Rogue Prosecutors the Rule or the Exception?

Last week by a margin of 53-40 A divided Senate narrowly confirmed former federal judge Michael B. Mukasey as the 81st attorney general of the United States. Mukasey, had outraged many lawmakers and human rights groups by repeatedly refusing to classify waterboarding, a simulated-drowning technique, as torture.

What was not focused on in the hearings or the senate floor debate was the Senators failure to find out what Judge Mukasey intends to do about rogue prosecutors within the Department of Justice he may lead, and how the damage they cause affects public confidence in the department and its mission. While Judge Mukasey’s answer on water boarding may be important to the future of the country and the War on Terror, of at least equal importance is the whether Judge Mukasey would commit to taking strong disciplinary action against overzealous prosecutors by using all the tools at his disposal, including the Office of Professional Responsibility.

A once obscure topic, prosecutorial abuse has gained prominence in the minds of many Americans as a result of the Duke lacrosse case, and the actions of the prosecutor, former-District Attorney Mike Nifong. Nifong, although a local prosecutor, has become the poster boy of prosecutorial abuse on every government level. With a story line that included sex, racial tensions, and gender and income inequality, the Duke case captured the attention of the media and the nation. We now know that Nifong willfully disregarded evidence of the boys' innocence and thanks in large part to enormous public attention and condemnation, he has been rightly stripped of his badge and the keys to his office.

Similar attention is drawn to cases with strong partisan interest like the obstruction of justice case against Vice President Dick Cheney’s aid Scooter Libby and the corruption case against Louisiana Democrat William Jefferson, where public opinion is sharply divided but nevertheless intense. This pressure too provides a safeguard against prosecutors who overreach or simply trample Constitution rights.

While the media and the people act in these cases as the bulwark of liberty our founders envisioned, the same can not be said for less popular cases. As a result, we are moving toward a system where the safeguards provided by the Constitutional rights of the accused are guaranteed only to those deemed by television executives to be ready for prime-time. In cases where the public interest is negligible and of low intensity prosecutors seem to have almost free reign. Examples from the home district of Judge Mukasey, and Senate Judiciary Committee member Sen. Charles Schumer, prove instructive.

In USA v. Stein, Assistant United States Attorney Stanley Okula of the Southern District of New York (SDNY) was one of the lead prosecutors in a case against executives from accounting giant KPMG. In three cases against members of the Tollman family, he prosecuted cases against a wealthy family living in Britain and Canada. Rather than a made-for-Hollywood plot line, these cases lacked the sympathetic defendants or partisan interests it seems are now needed to have ones Constitutional rights guaranteed. Predictably, there was little noise from the media and public about these cases, despite AUSA Okula being found by to have effectively stripped defendants of their right to counsel, eviscerated attorney client privilege for the defendants, and having brought down a reign of prosecutorial hell on an entire family.

In the KPMG case, the government prosecution was found to have violated the defendant’s Fifth and Sixth Amendment rights. The judge wrote that the prosecutors “used their life and death power over KPMG to coerce its personnel to bend to the government’s wishes” and described the prosecutors actions as “outrageous and shocking”. In the Tollman cases—Okula has gone after the family in Canada, Britain and the United States—judges have been similarly critical, including a British judge describing Okula’s actions as “reprehensible” and a Canadian judge saying “misconduct of this sort cannot ever be tolerated”.

Despite this extraordinarily harsh criticism by three courts in three different countries, the prosecutor endures, ready to once again run roughshod over Constitutional rights in pursuit of his unique and perverted notions of justice.

Some may not find injustices against the wealthy a reason for concern, but they should. It is a Canadian judge in the case of United States v. Tollman who brings the issue into focus, reminding us why. He pointedly asks, “If the system went awry for [Tollman], what hope is there for the weak, the poor and those less powerful? The answer must be in the vigilance of the justice system itself.” That vigilance needs to begin the day the next US Attorney General is sworn in.

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