a successful pre—school in Massachusetts. They were charged and then found guilty by a jury who completely ignored the absence of scientific or physical evidence linking them to any of the allegations.

Rather, they relied on the testimony of children who had been swayed by lengthy coaching sessions before their testimony and by 'expert' witnesses who touted their pet, and in retrospect absurd, theories to justify prosecution.  Rabinowitz's research and the work of others who attempted to rectify a gross injustice, led to these sham convictions being overturned — years later.

Another book, The Abuse of Innocence: The McMartin Preschool Trial, tells the story of the McMartin Preschool Nursery in a suburb of Los Angeles, which was subject to a sex—abuse investigation that lasted six years, cost taxpayers 16 million dollars, and initially identified 42 children as victims. There were seven defendants at first, but, as the 'case' progressed, only two people went to trial. Actually, there were two trials and both ended in mistrials.

The 'case' was eventually dropped when it became apparent that the prosecution was 'witch—hunt' complete with suggestible children, overwrought parents, and overzealous prosecutors intent on making a name for themselves'. Saturday's  Los Angeles Times carried a confession by one of the parties to the case. But lo and behold, it does not come from the defendants: an apology comes from one of the accusers, Kyle Zirpolo, who now says that the 'experts' and 'child—welfare advocates' forced him to give them answers that fit their agenda. He states:

Anytime I would give them an answer that they didn't like, they would ask again and encourage me to give them the answer they were looking for. It was really obvious what they wanted. I know the types of language they used on me: things like I was smart, or I could help the other kids who were scared.

I felt uncomfortable and a little ashamed that I was being dishonest. But at the same time, being the type of person I was, whatever my parents wanted me to do, I would do.

My parents were very encouraging when I said that things happened. It was almost like saying things happened was going to help get these people in jail and stop them from what they were trying to do to kids. Also, there were so many kids saying all these things happened that you didn't want to be the one who said nothing did. You wouldn't be believed if you said that.

The lawyers had all my stories written down and knew exactly what I had said before. So I knew I would have to say those exact things again and not have anything be different, otherwise they would know I was lying. I put a lot of pressure on myself. At night in bed, I would think hard about things I had said in the past and try to repeat only the things I knew I'd said before.

But the lying really bothered me. One particular night stands out in my mind. I was maybe 10 years old and I tried to tell my mom that nothing had happened. I lay on the bed crying hysterically—I wanted to get it off my chest, to tell her the truth. My mother kept asking me to please tell her what was the matter. I said she would never believe me. She persisted: "I promise I'll believe you! I love you so much! Tell me what's bothering you!" This went on for a long time: I told her she wouldn't believe me, and she kept assuring me she would. I remember finally telling her, "Nothing happened! Nothing ever happened to me at that school."

She didn't believe me.

Mr. Zirpolo now realizes that not just his family, but all the people involved in the prosecution, had roles to play in persecuting the innocent people who ran the child—care center, and he is trying to make amends and own—up to his own role in the true abuse involved here: the abuse of prosecutorial discretion.

Prosecutors are the gatekeepers in our judiciary system. We need them to be honest always, and to be vigorous in the face of genuine injustice. But we must recognize that they, too, are human, with all the foibles and imperfections that we all have. Fame is an intoxicating drug, and a very dangerous one, to boot. The principle that a defendant is innocent until proven guilty is only one safeguard against over—zealous prosecutors. Public skepticism is always warranted.

[1] An editorial in today's New York Sun points out that the statute which Fitzgerald found to use against Libby has been criticized in the past by none other than Supreme Court Justice Ginsburg for its sweeping generality. Ginsburg noted that many people might innocently violate the provision due to faulty memories. Libby was indicted based, partly, on testimony based on an event from two years ago, a meeting that is one of many thousands he has undoubtedly had over the years. The Sun has called for a pardon for Libby in the same editorial.

Ed Lasky is news editor of The American Thinker.

Tough, vigorous prosecutors can be invaluable guardians of the public welfare. Vicious criminal gangs must be pursued, and relentless fearlessness is a necessity. The human tendency to feather one's own nest at the expense of the public needs to be fought, when taxpayers' money is spent in large amounts and management controls are less rigorous than in the private sector. But any good thing is also subject to abuse. We give prosecutors vast, even frightening powers.

In the wake of the Patrick Fitzgerald indictment of Lewis 'Scooter' Libby and the earlier widespread, often vicious and personal, criticism of  Kenneth Starr and other special counsels, whose writ to investigate issues is all too often a writ too large, one maxim comes to mind:

When you view the world with a hammer, everything looks like a nail.

While complaints of over—lawyering have been widespread (usually involving fraudulent personal injury and class action product liability cases, including the monumentally damaging asbestos, silicone and silicoses cases), the objectors usually overlook criminal prosecutors, who are often portrayed as selfless civil servants loyally and sacrificially serving the people.

This positive characterization is overwhelmingly true. However, when high profile cases are involved, an unreasonable passion can seem to take hold of some prosecutors, who become possessed by a  zeal to indict and prosecute minor offenses or even innocent people. They can abuse the legal process and their special powers. Prosecutors can search the statutes for various offenses with which to charge a defendant, and pile them one upon another, in hopes of extracting a plea bargain in the face of a possible lengthy jail term resulting from multiple counts. [1]

They can also damage society at large, as the public is forced to deal with endless rounds of speculation and hysterical overreactions. While America is beset by a wide variety of problems and opportunities, Washington has had its time and energy consumed by the Plame pseudo—scandal: a modern—day auto da fe. Yet Fitzgerald is not alone. There have been many other examples of prosecutors gone wild: let's call them the 'run—amoks'.

A Texas run—amok

Prosecutors can empanel grand juries to investigate and indict individuals for supposed crimes. Unlike trials, the grand jury's proceedings are secret; the defendants and his counsel are generally not present for to hear witnesses' testimony. The potential for abuse of the grand jury system has lead to its abolition in many states, where grand juries have been replaced by hearings before a judge, who then can make a decision whether it is permissible to proceed to an indictment.

One of the more outrageous recent run amoks has been Travis County, Texas District Attorney Ronnie Earle, who has pursued various personal and political vendettas through his abuse of the grand jury and court system for years. Earle seems to focus particular ire on prominent Republicans lately, though he prosecuted Democrats at the time Texas was a one—party state. His most recent victim has been House Majority Leader Tom DeLay. Supporters of Congressman DeLay have pointed out a pattern of misconduct alleged to have been committed by Earle. The original indictment accused DeLay of conspiring to violate a Texas election law that bars corporations from contributing to political candidates. Many analysts had a hard time detecting any violation of the law since the relevant law was enacted after the supposed violation took place and because there is no evidence that ties corporations' donations directly to candidates. Regardless of the merits of the case, Earle has engaged in an obsessive pursuit of a grand jury indictment: the first grand jury returned an indictment but when it became clear that the original charge in the indictment would not pass muster, he redrew the indictment and submitted it to another grand jury. When that grand jury refused to indict, Earle went grand jury shopping for another grand jury that would indict. The third time was charm and an indictment was issued. Earle has been accused of improper discussions and coercion of the grand jury foreman, as well as politically motivated jury shopping.

A New York run—amok

New York State Attorney General Eliot Spitzer has used the powers of his office to indict mutual fund, stock brokerage, and insurance companies for a variety of financial misdeeds. He has a unique ability to do this because of extraordinary powers granted to the office by New York State's Martin Act. This 1921 Act gives the attorney general power to

'subpoena any document he wants from anyone doing business in the state," make investigations secret or public at his whim, and "choose between filing civil or criminal charges whenever he wants." Extraordinarily, Thompson notes, "people called in for questioning during Martin Act investigations do not have a right to counsel or a right against self—incrimination. Combined, the act's powers exceed those given any regulator in any other state." 

Spitzer has used his bully pulpit as New York Attorney General and these vast, almost imperial, powers to compel financial firms to make major changes in their practices and to disgorge billions of dollars in settlements. He can develop his own, politically influenced, 'enemies list'— such as his current campaign against individuals buying cigarettes through the mail. He bullied UPS to do his bidding when they agreed to stop delivering cigarettes to individuals, despite the fact that such buying and delivering are legal in New York State.

UPS will make it easier for New York to collect taxes on the sales of cigarettes, but there are no provisions in New York laws or regulations that forbid individuals from buying cigarettes through the mail. Facing the possibility of vigorous prosecution by Spitzer, UPS capitulated. However picayune the supposed offenses may be, or indeed whether they or legal, appears to be irrelevant when a person or company is on Spitzer's radar screen.

Spitzer's illustrious New York prosecutorial predecessors, including Thomas Dewey and former US Attorney Rudolph Giuliani, have used their perches to pursue political careers — as Spitzer seems to be doing now. Dewey and Guliani did not make their reputations pursuing white—collar criminals, but we live in a different era. Spitzer, being a Democrat, sees more malefactors on Wall Street than on the mean streets.

Run—amoks and the child abuse craze

Innocent people, far away from high profile precincts of Washington or Manhattan, can also be victims of modern—day Torquemadas. Some years ago, America was seized by a new hysteria: supposed rampant child molestation and Satanism at child—care centers across America. Operators and owners of such centers became suspects, and some underwent a public immolation that, in retrospect, can be seen as shameful, since many of them have now been shown to be innocent.

Yet, in the heat of the moment and under the glare of klieg lights, prosecutors charged them with these most shameful of offenses and then rounded up a list of activists to support their charges: child—care 'experts', child psychiatrists, child advocates, and even hypnotists. Of course, journalists also added to the fire, publishing breathless 'exposes' and accounts of goings—on in these centers that, on Halloween, are reminiscent of reviews of  The Exorcist. 

Wall Street Journal editorialist Dorothy Rabinowitz wrote an outstanding book, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Time, which provides an admirable account of the dishonesty of these charges. In one of the more notorious cases, that of the Amiraults, a woman and her two grown children ran a successful pre—school in Massachusetts. They were charged and then found guilty by a jury who completely ignored the absence of scientific or physical evidence linking them to any of the allegations.

Rather, they relied on the testimony of children who had been swayed by lengthy coaching sessions before their testimony and by 'expert' witnesses who touted their pet, and in retrospect absurd, theories to justify prosecution.  Rabinowitz's research and the work of others who attempted to rectify a gross injustice, led to these sham convictions being overturned — years later.

Another book, The Abuse of Innocence: The McMartin Preschool Trial, tells the story of the McMartin Preschool Nursery in a suburb of Los Angeles, which was subject to a sex—abuse investigation that lasted six years, cost taxpayers 16 million dollars, and initially identified 42 children as victims. There were seven defendants at first, but, as the 'case' progressed, only two people went to trial. Actually, there were two trials and both ended in mistrials.

The 'case' was eventually dropped when it became apparent that the prosecution was 'witch—hunt' complete with suggestible children, overwrought parents, and overzealous prosecutors intent on making a name for themselves'. Saturday's  Los Angeles Times carried a confession by one of the parties to the case. But lo and behold, it does not come from the defendants: an apology comes from one of the accusers, Kyle Zirpolo, who now says that the 'experts' and 'child—welfare advocates' forced him to give them answers that fit their agenda. He states:

Anytime I would give them an answer that they didn't like, they would ask again and encourage me to give them the answer they were looking for. It was really obvious what they wanted. I know the types of language they used on me: things like I was smart, or I could help the other kids who were scared.

I felt uncomfortable and a little ashamed that I was being dishonest. But at the same time, being the type of person I was, whatever my parents wanted me to do, I would do.

My parents were very encouraging when I said that things happened. It was almost like saying things happened was going to help get these people in jail and stop them from what they were trying to do to kids. Also, there were so many kids saying all these things happened that you didn't want to be the one who said nothing did. You wouldn't be believed if you said that.

The lawyers had all my stories written down and knew exactly what I had said before. So I knew I would have to say those exact things again and not have anything be different, otherwise they would know I was lying. I put a lot of pressure on myself. At night in bed, I would think hard about things I had said in the past and try to repeat only the things I knew I'd said before.

But the lying really bothered me. One particular night stands out in my mind. I was maybe 10 years old and I tried to tell my mom that nothing had happened. I lay on the bed crying hysterically—I wanted to get it off my chest, to tell her the truth. My mother kept asking me to please tell her what was the matter. I said she would never believe me. She persisted: "I promise I'll believe you! I love you so much! Tell me what's bothering you!" This went on for a long time: I told her she wouldn't believe me, and she kept assuring me she would. I remember finally telling her, "Nothing happened! Nothing ever happened to me at that school."

She didn't believe me.

Mr. Zirpolo now realizes that not just his family, but all the people involved in the prosecution, had roles to play in persecuting the innocent people who ran the child—care center, and he is trying to make amends and own—up to his own role in the true abuse involved here: the abuse of prosecutorial discretion.

Prosecutors are the gatekeepers in our judiciary system. We need them to be honest always, and to be vigorous in the face of genuine injustice. But we must recognize that they, too, are human, with all the foibles and imperfections that we all have. Fame is an intoxicating drug, and a very dangerous one, to boot. The principle that a defendant is innocent until proven guilty is only one safeguard against over—zealous prosecutors. Public skepticism is always warranted.

[1] An editorial in today's New York Sun points out that the statute which Fitzgerald found to use against Libby has been criticized in the past by none other than Supreme Court Justice Ginsburg for its sweeping generality. Ginsburg noted that many people might innocently violate the provision due to faulty memories. Libby was indicted based, partly, on testimony based on an event from two years ago, a meeting that is one of many thousands he has undoubtedly had over the years. The Sun has called for a pardon for Libby in the same editorial.

Ed Lasky is news editor of The American Thinker.