Prosecutors: Unleashing the Unstoppable

Independent counsel Kenneth W. Starr’s tactics in his relentless pursuit of President Bill Clinton have troubled many Americans. His excessive zeal and lack of accountability have helped fuel demands for repeal of the independent-counsel statute.

The statute may well be too flawed to retain. But its repeal will not curb prosecutorial excess or produce prosecutorial accountability. For the problem is not so much with independent counsels as with prosecutors in general. Everything done by Starr’s office that ignited outrage has been done by experienced prosecutors, who use similar tactics as standard operating procedure. As a former U.S. attorney explained, “These . . . tactics and strategies . . . are used by the Department of Justice every day.”

Starr’s assistants are well-known for playing hardball. Jackie M. Bennett Jr., a 42-year-old Justice Department veteran, was accused by a federal judge in Texas with pursuing a “rinky-dink” case in order to “get” someone in 1993, and by others with using grand juries to browbeat witnesses. Two other assistants, Michael W. Emmick and Bruce L. Udolf, were sanctioned for being overly aggressive: Emmick had a case dismissed, and Udolf was fined $50,000 for misconduct in the 1980s.

The initial interrogation of Monica S. Lewinsky, a 12-hour ordeal in a Pentagon City hotel, to which she was lured by Linda R. Tripp, acting for Starr’s office, was also not an unusual event in federal prosecutions. Alone, surrounded by Bennett, Emmick, Udolf and FBI agents, Lewinsky was discouraged from calling either her lawyer or her mother, Marcia V. Lewis. They threatened Lewinsky with 27 years imprisonment and even the indictment of her mother if she didn’t cooperate. Terrified, she says she contemplated suicide. Almost all bar ethics codes prohibit government lawyers from interviewing suspects outside the presence of their lawyers, but the Justice Department has consistently resisted and ignored these limitations.

The grand jury is a particularly fertile field for prosecutorial abuse. Neither federal nor state law imposes limits on who can be called before a grand jury. Robert Weiner, a press spokesman in the White House drug-policy office, was hauled before Starr’s grand jury for no discernible legitimate reason. The real reason was that Weiner had argued that Tripp be prosecuted for unlawfully taping her conversations with Lewinsky.

In the grand-jury room, witnesses are defenseless. They are not allowed lawyers, judges have almost no supervisory authority and prosecutors are free to intimidate, to deflect exculpatory testimony, to coach friendly witnesses and to make one-sided presentations to jurors. Lewis, called back again and again, was pressed so hard to reveal her daughter’s confidences that she broke down, sobbing, “I can’t take it anymore, I can’t stand it.” It seems indecent to force a mother to testify against her child--except in the most serious cases, such as murder or an Oklahoma City bombing. Yet, prosecutors routinely subpoena parents, sisters, brothers and lovers in run-of-the-mill cases, often pressuring them into testifying by threats of prison for perjury based on minor inconsistencies in testimony.

The major complaint against independent counsels is lack of accountability, but few, if any, prosecutors are held accountable for their actions. One reason is the absence of controlling guidelines. Law enforcement has been given immense unchecked discretion over investigative techniques. Moreover, the availability of many new crimes, together with the recent increases in penalties for minor offenses, have increased prosecutorial bargaining power, as have soaring law-enforcement budgets. Judicial control over sentencing used to curb excessive prosecutorial zeal, but that has now been largely eliminated.

Even when the rules are clear, many prosecutors ignore them. The independent counsel’s office, for example, violated justice department rules by offering immunity to Lewinsky outside the presence of her lawyer.

Leaks of grand-jury testimony violate federal and state law, not just internal regulations. Yet prosecution leaks are commonplace. Again, Starr’s office provides a good example: Federal judges not noted for hostility to prosecutors have found substantial evidence of 24 “serious and repetitive” leaks by Starr and his assistant, Bennett, one of the few times judges have bothered to look in to such matters.

Prosecutors have paid little attention to their constitutional duties as well. While they have no obligation to present evidence exculpating a prospective defendant to the grand jury, once a criminal case begins, they are under a constitutional mandate to provide the defendant with all exculpatory evidence in the government’s possession. This obligation is almost routinely dishonored and probably accounts for more miscarriages of justice than any other violation. For example, in a Florida case charging the defendant with soliciting a minor for sex, which the defendant denied, the government withheld evidence destroying the credibility of its lone witness. When the evidence eventually came out, the conviction was overturned.

That defendant was lucky. In many cases, the hidden evidence comes out--if at all--only after the defendant has been in prison for many years. In June 1997, Geronimo Pratt was released after 27 years behind bars because prosectors had concealed favorable evidence: those prosecutors are now judges. A recent study of homicide cases found that since 1963, some 381 convictions have been overturned for failure to turn over exculpatory evidence or for presenting evidence that prosecutors knew to be false. Sixty-seven of these cases involved the death penalty. Prosecutors have obtained homicide convictions against black men, knowing the real killers were white, and against a wife after hiding evidence that her husband had committed suicide. Another study found hundreds of cases within the last 10 years in which federal prosecutors either tolerated or encouraged perjury. When it was discovered, prosecutors argued it was “harmless error”--and usually got away with it. There is, obviously, no way of knowing how many other such cases there are, whether involving homicide or other serious crimes.

The worst prosecutorial offense is lying to a court. Starr’s office is being investigated with respect to something similar--whether they lied about prior contacts with the Paula Corbin Jones lawyers and misled Atty. Gen. Janet Reno, in order to obtain her approval to expand their investigation into the Lewinsky matter.

Lying by prosecutors occurs with dismaying frequency and is nothing new. During the Vietnam War, chief federal prosecutor Guy Goodwin swore that there were no government informers among a group of war veterans called before a grand jury. That was a lie, but nothing ever happened to Goodwin.

That, too, is nothing new. In the Wounded Knee case against the American Indian Movement, prosecutors repeatedly lied to the judge, altered documents and set illegal wiretaps. Though this led the judge to throw out the case, the prosecutors later received awards as outstanding assistant U.S. attorneys.

All in all, there is little to counter an advocate’s instinctive eagerness to win, an attitude sometimes accompanied by a conviction that the defendant is guilty regardless of the available evidence.

The flawed independent counsel law has indeed given Starr and his fellow vigilantes a unique opportunity to abuse their power. But repeal of the statute won’t solve the overall problem. The only way to do that is for the community to make it clear that it disapproves of such tactics, even if they do catch some crooks. Until that happens, our rights and liberties will remain vulnerable to what Justice Louis D. Brandeis called, “men of zeal . . . but without understanding.”