When District Attorneys Attack

Originally published at National Review by Kevin D. Williamson | 5/31/15

(Mirko Vitali, Visivasnc/Dreamstime; Illustration: NRO)

The GOP should turn its attention to prosecutorial misconduct.

As the old Vulcan proverb has it, “Only Nixon can go to China.” And only Nixon’s political heirs can fix the persistent — and terrifying — problems that continue to plague this country’s law-enforcement agencies and prosecutors’ offices.

Exhibit A: Orange County, California.

The sunny Southern California county with a population surpassing that of nearly half the states has a Republican district attorney, Tony Rackauckas, and a big problem on its hands: Its entire prosecutorial apparatus — all 250 lawyers in the district attorney’s office — have been disqualified from participation in a high-profile capital-murder case following revelations that the office colluded with the Orange County sheriff’s department to systematically suppress potentially exculpatory evidence in at least three dozen cases, committing what legal scholars have characterized as perjury and obstruction of justice in the process.

One of the questions involves a secret database of jail records related to confessions obtained via informants. Sheriff’s officers denied the database even existed, and their deception was abetted by prosecutors, leading an exasperated judge to issue an order noting that they “have either intentionally lied or willfully withheld material evidence from this court during the course of their various testimonies. For this court’s current purposes, one is as bad as the other.” The judge unsubtly recommends prosecution.

RELATED: Injustice System: Today’s America Is a Landscape of Legal Abuse

The database tracking inmates’ movements around the jail and the reason for those movements is significant, because Orange County law enforcement and prosecutors were in the habit of placing targeted suspects in proximity to criminal informants, who were rewarded with reduced sentences, favors, or money — payments in some instances ran into the six figures — for helping put together cases against jailed suspects. This practice is illegal. It is one thing if a suspect in custody speaks about his crimes and an informant comes forward to report that confession; it is another thing to operate a program under which the interrogation of suspects is effectively delegated to incarcerated felons who are secretly on the county’s payroll. The lack of present legal counsel is only the beginning of what is wrong with that practice.

To operate such a program is ipso facto a violation of the law and of ethical standards for jailers and prosecutors both. To lie about it is a serious crime. It may turn out to be a lucky thing after all that these defective prosecutions will probably open up a great many jail cells: Orange County is going to have to put these sheriff’s officers and prosecutors somewhere.

RELATED: Baltimore’s Problem, and America’s: The Criminal-Justice System Is a Disaster

The despair-inducing details of the case can be located in the pages of OC Weekly, but the climax so far is this:

Superior Court Judge Thomas M. Goethals made an unprecedented, historic move after announcing he’d lost confidence in Orange County homicide and gang prosecutors to obey simple legal rules of conduct. Goethals, a onetime prosecutor and campaign contributor to the DA, recused Rackauckas and his entire staff from People v. Scott Dekraai, the capital case stemming from the 2011 Seal Beach salon massacre.

What this means is that the prosecutors’ office is, in effect, an example of that other O.C.: organized crime.

Prosecutorial misconduct is a plague upon these United States.

A secret cache of electronic records containing information that is potentially embarrassing to political figures, and the criminal handling of that database, is of course an all-too-familiar story to those of us who have been following the saga of Hillary Rodham Clinton’s e-mails, which were originally in digital form, were converted into paper printouts, and are now in the process of being redigitized before they are handed over to investigators, a process that only the naïve would believe exists for any purpose other than tampering with the evidence. The Orange County authorities had been using their database, called TRED, for a quarter of a century. Prosecutors were aware of it, and the sheriff’s officers who testified before Judge Goethals had made thousands of entries in it. Yet they could not quite recall its existence when honor, duty, and the law obliged them to do so.

This is not a one-off. Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an “epidemic” of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.

RELATED: America Desperately Needs to Fix It’s Overcriminalization Problem

The Democrats have long been acculturated to the climate of corruption that attends government agencies that are largely free of ordinary accountability, where a carefully cultivated lack of transparency shields operatives from scrutiny and normal oversight. Republicans can rouse themselves to action, if only barely, when this involves the federal Internal Revenue Service or Environmental Protection Agency. But deference to police agencies and prosecutors is so habitual among the members of the law-and-order party that they instinctively look for excuses when presented with obvious examples of police misconduct, and twiddle their thumbs in the 99 percent of cases of prosecutorial misconduct that do not involve a Republican elected official.

Only the Republican party has the credibility and the political capital to take on the difficult task of reining in rogue police agencies and abusive prosecutors.

But only the Republican party has the credibility and the political capital to take on the difficult and sure-to-be-thankless task of reining in rogue police agencies and abusive prosecutors — and they may as well take a look at our scandalous prisons while they are at it. Some Republican leaders, notably Texas’s former governor Rick Perry, have been active and energetic partisans of reform, largely under the banner of the excellent Right on Crime campaign. But this is not really a job for presidents or even governors: This is a job for mayors, city councilmen, district attorneys, sheriffs, and police chiefs. In the bigger cities, Republicans are thin indeed in those ranks. But that is not the case in Orange County. In Orange County, Republicans have no excuse.

Democrats may have ruined Detroit, Baltimore, Cleveland, etc., and they are well on their way toward doing the same thing to Los Angeles, Philadelphia, New York, etc. If Republicans want to show that they can do better, then fixing the mess in Orange County, a community more populous than Chicago, would be an excellent place to start.

— Kevin D. Williamson is roving correspondent at National Review.


Baltimore’s Problem, and America’s

Originally published at National Review by Conrad Black | May 6, 2015

The criminal-justice system is a disaster.

It would be ungracious of me not to acknowledge with gratitude the column on Sunday of my old friend Fareed Zakaria, citing several sources, including me, as he recounts the almost unmitigated moral bankruptcy of the U.S. criminal-justice system. As the Freddie Gray riots and indictments in Baltimore continue the fortnightly spectacles of fatal police excess that, with the eager amplification of the media, are creating the world-wide and not entirely false impression that American law enforcement is conducting a sea-to-sea shooting gallery, it is timely to review these problems, which are now decried from right (e.g., George Will) to left (e.g., Katrina vanden Heuvel). They extend from undisciplined police, through a rogue prosecutocracy infested with Torquemadas who can smoke anything past the constitutional heirloom of the grand jury and convict almost anybody by intimidating witnesses to inculpate the targets (with the choice between threats of prosecution themselves and promises of immunity for perjury), to mainly elected state judges dispensing draconian sentences and pandering to the law-and-order lynch mobs, to overstuffed prisons staffed by under-supervised unskilled labor who kill an inordinate number of prisoners in unconstitutionally bestial conditions. This is American justice today, unsuspected by Norman Rockwell, triumphantly championed by morons like Nancy Grace; it is the still largely unnoticed tragedy of many millions of ruined American lives.  TOP ARTICLES1/5READ MORESanders Invokes Obama’s Praise forCuban Education in Defending His Castro Comments

RELATED: Injustice System: Today’s America Is a Landscape of Legal Abuses

In the modern United States, the only reforms are those demanded by adequately large numbers of voters or adequately rich interests. There are 48 million convicted felons in the U.S., and they have tens of millions of relatives and friends, and while most of them are relatively unconnected and demoralized by stigmatization, or just relieved that their legal problems were long ago and they have partly or wholly surmounted them, those suffering the sting of injustice aggravated by gelatinously negative public complacency about the injustice of the system are very numerous and righteously upset. They cannot be far from where the previous waves of mass reform jumped off. Prior to smashing the barricades that restrained them, “uppity n*****s” and “mouthy women” and “angry gays” were starting to chin themselves on the need for militancy, no matter how personally risky, or at the least embarrassing, it might be. Of course, a large number of convicted people were actually guilty of something, unlike, simply by virtue of what they were, African Americans, women, and gays, but many innocent people have been convicted, and most have been over-sentenced, and all who have served their sentences are entitled to be heard about the systematic mistreatment that is so widespread in the U.S. justice system.

This is American justice today, unsuspected by Norman Rockwell, triumphantly championed by morons like Nancy Grace; it is the still largely unnoticed tragedy of many millions of ruined American lives.

Fareed Zakaria outlined the obvious proportions of the problem in his column: The United States has 5 percent of the world’s population, 25 percent of its incarcerated people, and 50 percent of its lawyers (who account for about 10 percent of the country’s GDP). Prosecutors win 99.5 percent of their cases, about 97 percent without a trial, and the country has six to twelve times as many incarcerated people per capita as comparably prosperous large democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. No sane, conscientious American citizen can be comfortable with these figures and their implications. In a word, the United States, the people that ordained for itself the Constitution that contains the Bill of Rights, has a somewhat tenuous claim to be a country subject to the rule of law, at least in criminal matters. And crimes include thousands of offenses, including, as George Will pointed out in a column in April, picking up arrowheads on federal lands or driving a snowmobile accidentally onto land protected by the Wilderness Act. Given the innumerable statutes and regulations with criminal sanctions, the mens rea element of guilt has faded and the old principle that ignorance of the law is not an excuse would not now be equitable in many cases.

RELATED: America Desperately Needs to Fix Its Overcriminalization Problem

For obvious reasons, there is a tendency to view the recent interracial police-inflicted fatalities as another manifestation of longstanding African-American grievances. But three times as many white Americans are killed by police and prison employees as non-whites, which confirms that minorities suffer proportionately more abuse from law enforcement, but African Americans and other minorities would short-change themselves, and be unjust to others, if they did not recognize this as an almost equal-opportunity problem, in which the constabulary, justice, and custodial systems disserve everyone, and no one is safe from such abuse. Nor will it quite do to sound the same old note of white insensitivity in high places in the Freddie Gray tragedy in Baltimore. That is a city where the majority in the city proper is African-American, where African Americans are in charge as mayor and chief of police, and majorities of city officials, elected and appointed, are African American. Whatever is judged to have happened in this case, it was not whites killing a non-white. No doubt, that is a factor in some incidents, but it would minimize the proportions of this immense and extremely dangerous problem to see it in these terms only, or even principally.

The whole U.S. criminal-justice system is now an immense problem and it gnaws, every day, at the soul of America.

Americans are promised their day in court, but, because of the public-policy adoption of a goal of unheard-of levels of imprisonment (advocated as passionately by such liberals as Robert Kennedy, Nelson Rockefeller, and Bill Clinton as by such conservatives as Richard Nixon and Ronald Reagan), the system could not possibly try a serious number of these cases, as opposed to just terrorizing defendants into pleading guilty and taking a dive, without completely clogging the system. There has been very little reform legislation in the federal government in recent decades in any field that is based on the traditional motive of people like Theodore Roosevelt and Woodrow Wilson, simply to make things work better (like TR’s Pure Food and Drug Act). Reform is demanded by groups too large or rich to be ignored. Victims of the excesses of the justice system certainly are such a group, but to avoid provoking a schismatic reaction in the country, they must cross all racial and ethnic lines and make it clear that they are not mollycoddlers of crime, and are not calling for indulgence of violent crime, but seek restoration of the Bill of Rights guarantees of due process, the grand jury as a serious filtration process, no seizure of property without just compensation, access to counsel, an impartial jury, prompt justice, and reasonable bail. The plea-bargain system will have to be drastically reformed and cooperating witnesses must not be immune to apparently well-founded perjury claims, and criminal cases should not be heard by elected judges. While this cannot be legislated, the media should rub the sleeping knots of 50 years from their eyes and go back to serving the country — by deploying a free press in service of free institutions, and not competing to lead the lynch mob every time there is a publicized offense.

RELATED: Annals of Injustice: The Libby Case and Other Horrors

Most trial judges should not be ex-prosecutors. Nor should prosecutors have an absolute immunity. The Thompson case, in which a falsely accused man was left in death row for 14 years to the full knowledge of prosecutors, who were ultimately excused from heavy sanctions by a majority on the Supreme Court, was an especially extreme case of this. So was the case against Senator Ted Stevens (R., Alaska), who was electorally defeated on a prosecution the Justice Department knew to be false, and the only serious penalty paid was by a prosecutor who committed suicide. The egregious Patrick Fitzgerald should not get a free pass for securing a conviction of former vice president Richard Cheney’s chief of staff Lewis “Scooter” Libby by misshaping the evidence of Judith Miller.

Sentences should be reasonable and some sort of commission should regularly sift through all the laws and regulations with heavy sanctions, cull and consolidate them, and attach to them penalties that are appropriate and are not just bludgeons used by prosecutors to extort false confessions of guilt and Stalinesque allocutions of self-condemnation. The entire process has become a national degradation that cheapens the value of American citizenship and disgraces the country and its fine traditions, and threatens everyone in the United States, or reachable by its authorities, even though in other countries.

#related#Not the least of the excesses of this careening juggernaut grinding people almost indiscriminately to powder has been its extraterritorial application, in which the State Department frequently gets behind the Justice Department and tries to muscle foreign jurisdictions. A striking example of this was the recent effort, clearly inspired by foreign-policy considerations, to extradite Ukrainian billionaire Dmytro V. Firtash from Austria for alleged bribery in India in a titanium deal that never occurred, but in fact because of his political activities in Ukraine. The indictment coincided with the visit to Ukraine by assistant secretary of state Victoria Nuland, to try to persuade Firtash’s friend, former Ukrainian president Viktor Yanukovych, not to abandon a close political and trade agreement with the European Union. The State and Justice departments denied any such motive, but the Austrian judge found otherwise, and ordered the release of Mr. Firtash, who had posted $130 million. The judge ruled the attempted extradition and trial a spurious abuse of justice and of the reputation of the United States as a civilized and law-abiding country. No one is claiming Firtash has an uncontroversial record in the Ukrainian natural-gas business, but there is no obvious U.S. claim against him.

The whole U.S. criminal-justice system is now an immense problem and it gnaws, every day, at the soul of America. Where has the Supreme Court, the ultimate and always sanctimonious guardian of the Constitution, been while the rights of the people have been gutted? Generations of its justices do not have the excuse of having to face voters whipped up by tele-demagogues and gimcrack politicians. They don’t have any excuse.

— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom and Richard M. Nixon: A Life in Full. He can be reached at [email protected]


America Desperately Needs to Fix Its Overcriminalization Problem

Originally published at the National Review by George Will | April 9, 2015

The hyper-proliferation of criminal statutes has put too much power in the hands of prosecutors.

What began as a trickle has become a stream that could become a cleansing torrent. Criticisms of the overcriminalization of American life might catalyze an appreciation of the toll the administrative state is taking on the criminal-justice system, and liberty generally.

In 2007, professor Tim Wu of Columbia Law School recounted a game played by some prosecutors. One would name a famous person — “say, Mother Teresa or John Lennon” — and other prosecutors would try to imagine “a plausible crime for which to indict him or her,” usually a felony plucked from “the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield.” Did the person make “false pretenses on the high seas”? Is he guilty of “injuring a mailbag”?  TOP ARTICLES2/5READ MOREWarren Rips Bloomberg for AllegedlyTelling Pregnant Employee to ‘Kill’ It

In 2009, Harvey Silverglate’s book Three Felonies a Day demonstrated how almost any American could be unwittingly guilty of various crimes between breakfast and bedtime. Silverglate, a defense lawyer and civil libertarian, demonstrated the dangers posed by the intersection of prosecutorial ingenuity with the expansion of the regulatory state.

In 2013, Glenn Harlan Reynolds, University of Tennessee law professor and creator of Instapundit, published in The Columbia Law Review “Ham Sandwich Nation: Due Process When Everything is a Crime.” Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the proliferation of criminal statutes and regulations backed by criminal penalties, what becomes of the mens rea principle that people deserve criminal punishment only if they engage in conduct that is inherently wrong or that they know to be illegal?

Now comes “Rethinking Presumed Knowledge of the Law in the Regulatory Age” (Tennessee Law Review) by Michael Cottone, a federal judicial clerk. Cottone warns that as the mens rea requirement withers when the quantity and complexity of laws increase, the doctrine of ignorantia legis neminem excusat — ignorance of the law does not excuse — becomes problematic. The regulatory state is rendering unrealistic the presumption that a responsible citizen should be presumed to have knowledge of the law.

There are an estimated 4,500 federal criminal statutes — and innumerable regulations backed by criminal penalties that include incarceration. Even if none of these were arcane, which many are, their sheer number would mean that Americans would not have clear notice of what behavior is proscribed or prescribed. The presumption of knowledge of the law is refuted by the mere fact that estimates of the number of federal statutes vary by hundreds. If you are sent to prison for excavating arrowheads on federal land without a permit, your cellmate might have accidentally driven his snowmobile onto land protected by the Wilderness Act.

Regulatory crimes, Cottone observes, often are not patently discordant with our culture as are murder, rape, and robbery. Rather than implicating fundamental moral values, many regulatory offenses derive their moral significance, such as it is, from their relation to the promotion of some governmental goal.

The presumption of knowledge of the law is, Cottone argues, useful as an incentive for citizens to become informed of their legal duties. Complete elimination of the presumption would be a perverse incentive to remain in an ignorance that might immunize a person from culpability. But “there can be no moral obligation to do something impossible, such as know every criminal law,” let alone all the even more numerous — perhaps tens of thousands — regulations with criminal sanctions. The morality of law, Cottone argues, requires laws to be, among other things, publicized, understandable and not subject to constant changes. Otherwise everyone would have to be a talented lawyer, “a result hardly feasible or even desirable.”

Overcriminalization, says professor Reynolds, deepens the dangers of “a dynamic in which those charged with crimes have a lot at risk, while those doing the charging have very little ‘skin in the game.’” With a vast menu of crimes from which to choose, prosecutors can “overcharge” a target, presenting him or her with the choice between capitulation-through-plea-bargain or a trial with a potentially severe sentence.

Given the principle — which itself should be reconsidered — of prosecutorial immunity, we have a criminal-justice system with too many opportunities for generating defendants, too few inhibitions on prosecutors, and ongoing corrosion of the rule and morality of law. Congress, the ultimate cause of all this, has work to undo.