7/31/2019 Wednesday Watch on Injustice, Edition 57 (06!27!2012)

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WednesdayWatchOn InjustIceBill BastukPresident ICH/Y

Dannielle HilleCommunications Coordinator

Jeffrey DeskovicEditor

YOUYOUITCOULD HAPPEN TOYOU!

PROSECUTORIAL INDISCRETION

By Abbe D. Lowell

"The prosecutor has more control over life, liberty, and reputation than any other person in

America. His discretion is tremendous....While the prosecutor at his best is one of the most

beneficent forces in our society, when he acts from malice or other base motives; he is one of the

worst... If the prosecutor is obliged to choose his cases, it follows that he can choose his

defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that

he thinks he should get, rather than pick cases that need to be prosecuted."

Attorney General Robert Jackson, 1940

Seventy years ago the attorney general - later a Supreme Court justice - admonished his Justice

Department to choose cases wisely and never forget individual prosecutors' enormous power and

discretion. But in light of the verdicts in the John Edwards and Roger Clemens cases, and in the

wake of the misconduct reported in the case against Ted Stevens, his words seem to have gotten

lost.

Every day more crimes are committed in this country than there are police, prosecutors and

judges to investigate and seek justice. This requires "prosecutorial discretion," or choices as to

what cases and people to pursue. Some recent Justice Department choices were not good.

With respect to former senator Edwards, Justice spent more than three years and millions of

dollars to invent a new criminal theory of campaign law violations to pursue someone who wasbasically trying to hide an extramarital affair. There was not a charge of bribery or corruption;

there were no complaining witnesses. After four weeks of trial and nine days of deliberations, the

jury rejected that prosecution. As to Clemens, the government spent four years and much money

(including having to restart the trial after a prosecutor's mistake) responding to congressional

demands that the former pitcher be tried for lying at a committee hearing. The alleged lie was

about the use of steroids in a baseball game - not national security, terrorism or organized crime.

After six weeks of trial, the jury needed only 11 hours to reject this prosecution. Other cases

raise the same issues. In March, Justice lost a retrial of six people in Alabama charged with

bribery; a jury rejected those same charges a year before. The department is still answering for

its bad decisions in the case against former senator Stevens, where it was found to have violated

constitutional protections.

Some might say the system ultimately worked because the Edwards and Clemens juries fixed the

problem. But before the juries spoke, the government had wasted enormous resources that could

have been directed toward serious crimes. There is also the time, money and emotion spent by

defendants and their families. Even if the government had obtained convictions of Edwards and

Clemens, could an objective review conclude that exposing an admitted adulterer and an alleged

cheater to federal prison was worth the effort, or a good use of taxpayer dollars?

Another concern is how prosecutors brought these cases. The Justice Department chose not to

prosecute or granted immunity to individuals that the evidence showed had committed the real

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wrongdoing in order to get the person the government alleged was "higher up" in the scheme.

Andrew Young, who agreed with Edwards to claim paternity for the out-of-wedlock pregnancy,

was shown to have taken almost all of the million-plus dollars that was supposedly spent to hide

the affair and to have lied on multiple occasions. He also tried to improperly collaborate with

other witnesses before trial. For the Clemens case, Brian McNamee provided the prohibited

drugs to athletes and also admitted lying. True, prosecutors must take witnesses as they findthem. But consider the difference in giving immunity to a lieutenant in an organized-crime case

to get the Don vs. allowing an Andrew Young to remain free, keeping a million dollars without

taxes, to build a case against a former presidential candidate, or for Brian McNamee to take the

same oath that Clemens was charged with violating in order to make a case against one of the

best pitchers in baseball history. The lack of proportionality is breathtaking.

Pointing out prosecutorial indiscretion is easier than finding a solution for it. There is little

accountability for Justice Department attorneys who make these bad choices - some pundits or

commentators may cite it. As to oversight, Congress would rather threaten the attorney general

with contempt in an election year than tackle a real problem of wasted law enforcement

resources. Even if real oversight existed, what would be the penalty? Cutting the Justice

Department's budget would only make it harder for real crimes to be pursued.

Still, the department's inspector general or a similarly skilled official should do post-mortems on

failed cases identifying why decisions were made, who made them (this is critical) and report

annually on how much is spent on questionable but high-profile cases. Regarding Edwards, who

rejected a settlement with the Federal Elections Commission or a misdemeanor charge? In the

Clemens case, who decided that following Congress's referral made more sense than relegating

the issue to Major League Baseball and Hall of Fame voters?

Another remedy is for bad decisions to have real costs, as they do to the defendants who spend

vast sums to defend themselves. Currently, the costs of these cases are hidden in the salaries of

career employees and line items for "travel" and "lodging." The now-lapsed Independent

Counsel law included a provision for the reimbursement of attorneys fees for misguidedprosecutions. Allowing defendants in failed cases that have little public benefit to get their fees

covered would be fair to the victims of this prosecutorial indiscretion, would heighten public

awareness of the costs of these cases and would provide real incentive for the government to

think twice before bringing cases. As important, such individual accountability and financial

impacts could ensure that Jackson's prescient warning is not forgotten.

Abbe D. Lowell was lead counsel to former senator John Edwards in his recent trial. He heads

the white-collar and special litigation practice at Chadbourne & Parke.

Article originally published in the Washington Post on June 22, 2012. Reprinted with permission from Abbe Lowell.

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