A reader asks:
I hear about “overzealous prosecutors” from time to time — prosecutors who throw justice out the window and just try to get someone convicted. Is this really a problem? And can you provide me with some examples of overzealous prosecution, if so?
I’d be happy to oblige your request.
As a preliminary matter, you should read Ken White’s article on prosecutorial overreach. Ken is a former Federal prosecutor who has “done the work,” so to speak, and directly experienced the “conviction at any cost” culture that permeates many prosecutors’ offices:
[S]tate and federal prosecutors routinely fall short of [their perceived] ideal. There are too many stories of convictions obtained through subornation of perjury, through suppression of exculpatory evidence, and through the willful use of unreliable, wrongfully obtained confessions … too many prosecutorial agencies develop a culture that treats victory as the only acceptable result; any defeat is a humiliating rebuke. They simply don’t contemplate the possibility that a not-guilty verdict might be the just result.
Of course, prosecutors have an ethical duty to the Bar to not prosecute crimes when they aren’t convinced of the Defendant’s guilt, or for any reason other than to serve the interests of justice. And yet it isn’t hard to find stories of prosecutors who pursued charges against defendants for political, professional, or perhaps even personal reasons (see further below).
One reason prosecutors can do this is because they have nearly limitless say in how the laws are enforced, particularly at the Federal level. As the U.S. Attorney’s manual notes:
The statutory duty to prosecute for all offenses against the United States (28 U.S.C. § 547) carries with it the authority necessary to perform this duty. The USA is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.
Another reason for this, as Mike Spindell notes, that prosecutors’ offices often serve as the first stepping stone to a successful political career, because everybody loves to hear about a prosecutor who’s “tough on crime:”
Many of today’s most prominent politicians began their legal careers as prosecutors and used their office to advance themselves. Rudy Giuliani parlayed his headline grabbing antics as a Federal Prosecutor into great wealth and a political career that made him a Presidential candidate. Yet most of the “convictions” that brought him fame and media attention were overturned at the appellate level. His grandstanding, such as the arrest of a young stockbroker accompanied by TV cameras ultimately resulted in the man’s acquittal, yet the impression of Giuliani as a “fighter for justice” remained in the people’s minds.
In one particularly egregious example of a prosecutor pursuing a criminal investigation for selfish reasons, U.S. Attorney Tanya Treadway vindictively pursued a Grand Jury indictment against Pain relief advocate Siobhan Reynolds, whom Treadway tried to silence after Reynolds began publicly advocating on behalf of a doctor whom Treadway was trying to indict. Needless to say, Treadway was not happy that Reynolds was trying to make Treadway look bad:
She first tried to get a gag order preventing Reynolds from talking about the case in public. Judge Belot said no. Several of Schneider’s patients say they were then visited by federal agents, who forced their way into their homes and took documents (including a letter Schneider had sent one of them from prison). Treadway next asked the judge to move the case out of town, arguing that Reynolds’ advocacy had tainted the jury pool (never mind Treadway’s own press conference). Belot denied the change of venue request, too.
Treadway then launched a grand jury investigation of Reynolds, presumably for obstruction of justice, though she told Reynolds’ attorney that she would neither confirm nor deny that an investigation was under way. She issued Reynolds a sweeping subpoena demanding all of her records for every case in which she has ever advocated on behalf of a doctor or patient—every e-mail, letter, and phone record, as well as Facebook wall posts and status updates. Complying cost Reynolds tens of thousands of dollars and hundreds of hours of labor. With help from the ACLU, Reynolds sued to have the subpoena quashed. She lost. A second judge, Julie A. Robinson, hit her with a $200 fine for contempt each day she didn’t comply. Robinson also declined Reynolds’ request to make the subpoena and related proceedings public, effectively imposing a seal on the subpoena, Reynolds’ challenge to it, and any materials related to either.
In time, Reynolds was forced into hiding, as she was unable to stand up to the enormous resources of Treadway’s office.
There are countless examples similar to this. George Will wrote in July of 2012 about the sad case of Nancy Black, an extraordinarily talented marine biologist who’s career was destroyed by federal authorities after someone on one of her boats whistled at a whale. During the ensuing investigation, federal agents proceeded to charge her with various crimes stemming from this and another incident, in which she allegedly fed killer whales in violation of federal law, a charge that bares only scant resemblance to the facts:
To facilitate photographing the killers’ feeding habits, she cut a hole in one of the floating slabs of blubber and, through the hole, attached a rope to stabilize the slab while a camera on a pole recorded the whales’ underwater eating.
So she is charged with “feeding” killer whales that were already feeding on a gray whale they had killed. She could more plausibly be accused of interfering with the feeding.
Nancy Black cashed in her life savings to pay for the legal fees, which are well in excess of $100,000. She has also been cut off from her friends and family, after federal agents told her colleagues not to speak to her. She has also had her financial accounts subpoenaed, despite the fact that the crimes she is charged with have absolutely nothing to do with her finances. If convicted, she faces up to 20 years in prison, and it all started because someone on a boat whistled at a whale—and the feds decided to slam her, interests of justice be damned.
Other examples abound, of course. And these anecdotes are say nothing of the common practice overcharging defendants with crimes that prosecutors know they can’t prove in court to scare Defendants into taking a plea. As Jonathan Rapping from John Marshall Law School notes:
Every day, all across America, prosecutors charge people with crimes that the criminal justice system is not sufficiently funded to handle. Most of the accused are indigent citizens forced to rely on the services of over-burdened public defenders. In a system that lacks the resources to resolve these cases at trial, or even to spend the requisite capital at the pre-trial stage, prosecutors have found creative ways to process the vast majority of these cases without the expense associated with providing the accused actual justice.
This doesn’t mean that it’s always unjust for a prosecutor to offer Defendants a plea deal. In fact, Defense attorneys regularly advise their clients to accept pleas that they believe are in their clients’ best interest. And to be sure, there are plenty of ethical prosecutors who do their best to enforce the law with a velvet glove rather than a mailed fist. But the ethical parameters of the plea bargain system change when a prosecutor overcharges a Defendant to scare them into taking a plea—something which happens with an unsettling degree of frequency at both the federal and state level.
With all this being said: there are prosecutors out there that genuinely try to do the right thing. I myself was almost hired by a NYC prosecutor’s office this year, in the hopes that I could spend my time there trying to soften the blows of the criminal justice system by giving out as many breaks as I responsibly could. Unfortunately, in too many cases, prosecutor’s offices become permeated by a culture of self-righteousness that leads inexorably down a road in which conviction rates serve as a proxy for real justice. Many genuinely good prosecutors find themselves unable to escape the pitfalls and incentives that lead prosecutors to exercise their office in a vindictive or unjust manner. As Paul Butler, a former federal prosecutor in Washington D.C., said regarding his chosen career: “I became a prosecutor because I hate bullies. I stopped being a prosecutor because I hate bullies.”
That doesn’t mean every prosecutor abuses their authority. But the number who do is troubling, to say the least.
