CHAPTER THIRTEEN
DELETING BLACKSTONE
ON FEBRUARY 15, 2007, NPR reported that California state prisons are so badly overcrowded that governor Arnold Schwarzenegger was forced to transfer California prisoners to other states. Despite prison construction and privatized prisons, overcrowded prisons have become a serious problem in the United States, and it is not difficult to understand why. The United States has not only the largest percentage of its citizens imprisoned but also the largest absolute number of people in prison.
One of every thirty-two U.S. adults is behind bars. According to the International Centre for Prison Studies at Kings College in London, the United States has 5 percent of the world’s population and 25 percent of the world’s prisoners. The rate of incarceration in the United States is seven times higher than that of European countries. America has 700,000 more of its citizens in prison than authoritarian China, a country with a population four to five times larger than America’s. The United States has 1,330,000 more prisoners than crime-ridden Russia. Obviously, something is seriously wrong with the criminal justice system in “the land of the free.”
In the United States today there are more criminal offenses than anyone can possibly know. Moreover, prosecutors have become practiced at inventing novel interpretations of laws that people thought they understood. As intent has been rendered irrelevant to the commission of a crime, prisons are full of people who had no intention of breaking the law.
The practice of convicting citizens for violating vague and complex statues that they had no intent to disobey is a departure from the common-law tradition under which criminality requires both the intention to commit a crime and a criminal act. When law is vast, complex, and turgid, anyone can accidentally violate a statute or regulation. A legal system in which all citizens are open to prosecution is tyrannical.
Prosecutors have not only abandoned the common-law requirement of intent to commit a crime but also the common-law rule of strict construction of criminal statutes. Many drug arrests result from police entrapment. The police pose as drug users or sellers and arrest those who respond to their solicitations. Police-entrapment agents routinely practice entrapment in ways that maximize the felonies that can be charged.
For example, Michael A. Watson was deceived by an entrapment officer into supplying the officer with drugs. The entrapment officer led his victim deeper into criminality by offering to pay for the drugs with a firearm. The federal government then indicted Watson not only for selling drugs but also for the “use” of a firearm in a federal drug crime.
Watson had not used a firearm. He had merely accepted one in exchange for drugs. The Fifth Circuit federal appeals court, abandoning the common law, went along with the prosecutor’s intentional misinterpretation of “use” to mean receipt as payment. The case is now before the Supreme Court. For an excellent defense of strict construction, see the Amicus Curiae brief filed by the law firm of William J. Olson, P.C. (No. 06-571, May 4, 2007).
Such gross misinterpretations of statutes are euphemistically called broad interpretations. In the days when the United States still had Blackstone’s legal principles, entrapment cases were thrown out of court on the grounds that the police had initiated the crime. That police now create crimes, rather than solve crimes that occur independently of police provocation, might explain why the United States, the land of “freedom and democracy,” has an extraordinarily higher percentage of its population in prison than do authoritarian countries such as China.
Justice Sidetracked: Conveyor Belt to Conviction
The inroads that Benthamite thinking has made on Blackstonian legal principles are ominous in light of recent claims by neuroscientists that it is now possible to scan people’s brains and read their thoughts. The claim that a machine can read a person’s thoughts strikes us as farfetched, but juries have convicted on less evidence. Many people have active imaginations, and most respond to disturbing events with conflicting emotions and confused thoughts. Benthamite justice could put away people based on imaginative or fleeting thoughts.
Even without Benthamite brain scans, American jails are overflowing because almost everyone indicted is convicted. Conviction rates are high, and hardly any of the convicted have had a jury trial. No peers have heard the evidence and pronounced the defendants guilty. In the U.S. criminal justice system, 95 percent or more of all felony cases are settled by self-incrimination in a plea bargain.
Before plea bargaining became the norm, prosecutors had to decide which cases to prosecute. This required them to examine the evidence and to investigate the defendant’s side of the story. Today evidence seldom comes into play. Instead, prosecutors negotiate with lawyers the crimes to which a defendant will enter a plea.
In place of the determination of innocence and guilt, criminal justice is a conveyor belt that convicts almost everyone who is charged. Every defense attorney knows that prosecutors can purchase testimony against a defendant by paying a “witness” with money, dropped charges, or reduced time. Many prosecutors become highly annoyed at any disruption of the plea bargain conviction process. A defendant who incurs the prosecutor’s ire is certain to be framed on far more serious charges than a negotiated plea.
Going to trial is no guarantee that an innocent person will be acquitted. Prosecutors routinely withhold exculpatory evidence and suborn perjury. Generally, jurors trust prosecutors and are unaware of their inventory of dirty tricks. Few jurors can tell the difference between bogus evidence and real evidence. For example, psychologists and criminologists have established beyond all doubt that eyewitnesses are wrong 50 percent of the time. Yet jurors usually believe eyewitnesses.
Many trial convictions are secured with informant testimony, a practice that allows prosecutors to reward an informant/witness for help in convicting a defendant with false testimony. Prosecutors have a number of sources of informants, such as persons facing indictment or “jailhouse snitches,” who, in exchange for benefits, are placed in the cell with a defendant to enable the snitch to be able to testify that the defendant confessed while they were in jail together. The fact that jurors believe purchased testimony is yet another reason defendants elect to avoid jury trials.
Prosecutors—and there are still a few—who are meticulous about their cases and fair to defendants show poor results compared to the number and rate of convictions attained by prosecutors who run plea bargain mills and frame-up factories. Thus, decent prosecutors are forced out by the greater success of the ruthless ones.
DNA testing pioneered by Barry Scheck of the national Innocence Project has resulted in the release of a number of wrongfully convicted people from prison, some of whom were facing a death sentence. In 2001, Texas passed a law allowing convicted persons to apply for DNA testing. Texas prosecutors were opposed to the law and have offered resistance to reviewing cases.
In 2007, Craig Watkins was elected Dallas County district attorney. Watkins said that his interest was in justice, not in the maximum number of convictions or in covering up wrongful convictions. When Watkins learned that 38 percent of incarcerated applicants granted DNA tests by Texas judges were exonerated, he agreed to work with the Innocence Project of Texas to review 354 cases going back to 1970.
“The system is on trial,” Watkins told a National Public Radio audience on February 20, 2007—and he is correct—but Southern Methodist University law professor Fred Moss told the Dallas Morning News (February 16, 2007) that he was concerned that Watkins would arouse ire from conservatives and district attorneys across the state. Admitting mistakes has never been a strong point of prosecutors, and law-and-order types tend to assume that anyone arrested is guilty.
In the past, judges could give light sentences to people they believed had been wrongfully convicted. But Congress passed legislation that took sentencing discretion away from judges. Today prosecutors hold all the cards.
Many conservatives believe that prisons are full of hardened criminals whom liberal judges are determined to release and allow to prey upon society. In truth, the largest percentage of prisoners are drug users who are victims of the conservatives’ “war on drugs.” Drug offenses account for 49 percent of federal prison population growth between 1995 and 2003. Many of these prisoners are mothers arrested for drug use. The greatest victims of the drug laws are the children whose mothers are incarcerated.
The vast majority of drug arrests are for use, not for dealing. Barry Cooper, a former police officer who made three hundred felony drug arrests during his eight-year career says, “The drug war is a failed policy, and the legal side effects on the families are worse than the drugs.” Looking back on his police career, Cooper says, “I was so wrong in the things I did back then. I ruined lives” (dallasobserver.com/2007-02-01/news/don-t-go-bust/full).
Not even the practice of medicine is safe from the war on drugs. In the New York Times (March 27, 2007), John Tierney reports that federal prosecutors have criminalized prescribing painkillers. Some medical doctors have received long prison sentences for not realizing that they were being deceived by patients who were selling the painkillers. In America today prosecutors are second-guessing every decision we make in order to criminalize it. The prescription of pain medication is second-guessed, as are child-disciplinary decisions of parents, decisions of accountants and corporate managers, and decisions of home residents when confronted by intruders. Much of what we do can be second-guessed and portrayed in a criminal light.
Locking Up Teenagers for Consensual Sex
Another rapidly growing crime is underage sexual activity. There are many indications that females are becoming sexually active at younger ages. As females become sexually active at younger ages and teenagers are increasingly bombarded with sexual images, state legislatures have stupidly raised the age at which it is legal to engage in sexual activity. Today, a significant percentage of new prisoners are young men imprisoned for engaging in sexual activity with teenage girls.
Wright Thompson, writing in ESPN, tells the story of how Douglas County, Georgia, district attorney David McDade and prosecutor Eddie Barker gratuitously ruined the life of Genarlow Wilson, a seventeen-year-old black high school football star and honor student being recruited by Ivy League universities and prestigious colleges.
At a party with friends, sexually aggressive teenaged girls livened the evening for the boys. One girl initiated oral sex on several of the boys. She was fifteen years old, and the pleasure she gave Wilson was captured on video and fell into police hands.
The police used a law designed to prosecute pedophiles and charged Wilson with child rape and aggravated child molestation. Everyone, including the girl and her mother, agreed that the girl was the instigator, but the prosecutors insisted that Wilson was the molester.
The prosecutors offered plea bargains, which the other defendants accepted. Wilson refused because it would put him on the sex offender registry and he would not be permitted to live at home with his younger sister. His mother could not handle the breakup of the family.
In the days when crime required intent, and prior to the many traps that “child advocates” have created for teenagers, a promising young man would not have received a ten-year mandatory minimum sentence for an act that, according to news reports, girls routinely perform. No one was demanding that Wilson be prosecuted. It was entirely the prosecutors’ idea to destroy Genarlow Wilson.
In Genarlow Wilson’s case, prosecutors went out of their way to accomplish injustice. The Georgia law against aggravated child molestation is intended for use against adult sexual predators. The Georgia legislators wrote an exemption into the law specifically to cover consensual sexual intercourse between minors, which is a misdemeanor, not a felony. But as the exemption did not mention oral sex, the prosecutor indicted Wilson under the felony charge.
A number of distinguished people, including former president Jimmy Carter, criticized the prosecutors. In 2006, the Georgia legislature closed the loophole that the prosecutor had used to ruin Wilson’s life. On June 11, 2007, Georgia Superior Court judge Thomas H. Wilson ordered Genarlow’s release from prison. In his release order Judge Wilson wrote, “If this Court, or any court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish: Justice being served in a fair and equal manner.”
Unmoved by the Superior Court’s demand for justice, Georgia attorney general Thurbert E. Baker refused to release Genarlow and appealed Judge Wilson’s ruling. This is the typical response of the prosecutorial system: “Justice? We don’t want no stinking justice!” In October 2007, the Georgia Supreme Court overturned Wilson’s conviction in a 4–3 decision and released him from prison.
Rutgers University Law School professor Sherry F. Colb sums up the case on the Web site FindLaw: “If we did not know that Wilson’s disturbing predicament had arisen in the United States, we might assume that we were hearing about a case in a theocracy. His case, however, sheds light on a disturbing fact regarding our criminal justice system, a reality about which we have grown complacent: people in the U.S. are routinely condemned to spend years in brutal prisons as punishment for behavior that harms no one.”
Fabricated Child-Porn Cases
Examples of prosecutorial disdain for justice are endless. On February 13, 2007, CBS News reported that Julie Amero, a substitute schoolteacher in the small town of Norwich, Connecticut, was convicted of exposing students to pornography on the classroom computer.
What happened was this: While Amero was temporarily out of the classroom, the seventh-grade students went online to a hairstyles site. Pornographic pop-up ads were attached to the site, and pornographic images began appearing on the screen. The CBS report does not explain how police got involved, but perhaps it was parental complaints after hearing reports from kids who might have thought the experience hilarious for the embarrassment it caused the teacher.
However, CBS does report the statement of the school’s principal, Scott Fain, who said the computer lacked the latest firewall protection because a vendor’s bill had gone unpaid. CBS also reports statements from several computer experts that today there is “a huge problem” from adware programs and browser hijackers that redirect computers to porn sites. CBS reports that “the Federal Trade Commission has been cracking down on companies accused of spreading malicious spyware to millions of computer users worldwide.”
The fact that someone at a distant and unknown location can cause unwanted images to appear on a person’s computer is beyond the comprehension of many jurors. Unfortunately for Amero, she had a small-town, self-righteous jury. She was convicted on the basis of prosecutor David Smith’s contention that Amero intentionally clicked on porn Web sites in order to intentionally show the images to the seventh graders.
That juries believe such utter nonsense is one reason many innocent people admit to a negotiated crime in order to avoid a jury trial.
Amero’s conviction is especially inexcusable, because almost three years previously, on May 11, 2004, Wired reported that browser hijackers, such as CWS, can redirect computers to illegal child-porn sites. According to Wired, an authority on this subject, browser hijackers not only produce pop-up ads for pornography but also add dozens of bookmarks. All a person has to do to end up with child porn on his or her computer is to mistype a URL or purchase a used computer that had been used intentionally or unintentionally to visit porn sites.
Many Americans have lost their jobs and gone to prison because of browser hijackers. This is a well-established fact that prosecutors know, but they continue to take advantage of the victims of browser hijackings. Like the drug laws, the child-porn laws are enforced against the consumers more than against the purveyors. If the police can learn from Yahoo and other search engines when child porn has appeared on a person’s computer, they equally should be able to locate the Web site. The fact that it is the users, including the victims of browser hijackers, who are prosecuted has led many to conclude that the child-porn sites are operated by the police.
This is not a farfetched supposition. Just as police conduct stings for drugs and prostitution, they no doubt conduct stings for Internet crimes.
To be truthful, it is not only prosecutors who get their jollies by ruining people. It is also employers, employees, neighbors, jurors, wives, husbands, boyfriends, girlfriends, and children. Ruining people is not a monopoly of the police and prosecutors. In olden times, people understood that it was the high and mighty who ruined people, and they stood against it. Kings and aristocrats were forced over centuries to accept that they were accountable to law like commoners. This was the birth of liberty. Today the people destroy their inheritance of liberty by participating in the ruining of their fellows.
Both Rich and Poor Suffer Abuses
As the Wilson and Amero and any number of other cases demonstrate, “prosecutorial discretion” is in a deplorable state of disrepair. The public can no longer rely on prosecutors to exercise good judgment in deciding what cases to prosecute. Perhaps the worst recent case of prosecutorial bad judgment is the decision of district attorney Reed Walters to indict six black high school students in Jena, Louisiana, on second-degree murder and conspiracy charges.
According to news reports, the “Jena 6,” as the black students are now known, sat under a shade tree during a school break that white students considered their space. Consequently, the black students endured racial harassment, including nooses hung from the tree, and one of them was beaten by white classmates when he attended a party.
No charges were brought against the whites, but when one of the white students was beaten in turn, the blacks were arrested. Their bails were set at figures far beyond their families’ abilities to post, and they sat in jail.
The beating that the black students gave the white student was brutal and inexcusable. Despite that, in what has become common prosecutorial practice, Walters overcharged the black students and made them martyrs. By overcharging the students, Walters worsened race relations in the community and turned the blacks into victims of racism. In place of remorse on the part of the blacks, Walters gave them celebrity.
Under pressure from adverse publicity, the district attorney reduced the charges to aggravated second-degree battery, an equally false charge considering the charge requires the use of a weapon, and no weapon was involved. As we go to press, the fate of the “Jena 6” remains undecided.
Such injustices have given rise to the view that poor people’s lack of resources makes them unique victims of persecution by police and prosecutors. Indeed, it is a mainstay of left-wing propaganda that the rich buy the justice that the poor cannot afford. The view that only the poor suffer wrongful or unlawful prosecutions is incorrect. In previous chapters we have shown that even multibillionaires, such as Michael Milken, and paragons of the political establishment, such as Clark Clifford, are helpless if prosecutors decide to frame them. So was Martha Stewart.
In 2001, Martha Stewart’s broker called to tell her that the CEO of a company was selling shares of his company, one in which Stewart had a position too small to have any effect on her wealth. Neither the broker nor Stewart knew the “inside information” that caused the insider to sell. Stewart was not an insider and did not have inside information. Nevertheless, Stewart was investigated and made to think she had committed insider trading.
The SEC has refused to define “insider trading” because knowing what the crime actually is would permit people to avoid committing it. Not knowing whether they had committed a crime or not, Stewart and her broker gave an explanation for the sale that not even the most overreaching prosecutor, head-hunting for a celebrity, could construe as insider trading. Stewart was convicted on the testimony of another person, not for insider trading but for allegedly lying about the reason she gave for selling her stock, itself a legal transaction.
In America today, a citizen no longer has to be under oath to be prosecuted for lying to a federal officer. Federal officers, however, are free to lie to the citizen in order to entrap them.
The reason for Martha Stewart’s prosecution had nothing to do with any crime or any harm to anyone. It had to do with garnering name recognition and fame for the prosecutor, who had political ambitions.
In a case against the accounting firm KPMG, and some of its employees, the U.S. Department of Justice employed a new method of coercing defendants into pleas. Federal prosecutors made a deal with KPMG in which the firm retracted its obligation to pay for legal counsel for the defendants in exchange for the firm receiving a free pass in the form of a “deferred prosecution.”
Deprived of the firm’s resources, the defendants would be less able to afford a trial and could be coerced into self-incrimination with a plea bargain. In reviewing the deal, federal district judge Lewis Kaplan of the southern district of New York ruled that the Justice Department “violated the Constitution it is sworn to defend” as well as the rights of the defendants to a fair trial. “The Court concludes,” wrote Judge Kaplan in his ruling, that “KPMG refused to pay because the government held the proverbial gun to its head. Had that pressure not been brought to bear, KPMG would have paid these defendants’ legal expenses.”
Judge Kaplan reminded the U.S. Department of Justice that “as a unanimous Supreme Court wrote long ago, the interest of the government ‘in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ Justice is not done when the government uses the threat of indictment—a matter of life and death to many companies and therefore a matter that threatens the jobs and security of blameless employees—to coerce companies into depriving their present and even former employees of the means of defending themselves against criminal charges in a court of law. If those whom the government suspects are culpable in fact are guilty, they should pay the price. But the determination of guilt or innocence must be made fairly—not in a proceeding in which the government has obtained an unfair advantage long before the trial even has begun.”
The Justice Department’s actions in the KPMG case would have constituted extortion if they had been committed by a private party. To avoid indictment—and hence destruction—KPMG was forced to change its formal opinion on the validity of tax shelters that it had created and sold, to declare those shelters to be fraudulent, and to be available to assist in the prosecution by testifying against its former partners and employees. In other words, factual history was rewritten in behalf of the prosecution.
The granddaddy of all accounting cases is the Arthur Andersen case. After the accounting firm had been destroyed by federal prosecutors, the U.S. Supreme Court overturned the conviction with a ruling that the statute under which the conviction was obtained contains a requirement of intent to obstruct justice, and that no intent on the part of the firm to impede the investigation had been proved by the prosecution or found by the jury. The destruction of the firm was totally gratuitous and was achieved by the dubious act of indicting the entire partnership as an entity instead of the suspect individuals.
The DOJ and Congress responded to the Supreme Court’s ruling with Sarbanes-Oxley, a law that eroded the “intent” requirements in the Supreme Court’s Andersen opinion and criminalizes accounting mistakes. Sarbanes-Oxley requires a firm’s CEO and CFO, who seldom have accounting backgrounds, to attest to the validity of the firm’s accounting reports. If the reports contain a “material error,” the government can prosecute the CEO and CFO.
Arthur Andersen’s destruction was meant as an object lesson. Any firm that attempts to defend itself in a court of law will be destroyed by the Justice Department which has few limits left on its power.
Attorney-Client Privilege Overturned
Once upon a time in America, attorneys were expected to represent the interests of their clients. Those days have passed. Today the U.S. Department of Justice expects attorneys to help to convict their clients. Attorney Lynne Stewart found that representing a client is a surefire way of being sentenced to prison.
Lynne Stewart was assigned the task of representing a blind Egyptian sheik regarded by the U.S. government as a terrorist. In accepting the case, she acknowledged a letter from a prosecutor telling her how she could and could not defend her client. Stewart was told that special administrative measures had been applied to her client. She and her client would not be permitted attorney-client privilege, and she was required to permit the government to listen to her conversations with her client. She was told that she could not carry any communications from her client to the outside world. She signed the acknowledgment and proceeded to defend her client as a lawyer would.
Federal prosecutors claimed that Stewart broke their prison rules, which are themselves a violation of attorney-client privilege, and that Stewart’s “egregious, flagrant abuse of her profession, abuse that amounted to material support to a terrorist group, deserves to be severely punished.” The U.S. government’s attack on Stewart and the attorney-client privilege was the opening gun of the government’s drive to deprive “terrorist suspects” of constitutional protections, even if indicted and tried in the court system.
Stewart was indicted and convicted for violating a “law” consisting of a letter written by a prosecutor, a law that has not been passed by Congress and a law that is not to be found in the U.S. code. Her Arab-language translator, Mohamed Yousry, was also convicted. Yousry had signed no agreement to abide by prison rules, but the federal prosecutors argued that he was guilty by association.
Stewart, being legally competent, realized that the agreement she signed was unconstitutional under both the First and Sixth Amendments. The government, perhaps, had a right to impose a minor administrative sanction on Stewart for violating the agreement that she had signed, but no prosecutor has the power or authority to turn a prison rule or a letter penned by him or her into a felony offense. Prosecutors are not empowered to write laws by penning agreements that lawyers sign. But they did, and a jury terrified by terrorism agreed that letters written by prosecutors or rules declared by prison officials are the equivalent of laws passed by the U.S. Congress.
The state of justice in the United States has fallen so low that Lynne Stewart was sentenced to twenty-eight months in prison for representing her client.
Fabricated Sex Abuse Cases
Prosecutors get away with their violations of justice, law, and ethical behavior because no one is prepared to hold them accountable. Occasionally, a judge denounces prosecutors for their misbehavior, but they are not indicted for their crimes against people and against justice. A prosecutor either succeeds with a case, regardless of whether it is a frame-up, or he fails. He does not go to jail for violating the laws of states and the United States, for withholding exculpatory evidence, for suborning perjury, for prosecuting a case that he knows is false, or for any other crime he commits in his drive to ruin as many people, innocent or guilty, as he possibly can.
If recognition was given annually for the most abusive and unjust prosecution, certainly the prosecutors in the Wenatchee, Washington, child sex abuse witch hunt would have received recognition, as would have the prosecutors in the Little Rascals Day Care child abuse case in North Carolina, the Amirault child-care case in Massachusetts, the McMartin child-care case in California, and Janet Reno’s Florida child abuse witch hunts. All of these cases were characterized by the total absence of any physical evidence, but that did not stop prosecutors from presenting preposterous charges, extracted from children by “child advocates” and “child specialists,” of being sexually abused aboard a spaceship in outer space. In most cases jurors, swayed by irresponsible media, accepted the prosecutors’ contentions that “something must have happened.”
It is not conceivable that any of the prosecutors responsible for these latter-day Salem witch trials believed a word of the charges responsible for ruining the lives of so many people. The cases were brought for one reason alone: to gain name recognition for the prosecutors. Eventually the convictions were overturned as a result of unrelenting scrutiny by investigative reporters and the efforts of law school innocence projects. However, in the Wenatchee case, many parents never recovered children who were put out for adoption. The prosecutors, police, and Child Protective Services bureaucrats, who gratuitously ruined the lives of their fellow citizens, were not arrested and put on trial for their real crimes and their inhumanity.
As this book is being revised, the prosecutor who deserves recognition as the most evil in the land is North Carolina district attorney Michael Nifong, the infamous prosecutor who hyped the alleged rape of a black stripper by members of Duke University’s lacrosse team. Nifong’s fabricated case has fallen apart, thanks in part to articles by Dr. William Anderson (see his archive at LewRockwell.com) and others.
Despite the collapse of the rape charges, the state of North Carolina, reluctant to admit a mistake, initially refused to let go of the lacrosse team members. Many predicted that North Carolina would keep the case alive with lesser charges until the defendants’ legal bills, which had reached $5 million, would break the families and force the defendants into a plea bargain that would save the state’s and Nifong’s reputation. However, growing public outrage forced North Carolina’s attorney general to dismiss the indictment against the three Duke University lacrosse players.
The Duke “rape case” is perfect proof that the same kind of ignorance and biases that produced the Salem witch hunt in early-seventeenth-century America are still operative today. As the stripper is black and the accused are white jocks, every bias familiar to our politically correct environment went into immediate play. The Duke faculty and president came out against the white athletes, and the NAACP demanded “justice,” by which it meant a lynching. The media, of course, went with the prosecutor, and the young white boys were as good as convicted.
What saved them is that Nifong, glorifying in the power of a prosecutor, was too reckless, and pride ran away with him. He made it too clear that he was going to convict the defendants despite the overwhelming evidence of their innocence. Prosecutors have escaped accountability for so long that Nifong overreached.
On June 16, 2007, a North Carolina ethics panel disbarred Michael B. Nifong for bringing indictments that he knew to be false. Superior Court Judge Orlando Hudson immediately suspended Nifong, and a sheriff stripped Nifong of his badge and the keys to his office. Civil charges are likely to be filed against Nifong, but will he be criminally prosecuted for intentionally trying to destroy three innocent young men?
Law professor David Feige thinks not. Nifong is far from being an outlier. He is typical. Nifong is the norm. He is not a “rogue prosecutor who gives the system a bad name.” Feige writes, “Despite their terrifying power to ruin lives, prosecutors are afforded almost unparalleled discretion to do their jobs and extraordinary deference from the courts. As a result, serious sanctions for prosecutorial misdeeds are virtually unheard of. This makes it highly unlikely that Nifong’s comeuppance will deter aggressive prosecutors. Instead, his punishment will be seen for what it is: a freakish anomaly” (Slate, June 18, 2007).
George Washington University Law School professor Jonathan Turley, and a large number of defense attorneys and legal commentators, agree with Feige. Turley writes in the June 24, 2007, Washington Post that “what’s most remarkable about” Nifong being “disbarred for ‘dishonesty, fraud, deceit and misrepresentation’…is how rare it is” for prosecutors to be held accountable. Turley provides a number of examples that show that “history is rife” with prosecutors “convicting the innocent to satisfy the public” or to further their own ambition.
Our rights bequeathed by the Founding Fathers for the protection of the innocent were tottering on eroded and collapsing foundations when the Bush administration launched its assault on our crumbling rights in the name of its “war on terror.”