24 November 1998. Thanks to BD.

Associated Press, November 21, 1998

Paper: Fed. Prosecutors Break Law

PITTSBURGH (AP) -- Federal agents and prosecutors around the country
have repeatedly broken the law over the past decade in pursuit of
convictions, the Pittsburgh Post-Gazette said it found as the result of
a two-year investigation.

The newspaper, in a 10-part series that begins Sunday, said it found
examples of prosecutors lying, hiding evidence, distorting the facts,
engaging in cover-ups, paying for perjury and setting up innocent people
to win indictments, guilty pleas and convictions.

Federal officials rarely were punished for their misconduct, despite the
fact that they caused some victims to lose their jobs, assets and even
families, the newspaper said. It also reported that some victims went to
prison because prosecutors withheld favorable evidence or allowed
fabricated testimony, while some criminals walked free as a reward for
conspiring with the government.

``It's a result-oriented process today, fairness be damned,'' said
Robert Merkle, who served as a U.S. attorney in Florida from 1982 to
1988 and is now a defense lawyer in Tampa.

``The philosophy of the past 10 to 15 years (is) that whatever works is
what's right,'' he told the Post-Gazette.

The U.S. Justice Department, which oversees federal prosecutors, denied
the newspaper's allegations.

``Our prosecutors live by strict, comprehensive and effective ethics
rules,'' Myron Marlin, a department spokesman in Washington, told The
Associated Press. ``They are governed by the rules in the states where
they are licensed, the courts where the case is tried and by federal
regulation as well.

``Our office that oversees prosecutorial conduct (Office of Professional
Responsibility) reviews every complaint and vigorously pursues
prosecutors who cross the line.''

During the newspaper's investigation, the Justice Department did not
respond to questions it posed in writing, nor would it return phone
calls requesting comment.

The Post-Gazette said the problems have worsened as Congress has
eliminated many of the checks and balances designed to prevent the abuse
of power. For instance, federal sentencing guidelines say a person who
pleads guilty to a crime and is cooperative should receive a lesser
sentence than someone who fights a charge and is convicted at trial.

``The courts used to be a buffer between prosecutors and the rights of
defendants,'' said Bennett Gershman, a former New York State prosecutor
who teaches law at Pace University. ``They are now simply a rubber

No matter what offense a federal prosecutor may commit in pursuing an
investigation, a criminal defendant is practically powerless to sue for
damages, the newspaper found.

The Post-Gazette also said it found hundreds of examples of abuse in
discovery, which requires that federal prosecutors turn over to criminal
defendants any evidence that might help prove the defendants' innocence
or show lack of credibility on the part of prosecution witnesses.

``My attitude was that if you can't take the truth and win, then you
weren't supposed to win,'' said Gary Richardson, who had an ``open
file'' discovery policy during his tenure as a U.S. attorney in
Oklahoma, which ended in 1984.

In Richardson's office, defense lawyers were permitted to come in and
look at anything prosecutors had collected on a particular case.

Now that ``open file'' discovery policy simply doesn't exist, said
Richardson, now a defense attorney in Oklahoma City.

Rep. John Murtha, D-Pa., tried to rein in federal prosecutors with
legislation called the Citizens Protection Act, which would have
established an independent oversight board to monitor federal
prosecutors and require them to abide by state ethics laws. It also
provided sanctions against prosecutors who knowingly committed

Murtha decided to draft the legislation after watching an eight-year
federal investigation nearly destroy Rep. Joseph McDade, R-Pa., who in
1996 was acquitted of charges that he accepted gifts from defense
companies in exchange for helping them win lucrative contracts.

That case ``made me recognize the tremendous power a prosecutor has. I
could see that if they did this to a Joe McDade, an ordinary citizen has
no chance,'' Murtha said.