February 2004

What's Law Got To Do With It? Federal Prosecutors Who Think They Are Above The Law

Filed under: Imported

Federal prosecutorial misconduct has turned two recent high profile cases -- one involving allegations of murder, the other involving allegations of a terrorist conspiracy --  upside down. 

In each case, the jury came back with a conviction, or convictions.  But in one case, the jury saw evidence it wasn't supposed to see -- because, according to the judge, the prosecutor slipped it into the evidence box.  And in the other case, the jury was not shown evidence it was supposed to see -- because the prosecutors never turned it over.  Yet in neither case has any prosecutor who was to blame been fired.

Obviously, actions like these severely undermine defendants' rights.  They also shake public confidence in our criminal justice system.  And they mire that system in costly retrials that never would have had to take place if prosecutors had shown the jury the evidence it was meant to see -- and only that evidence -- in the first place.

This misconduct raises an important question:  How can we prevent it from happening the future?  I will argue that prosecutors should be able to be penalized by the bar of any state in which they practice -- and that the Department of Justice's Office of Professional Responsibility should be reformed to come down harder on cases of blatant misconduct, such as these.

Prosecutorial Misconduct In Virginia Federal Court

In July 2003, a jury convicted Jay Lentz was of kidnapping and murdering his wife and recommended that he spend the rest of his life in prison.  But after the verdict, the judge -- U.S. District Judge Gerald Lee -- set aside the conviction on the kidnapping charge, finding insufficient evidence to support it. <o:p></o:p>

Then, just two weeks ago, Judge Lee ordered a new trial on the murder charge. Why?  Because shocking evidence of prosecutorial misconduct had surfaced. <o:p></o:p>

Jurors had reported that evidence that the court had ruled inadmissible — a calendar allegedly obtained from the possessions of the deceased—had made its way into the jury room anyway.  There, they told the judge, it had been "very influential." 

After a hearing, Judge  Lee concluded that the chief prosecutor in the case, Steven D. Mellin, had put the calendar in the evidence box that had gone to the jury.  He also made plain that he believed Mellin's misconduct was intentional, or at least reckless -- not merely an innocent mistake. 

Rather than offering apologies or explanations, the prosecutors insisted there was no proof of prosecutorial misconduct.  (Earlier, they had insisted that the judge had had no authority to investigate them in the first place.)  Clearly, the prosecutors though they were above the law.  Fortunately, Judge Lee held otherwise.

Why would Mellin have done that?  Recent reports give a possible reason.  Unbeknownst to the defense or the court, he was intensely personally involved in the case.  Indeed, he had asked to prosecute it.   Maybe that involvement made him step over the line.  Or, maybe he did nothing wrong at all, and Judge Lee just doesn't "like him."  That is what Mellin says.  He says Lee gave him "trouble" from the inception of the case.

But the point is this:  Mellin plainly thought that he, not Judge Lee, should control the case and the courtroom.  Indeed, courtroom interchanges between the two were characterized by Mellin "talking back" to the Judge in a way that no defense attorney could ever get away with.

 Mellin is said to have asked the Department of Justice's Office of Professional Responsibility (OPR) to investigate him -- apparently hoping that it will clear him.  But as I will explain below, even if Mellin were clearer by OPR, that would still be no guarantee he was innocent of wrongdoing.

Prosecutorial Misconduct In Detroit Federal Court

 Last year, the well-known case involving an alleged Al Qaeda cell operating out of Detroit, Michigan went to trial. The prosecution's star witness was a jailhouse snitch.  Defense attorneys claimed the witness had concocted a story about hearing defendants talk about their terrorist activity, in order to better his own position with respect to charges against him involving document fraud. 

 As is the norm now in "terrorism" trials, U.S. District Judge Gerald Rosen imposed a gag order on all attorneys—including prosecutors. Attorney General John Ashcroft twice violated that order by going public—during the trial—with statements designed to bolster the credibility of certain government witnesses. 

At the end of trial, some defendants were found guilty, and some were acquitted.  But the guilty verdicts were soon put into question.  It emerged that prosecutors had failed to turn over a crucial piece of exculpatory evidence to the defense. 

The evidence was a letter from a jailmate of the star witness, the snitch.  The man said the snitch had been bragging that he was lying in order to better his position with the government.  In other words, the inmate specifically corroborated the defense's theory that the witness was making up his story up to try to get out of his own legal troubles. 

 Why did the prosecutors not turn the letter over -- as they were obligated to do with any and all exculpatory evidence, under Brady v. Maryland?  They said they thought that it wasn't "important" -- given that all the other evidence, in their view, overwhelmingly pointed to guilt.  In short, they appointed themselves judge and jury over the defendants' fate.

Furious once again, Judge Rosen has been conducting hearings and reading briefs on what he should do next.  The prosecutors have been removed from the case, and the Justice Department is said to be investigating the matter.   But the government's position, unbelievably, continues to be that the verdict -- however tainted by the withheld evidence -- should stand.

Disciplinary Options for Prosecutors Must Be Strengthened

Unlike defense attorneys, who must be licensed to practice law everywhere they practice, federal prosecutors only have to be licensed to practice law in one state.  With a single bar admission, they can practice in any federal court in the land.  The result is that only one state bar can investigate them -- and often, that state bar has no interest in doing so, for their alleged misconduct occurs in another state. 

In the Lentz case, the Virginia State Bar reportedly "referred" Mellin to his licensing state of Texas, for "appropriate" action.  But Texas's standards of practice are famously lax, and pro-prosecution.   Moreover, it is Virginia that has the interest in preventing misconduct here:  A federal judge in a Virginia courthouse has held that Mellin committed misconduct.  

What about federal disciplinary options when prosecutors go astray? Sadly, they are also weak. In 2001, the General Accounting Office wrote a stinging report on the Justice Department's Office of Professional Responsibility.  It found that OPR rarely held prosecutors accountable for misconduct. And if OPR turned over a case over to the state that licensed an errant prosecutor, OPR rarely followed up.

In response to the report, Congress called on OPR to start doing a better job of self-policing. As Chairman of the House Judiciary Committee James Sensenbrenner, Jr. (R-WI) remarked, "The public has a right to demand the highest ethical standards for its public servants, particularly those acting on their behalf in the legal system. Unfortunately, today's report indicates the OPR's procedures fall short of ensuring accountability for attorneys who commit ethics violations and ensuring public transparency of the process. Both areas are critical in maintaining integrity and public confidence in a self-regulating profession."

Did OPR improve itself?  It's hard to tell.  OPR is supposed to file an annual report, but the last one I found on its website was for 2001.  It is filled with self-congratulatory reports of how well it is doing its job -- but it is also lacking in specifics.  We should all watch closely to see if the Mellin and the Detroit cell prosecutors -- all of whom plainly committed misconduct -- are disciplined by OPR or not.  If not, that in itself will be a strong sign that OPR is still not doing its job. 

(This week a federal prosecutor in the Detroit case filed suit against Ashcroft and the Department of Professional Responsibility, claiming that they interfered with his prosecution of the case. He also accuses Ashcroft of public misrepresenations and exaggerations about terrorism prosecutions.)

An Option for Judges Lee and Rosen:  Contempt of Court for the Prosecutors

 Judge Lee and Judge Rosen also have an option if they want to discipline the prosecutors who committed this misconduct -- and in these egregious cases, they should seriously consider availing  themselves of it.  The option is to hold those responsible in contempt of court -- and to impose upon them fines, or even temporary imprisonment. 

Too harsh?  If you think so, consider that these prosecutors were willing to send people to jail for far longer periods, based on evidence that was, in one case, tainted, and in the other, grossly incomplete.  Would it really be so unfair for them to have a small taste of the confinement they might have subjected the defendants to for decades or, in the Lenz case, for life?

Posted by Elaine Cassel at February 20, 2004 7:47 AM

Drake University Subpoenas Withdrawn, But Feds Still Have Some Explaining To Do

Filed under: Imported

It took the "mainstream" media two weeks or more to get to the story of the grand jury investigation that involved an anti-war rally at Drake University on November 16, 2003, sponsored by the National Lawyer's Guild. I reported on it last week, because a reader sent me the story from the Des Moines Register. The Washington Post never even ran a story on it, except in the February 15, 2004 "Nation in Brief," section, where it takes up a tiny bit of space. The New York Times did not get to it until February 10, on the same day the federal prosecutors backed off.

Now, say prosecutors, they were only looking for "leads" into who scaled a security fence at Camp Dodge the day an anti-war rally was held there (November 15), the Iowa National Guard headquarters. Federal prosecutors, who had subpoenaed the financial and membership records of the National Lawyers Guild, subpoenaed four students who were also local members, and likewise subpoenaed Drake University records and security camera tapes, now say that they were not "prosecuting persons lawfully engaged in rallies which are conducted under the protection of the First Amendment."

That is a lame excuse, considering that they would have gotten the records and testimony they wanted had the recipients not filed motions to quash. Their motions, and at least the Des Moines Register coverage, might have intimidated the prosecutors into retreating. For they did not wait for a federal judge to rule on the motions to quash.

The transparency of the prosecutors' pretense is further seen in their trying to make the connections that (1) the Drake University protests were related to the Fort Dodge protest and (2) that someone who "trespassed" on precious Fort Dodge attended either rally. Clearly, the prosecutors are putting protestors on notice that they will be "persons of interest," in FBI parlance, in any "terrorist" investigation, if a link, no matter how absurd and tenuous, can be made.

Showing that he is as good as denying the facts as is his Commander-in-Chief in the White House, Des Moines U.S. Attorney Stephen O'Meara also denied that the investigation was an "anti-terroroism" investigation. Then, do tell, counselor, why the subpoenas were issued by the FBI Joint Terrorism Task Force?

In yet another example of  critics of the Administration being targeted for "terrorism," a truck driver who maintains a website critical of the government's trucking regulations has been questioned in the investigation into the ricin found in Senator Bill Frist's office. Let's see, the man worked for a contractor of the post office, and that contractor delivered the mail that had the ricin. Sounds like he's guilty to me.

Lack of "intelligence" in Iraq is only the tip of the iceberg. The Bush Administration is wanting in intelligence on all fronts. Whistling in the dark, chasing phantoms, hoping that it will scare its critics into silence. So far, it's not working.

Posted by Elaine Cassel at February 15, 2004 11:48 AM

Lawyers, Activists Investigated for Iraq War Protest

Filed under: Imported

Sporadic news reports since the U.S. invaded Iraq in the Spring of 2003 have revealed that the Bush Administration is conducting surveillance on anti-war protestors. Except for the man in South Carolina who was prosecuted for displaying an anti-war placard within a "restricted area" (meaning where Bush could see it) at a Columbia, S.C. airport, no one has been charged with a crime for protesting.

But that may change. Federal prosecutors in Des Moines, Iowa are casting a wide net in issuing subpoenas to individuals who attended an anti-war rally sponsored by the National Lawyer's Guild at Drake University. As goes the Justice Department these days, a veil of secrecy has dropped down over the investigations. People subpoenaed have been ordered not to talk about the investigation.

The National Lawyer's Guild is made up of attorneys who respect and defend the Constitution and fight for individual rights in civil and criminal cases. I have written much about John Ashcroft's war on defense attorneys, particularly in the context of the prosecution of attorney Lynne Stewart (see links on this page) and the erosion of attorney-client confidentiality by DOJ listening in on attorney-client meetings in federal prisons.

By attacking a peace rally sponsored by a legal organization, Ashcroft is letting fly a one-two punch--lawyers who are also anti-war may be in particular jeopardy. But of doing what? Since when is First Amendment expression a crime? When you call it "terrorism," that's when. The investigation is headed by the FBI's Joint Terrorism Task Force.

The timing of the investigation may be a not-so-subtle warning to those planning to participate in the March 20, 2004 anti-war rallys. Those who do protest better be prepared to pay with their freedom. Democratic presidential wannabe's and private citizens--are you paying attention?

Posted by Elaine Cassel at February 7, 2004 2:07 PM

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