Prosecutors Out of Control

Posted: Nov 29, 2007 7:56 AM
Prosecutors Out of Control

The actions of former-District Attorney Mike Nifong in the Duke University lacrosse case have put the problem of prosecutorial abuse front and center for all Americans. 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. Regardless of the merit if the case is sexy enough, the media pay attention.

The same cannot be said for less popular cases. As a result, we are moving toward a system where Constitutional rights of the accused are guaranteed only to those deemed by television editors to be ready for prime-time. In cases where the public interest is of lower intensity, prosecutors seem to have almost free reign. One need only go to the home district of the new Attorney General Michael Mukasey and Senate Judiciary Committee member Sen. Charles Schumer, to demonstrate the problem.

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. At about the same time, he also prosecuted three cases against members of the Tollman family, a wealthy family based 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 Okula being criticized by the judges of three nations.

In the KPMG case, Okula's 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 went 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 rebukes by three courts in three different countries, Okula continues to practice law, ready to once again run roughshod over the Constitutional rights of defendants. From the court documents, it is clear the prosecutions never should have been brought in the first case. But the rich make easy targets and provide prosecutors a reputation for being for the little guy, which does not hurt if one has political ambitions in a democracy.

Should we care about injustice against the rich as with the KPMG executives or the wealthy Tollman family? The Canadian judge reminds us why. "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."

As Thomas Jefferson warned us, "The price of liberty is eternal vigilance."