It’s hard to imagine the U.S. as a place where citizens have to fear overzealous prosecution, but last week’s reversals in the cases of former House Majority Leader Tom DeLay and five New Orleans police officers are part of a troubling pattern reminiscent of the Soviet criminal justice system — a system in which the state is always right, even when it is wrong.
In both cases, the judges who overturned the original trial-court verdicts cited instances of prosecutorial overzealousness and abuse of power, making the two cases the latest high-profile trials to run aground on the basis of misconduct by the state’s attorneys.
The high-profile cases in recent years run the gamut from the ancient offenses of murder and rape to increasingly esoteric details of campaign finance and contractor law.
In 2008, Sen. Ted Stevens of Alaska, the longest-serving Republican in the U.S. Senate, was charged by federal prosecutors with failing to report gifts. During the campaign season, Barack Obama said Stevens needed to resign “to put an end to the corruption and influence-peddling in Washington,” and Senate Majority Leader Harry Reid, Nevada Democrat, moved to have Stevens expelled.
Stevens lost the election, but three months later, FBI agents accused prosecutors of withholding exculpatory evidence that could have resulted in the senator’s acquittal. Newly appointed U.S. Attorney General Eric H. Holder Jr. asked the court to vacate Stevens’ conviction, but the damage already had been done.
The prosecutors’ misconduct destroyed Stevens’ reputation and political career and affected the balance of power in the U.S. Senate in favor of Democrats.
Circumstances were not entirely different in the prosecution of former U.S. House Majority Leader Tom DeLay, who was accused by local Democratic prosecutor Ronnie Earle to influence state elections with corporate money.
Mr. DeLay was convicted in 2010, but the Texas 3rd Court of Appeals overturned his conviction last week, saying the charges were based on “insufficient evidence.” Mr. DeLay called the indictment “an outrageous criminalization of politics,” but again, a Republican had been run out of politics. Mr. DeLay said he would “probably not” run for political office again.
Washington lobbyist and power broker Jack Abramoff is not as sympathetic a figure as Stevens or Mr. DeLay, but some reports indicate that the Justice Department intimidated Mr. Abramoff into a confession, and his case also revealed how the “honest services fraud” law gives federal prosecutors almost unchallengeable power.
Technically, the law lets prosecutors charge people when they “deprive another of honest services,” but it has been used as a catchall charge when the state is looking to secure an indictment from a grand jury but has exhausted all other options.
The U.S. Supreme Court eventually had to narrow the statutory meaning of the honest services fraud law, enacted in 1988, to avoid striking it down for unconstitutional vagueness.
William L. Anderson, an economics professor at Frostburg State University, once wrote of the law, “Have you ever taken a longer lunch break than what you are supposed to do? Have you made a personal phone call at work or done personal business on your employer’s computer? Have you ever had a contract dispute with an employer or client? All of those things can be criminalized by an enterprising federal prosecutor.”
In another case, five police officers were accused of murder in the fatal shootings of two men on a New Orleans bridge amid the chaos after Hurricane Katrina.
The officers were white and the victims black, and racial tensions were running high. Federal prosecutors turned to civil rights charges in accusing the officers.
Despite the Fifth Amendment’s double jeopardy prohibition, federal civil rights statutes enable U.S. prosecutors to pursue felony charges against a defendant in limited instances even if they have been acquitted of underlying state crimes.
Evidence in the New Orleans case was compelling, and the officers were convicted, but U.S. District Court Judge Kurt Engelhardt ordered a new trial last week, saying the government “engaged in a secret public relations campaign” by anonymously making extrajudicial statements against the defendants on a New Orleans news site.
“This case started as one featuring allegations of brazen abuse of authority, violation of the law and corruption of the criminal justice system,” he wrote in his order. “Unfortunately the focus has switched from the accused to the accusers. The government’s actions, and initial lack of candor and credibility thereafter, is like scar tissue that will long evidence infidelity to the principles of ethics, professionalism and basic fairness and common sense necessary to every criminal prosecutor, wherever it should occur in this country.”
The Duke University lacrosse players’ case is one of the most notorious of selective prosecution designed for political gain. North Carolina prosecutor Michael Nifong made numerous public statements incriminating the team and turning the media against the defendants.
Despite the accuser’s history of falsely reporting incidents and lack of evidence, Mr. Nifong pushed the politically popular case in the midst of his re-election campaign. State officials took over the case, dismissing all charges, taking the unusual step of declaring the defendants innocent — not merely “not guilty” — and Mr. Nifong was ultimately disbarred.
Russian author Fyodor Dostoyevsky once said that “you can judge a society by how well it treats its prisoners.” The same could be said of how fairly a judicial system prosecutes its accused defendants. Arrogance, not ethics, is emerging as criteria for prosecutorial discretion, and the result is a society based on fear, not freedom.
• Jeffrey Scott Shapiro is a former prosecutor in Washington, D.C.