People who are not familiar with the criminal-justice system often tend to believe that the most powerful person in the courtroom is the judge. But that is not always true. Earlier this month, The Economist printed the following article called “The Kings of the Courtroom: How Prosecutors Came to Dominate the Criminal-Justice System:”
CAMERON TODD WILLINGHAM was accused of murdering his daughters in 1991 by setting fire to the family house. The main evidence against him was a forensic report on the fire, later shown to be bunk, and the testimony of a jailhouse informant who claimed to have heard him confess. He was executed in 2004.
The snitch who sent him to his death had been told that robbery charges pending against him would be reduced to a lesser offence if he co-operated. After the trial the prosecutor denied that any such deal had been struck, but a handwritten note discovered last year by the Innocence Project, a pressure group, suggests otherwise. In taped interviews, extracts of which were published by theWashington Post, the informant said he lied in court in return for efforts by the prosecutor to secure a reduced sentence and—amazingly—financial support from a local rancher.
A study by Northwestern University Law School’s Centre on Wrongful Convictions found that 46% of documented wrongful capital convictions between 1973 and 2004 could be traced to false testimony by snitches—making them the leading cause of wrongful convictions in death-penalty cases. The Innocence Project keeps a database of Americans convicted of serious crimes but then exonerated by DNA evidence. Of the 318 it lists, 57 involved informants—and 30 of the convicted had entered a guilty plea.
“The prosecutor has more control over life, liberty and reputation than any other person in America,” said Robert Jackson, the attorney-general, in 1940. As the current attorney-general, Eric Holder, prepares to stand down, American prosecutors are more powerful than ever before.
Several legal changes have empowered them. The first is the explosion of plea bargaining, where a suspect agrees to plead guilty to a lesser charge if the more serious charges against him are dropped. Plea bargains were unobtainable in the early years of American justice. But today more than 95% of cases end in such deals and thus are never brought to trial.
The pressure to plead guilty
Jed Rakoff, a district judge in New York, thinks it unlikely that 95% of defendants are guilty. Of the 2.4m Americans behind bars, he thinks it possible that “thousands, perhaps tens of thousands” confessed despite being innocent. One reason they might do so is because harsh, mandatory-minimum sentencing rules can make such a choice rational. Rather than risk a trial and a 30-year sentence, some cop a plea and accept a much shorter one.
In such negotiations prosecutors “hold all the marbles”, says Alexandra Natapoff of Loyola Law School. Mandatory sentencing laws prevent judges from taking into account all the circumstances of a case and exercising discretion over the punishment. Instead, its severity depends largely on the charges the prosecutor chooses to file. In complex white-collar cases, they can threaten to count each e-mail as a separate case of wire fraud. In drugs cases they can choose how much of the stash the dealer’s sidekick is responsible for. That gives them huge bargaining power. In Florida 4-14g of heroin gets you a minimum of three years in prison; 28g or more gets you 25 years.
In 1996 police found a safe in Stephanie George’s house containing 500g of cocaine. She said it belonged to her ex-boyfriend, who had the key and admitted that it was his. Prosecutors could have charged Ms George with a minor offence: she was obviously too broke to be a drug kingpin. Instead they charged her for everything in the safe, as well as everything her ex-boyfriend had recently sold—and for obstruction of justice because she denied all knowledge of his dealings. She received a mandatory sentence of life without the possibility of parole. Her ex-boyfriend received a lighter penalty because he testified that he had paid her to let him use her house to store drugs. Ms George was released in April, after 17 years, only because Barack Obama commuted her sentence.
Under Mr Holder the federal mandatory-minimum regime has been softened for non-violent drug offences. But this has only curbed the power of federal prosecutors, not state ones, and only somewhat.
Another change that empowers prosecutors is the proliferation of incomprehensible new laws. This gives prosecutors more room for interpretation and encourages them to overcharge defendants in order to bully them into plea deals, says Harvey Silverglate, a defence lawyer. Since the financial crisis, says Alex Kozinski, a judge, prosecutors have been more tempted to pore over statutes looking for ways to stretch them so that this or that activity can be construed as illegal. “That’s not how criminal law is supposed to work. It should be clear what is illegal,” he says.
The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with “co-operating witnesses”, once rare, have grown common. In federal cases an estimated 25-30% of defendants offer some form of co-operation, and around half of those receive some credit for it. The proportion is double that in drug cases. Most federal cases are resolved using the actual or anticipated testimony of co-operating defendants.
Co-operator testimony often sways juries because snitches are seen as having first-hand knowledge of the pattern of criminal activity. But snitches hoping to avoid draconian jail terms may sometimes be tempted to compose rather than merely to sing.
Sing or suffer
It is not unusual for a co-operator to have 15 or 20 long meetings with agents and prosecutors. It is hard to know what goes on in these sessions because they are not recorded. Participants take notes but do not have to write down everything that is said; nor do they have to share all their notes with the defence. The time that co-operators and their handlers spend alone is a “black hole”, says a prosecutor quoted in “Snitch: Informants, Cooperators and the Corruption of Justice”, by Ethan Brown.
Co-operators have become more common in corporate cases since the Justice Department started bringing in more lawyers experienced in dealing with organised crime. Business cases typically involve mountains of hard-to-fathom documents and turn not on actions but intent. Often, the only way to convince a jury that the defendant knew a transaction was dodgy is to have a former colleague say so.
A common way to recruit co-operators is to name lots of a defendant’s colleagues as “unindicted co-conspirators”. (In the Enron fraud case there were 114.) An unindicted co-conspirator can be indicted at any moment; his lawyer will therefore usually advise him, at the very least, not to annoy the prosecutor by helping the defence.
In 2009 James Treacy, a former executive of Monster Worldwide, an employment website, was convicted of illegally manipulating (or “backdating”) stock options and handed a two-year sentence. He blames “slanted” testimony by former colleagues turned co-operators. After his release, one of them asked to meet him. Over lunch she tearfully “described the government’s intimidation tactics,” he says. “Some were almost comical: broken chairs to sit in; investigators flashing their holstered guns; and long, miserable hours of ‘good cop, bad cop’ routines, with few water or bathroom breaks. Other techniques were more serious. Prosecutors played the innuendo game, suggesting an indictment if the witness did not co-operate.”
Mr Treacy has an axe to grind, but he is not alone in arguing that the system encourages embellishment, or in believing that some prosecutors overstep the mark because they hope to parlay courtroom victories into lucrative partnerships at law firms or platforms to run for public office.
Co-operators feature extensively in insider-trading cases. James Fleishman, a former manager at Primary Global Research, was first approached by FBI agents to help them ensnare his superiors. When he refused to co-operate, insisting he knew of no illegal activity, he became a target himself. His conviction rested on co-operation from two former clients who had been put under immense pressure to be helpful to prosecutors. (They told one they would seek to have him jailed for 50 years if he declined their offer.) In a self-published book, Mr Fleishman argues that the testimony of both was littered with fabrications, including phone conversations that never took place. The co-operators got probation. Mr Fleishman was jailed for 30 months.
There is no way to confirm Mr Fleishman’s version of events. There was, however, an intriguing moment at his trial. During cross-examination Mr Fleishman’s lawyer complained that his opposing number was mouthing words to a co-operating witness who appeared to be going off-script. The prosecutor’s response was: “If I did that, and I’m not disputing what he said…I’m sorry.”
It is not clear how often prosecutors themselves break the rules. According to a report by the Project on Government Oversight, an investigative outfit, compiled from data obtained from freedom of information requests, an internal-affairs office at the Department of Justice identified more than 650 instances of prosecutors violating the profession’s rules and ethical standards between 2002 and 2013. More than 400 of these were “at the more severe end of the scale”. The Justice Department argues that this level of misconduct is modest given the thousands of cases it handles.
Judge Kozinski worries, however, that there is “an epidemic” of Brady violations—when exculpatory evidence is hidden from defence lawyers by prosecutors. For example, in 2008 Ted Stevens, a senator from Alaska, was found guilty of corruption eight days before an election, which he narrowly lost. Afterwards, prosecutors were found to have withheld evidence that might have helped the defence. Mr Stevens’s conviction was vacated, but he died in a plane crash in 2010.
Prosecutors enjoy strong protections against criminal sanction and private litigation. Even in egregious cases, punishments are often little more than a slap on the wrist. Mr Stevens’s prosecutors, for example, were suspended from their jobs for 15 to 40 days, a penalty that was overturned on procedural grounds. Ken Anderson, a prosecutor who hid the existence of a bloody bandana that linked someone other than the defendant to a 1986 murder, was convicted of withholding evidence in 2013 but spent only five days behind bars—one for every five years served by the convicted defendant, Michael Morton.
Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems. Judge Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining—for instance by bringing in a magistrate judge to act as a broker. He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.
Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials. This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.
Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”
In the case of the City of Hollywood versus Eric Arem, an appeals court ruled that it is illegal for a private company to issue traffic tickets to people for running a red light. The court said that in Florida only law enforcement officers and traffic enforcement officers have the legal authority to issue citations for traffic infractions. That, in turn, means that only law enforcement officers and traffic enforcement officers are entitled to determine who gets prosecuted for a red light violation. Private companies are not allowed to make that determination.
Up until now, the court said, “it is the [private company] that decides which cases the [traffic enforcement officer] gets to review; it is the [private company] who initially determines who is subject to prosecution for a red light violation; it is the [private company] that obtains the information necessary for the completion of the citation; it is the [private company] that creates the actual citation; it is the [private company] that issues the citation to the registered owner of the vehicle; and, it is the [private company] that eventually transmits the traffic citation data to the court.” Because that procedure is illegal, the court said, the appropriate action for a judge to take is to dismiss those traffic tickets.
In order to be guilty of the crime of vehicular homicide, a person has to be driving a car or some other type of motor vehicle in such a reckless manner that it is likely that he or she will cause the death of, or great bodily harm to, another person.
There have been many cases in Florida where a driver was involved in an accident that resulted in someone else dying, yet the driver was found to be not guilty of vehicular homicide. For example:
1. In Luzardo versus the State of Florida, the driver was going 84 miles-per-hour in a 55 mile-per-hour zone.
2. In House versus the State of Florida, the driver was speeding in a stolen car.
3. In State of Florida versus Del Rio, the driver failed to see a woman pushing a baby stroller approximately 6 feet from the curb and 47 feet in front of the driver after the driver made a left turn at a T-intersection.
4. In Stracar versus the State of Florida, the driver drove her car into the opposite lane of traffic, she did not hit her brakes in order to avoid an accident, and she tested positive for alcohol, marijuana, and xanax.
5. In Berube versus the State of Florida, the driver stopped his car in the middle of the road, pulled into an intersection, and then tried to make a left-hand turn from the center lane in response to his passengers warning him about an approaching truck.
6. In State of Florida versus May, the driver, who was under the influence of strong medication, swerved across lanes of traffic and then off the road and into a yard.
7. In Miller versus the State of Florida, the driver was going 15 to 20 miles in excess of the posted speed limit, yet had control of his car and slowed down as he approached the intersection where the accident occurred.
8. In W.E.B. versus the State of Florida, the driver, a minor, had drunk some alcohol, was speeding, and drove off the road after over-correcting his turn.
In the case of Stephen Chesser versus the State of Florida, Mr. Chesser was charged with nine counts of possession of photographs depicting sexual conduct by a child with intent to promote. All nine photographs were found in a shed located on some property belonging to Mr. Chesser’s parents. Chesser later pled guilty to all nine counts but then appealed his sentence.
On appeal, he argued that because all nine photos were discovered in one search, there was only one episode of promotion, and therefore only one conviction for the above-stated crime was legally permissible. The court of appeals agreed with Chesser and ordered the lower court to dismiss eight of the nine counts.
In the case of Jennifer Kish versus the State of Florida, Ms. Kish was convicted of the crime of culpable negligence for allowing her three children–ages 10, 8, and 7–who were sick with cold and upper respiratory symptoms, to be left unsupervised for two to three hours after school until adults arrived home from work. The facts of Ms. Kish’s case are as follows:
Ms. Kish was called away to Jacksonville in the middle of the day because her mother had a medical emergency. Ms. Kish expected to return home late, after her children’s school day had ended, so she called the school and arranged for the school bus to drop off her three children at the home of her former husband and his wife (the “Meadows”). Ms. Kish had not done that before, but she trusted the Meadows.
Ms. Kish did not tell the Meadows about her emergency or that the children would be coming over after school. Although no one was at home when the school bus dropped off the children at the Meadows home at about 3:45 in the afternoon, the children let themselves in the house, did some homework, and watched TV. At some point during the next few hours, the 8–year–old began vomiting, the 7–year–old’s nose began to run, and the 10–year–old began running a high fever and panicking. Nevertheless, the 10–year–old cared for the other two children by cleaning them up in a bath and looking for medicine. When the Meadows arrived home around 6 o’clock that night they were surprised to see the children in their home, sick and unsupervised. And they were quite upset with Ms. Kish.
Ms. Meadows took the children to a hospital where the 10-year-old was diagnosed with bronchitis and the other two children were diagnosed with upper respiratory infections. When Ms. Kish arrived back from Jacksonville at about 9 o’clock that night, she didn’t find anyone at the Meadows’ house. She looked for them for a couple of hours before finally going to the hospital at around 11 o’clock. Later, the police arrived, questioned Kish, then arrested her.
The court of appeals reversed Kish’s convictions for culpable negligence because:
1. Ms. Kish encountered a family emergency in the middle of the day while her children were at school.
2. She immediately called her children’s school and arranged to have them taken to the home of people whom she trusted.
3. The children were not sick when Ms. Kish made those arrangements.
4. The three children were not so young that leaving them alone in familiar surroundings for a couple of hours could be considered culpable negligence.
5. The 10-year-old provided appropriate care for the other two children until the Meadows arrived home.
A “mandatory minimum penalty” refers to a federal law that requires a judge to sentence a person convicted of that law to a specified minimum term of imprisonment in the Federal Bureau of Prisons. There are approximately 200 federal laws that carry a mandatory minimum penalty. According to statistics published by the United States Sentencing Commission, there are primarily two ways to avoid a mandatory minimum sentence.
The first way is called the safety valve provision, and it has the following five requirements:
1. The person to be sentenced does not have more than one criminal history point under the federal sentencing guidelines.
2. The person to be sentenced did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce someone else to do so) in connection with the crime.
3. The crime did not result in death or serious bodily injury to any person.
4. The person to be sentenced was not an organizer, leader, manager, or supervisor of others in the crime, and was not engaged in a continuing criminal enterprise; and
5. Not later than the time of the sentencing hearing, the person to be sentenced has truthfully provided to the United States Attorney’s Office all information and evidence the person has concerning the crime.
The second way of avoiding a mandatory minimum penalty is called substantial assistance. It refers to assisting the U.S. Attorney’s Office in the investigation or prosecution of another person who has committed a crime. If the person to be sentenced has, in fact, rendered substantial assistance, some of the things the judge will look at are:
1. The significance and usefulness of the person’s assistance, taking into consideration the prosecutor’s evaluation of the assistance rendered.
2. The truthfulness, completeness, and reliability of any information or testimony provided by the person to be sentenced.
3. The nature and extent of the person’s assistance.
4. Any injury suffered, or any danger or risk of injury to the person or his family resulting from his assistance; and
5. The timeliness of the person’s assistance.
In order to prove the crime of aggravated assault, a prosecutor in Florida has to show that the person accused of committing that crime had a specific intent to do violence to someone else. What is important is the intent of the accused person and not the reaction of the victim.
For example, in the case of Reginald Swift versus the State of Florida, a police officer stopped Mr. Swift’s SUV and ended up pointing his gun at Mr. Swift. Swift didn’t like that so he drove off. In the course of doing so, the officer had to step out of the way of Swift’s oncoming car in order to avoid being hit. Swift was later charged with aggravated assault on a police officer.
The court of appeals ruled that Swift was not guilty of aggravated assault because:
1. Although the officer was in fear of being struck by Swift’s SUV when it was backing up towards him, the officer’s reaction was not enough to prove that Swift intended to threaten him.
2. No evidence was presented at Swift’s trial proving that Swift knew that the officer had run behind his SUV during the short amount of time that passed after Swift had pulled forward and before he began to back up a second time.
3. Although evidence was presented that Swift disregarded the officer’s command to turn off his engine, that by itself didn’t prove that Swift specifically intended to threaten the officer when he backed up.
In Florida, you can commit the crime of aggravated battery with a deadly weapon if you use your car to hit someone else’s car when they are inside it. For example, if you use your car to hit someone else’s car and the person in the other car is injured, or if he had to brace himself when the collision occurred, or if the collision jostled him about, or spun him around, or moved him about within his car, then you may be guilty of aggravated battery.
In the case of Maurice Walker versus the State of Florida, Mr. Walker was accused of aggravated battery on a police officer with a deadly weapon after the police tried to make a traffic stop by turning on their lights and sirens. Walker sped up and during the chase twice struck one of the patrol cars that was chasing him. Walker ended up losing control of his car and crashing into a median.
The court of appeals decided that Walker was not guilty of aggravated battery because:
1. Photographs showed that the exterior of the patrol car sustained only minor damage.
2. Although there was evidence that a police dog was injured when Walker’s car struck the patrol car, the officer driving the patrol car was not himself physically injured in any way by the collision.
3. Although the officer testified that he was scared when the collision occurred, no evidence was presented at Walker’s trial that the officer was ever jostled when his patrol car was struck twice by Walker’s car.
In the case of Hume Hamilton versus the State of Florida, Mr. Hamiton was an 82-year-old man who was out walking his dog on a leash when a cat got too close to the dog. The two animals began fighting, so Mr. Hamilton tried to separate them while keeping the leash on his dog. Unfortunately, the dog killed the cat, and Mr. Hamilton ended up being charged with the crime of animal cruelty. But not only was he charged with animal cruelty, he was also eventually convicted of that crime and sentenced to three years in prison.
Hamilton appealed his case, and the court of appeals ruled that he was not guilty of animal cruelty because he did not intend for his dog to kill the cat. The court of appeals said that Hamilton would have been guilty if he had taken the leash off of his dog so that it could attack the cat.
In the case of Thomas Smith versus the State of Florida, Mr. Smith was convicted of possession of methamphetamine and possession of chemicals used to make methamphetamine.
The case began when the police executed a search warrant at a home that was leased by a woman named Kelly Jiminez. The police found a Gatorade bottle containing methamphetamine as well as chemicals used to make methamphetamine. Both Smith and Jiminez were at home when the police executed the warrant. One of those officers later testified at Smith’s trial that he believed the apartment belonged to Jiminez and that she was Smith’s girlfriend.
The prosecutor relied on the following pieces of evidence to prove that Smith lived in Jiminez’ home and therefore had control over the methamphetamine and the chemicals used to make methamphetamine:
1. One athletic shoe size 11 or 11 1/2 that was located on top of a bookcase in a bedroom.
2. A picture found on a nightstand located in another bedroom which showed two men, one of whom was wearing a gas mask and holding a Gatorade bottle containing a white substance that might have been methamphetamine.
3. A gas mask found on a shelf in the same bookcase where the athletic shoe was located.
Smith was convicted of the drug charges. However, the Court of Appeals found that:
a. There was nothing unusual about Jiminez having a picture of her boyfriend located on her nightstand.
b. The fact that the man in the picture was holding a Gatorade bottle that might have contained methamphetamine was not evidence that Smith had control over the bottle that the police found during the search, which the evidence showed was actually a different bottle.
c. The fact that Smith posed for a photo wearing a gasmask similar to the one found by the police did not prove that he lived in Jiminez’ house on the day the police entered because no evidence was presented showing when or where that picture was taken.
d. The existence of a single shoe on the top shelf of the bookcase also did not prove that Smith lived in Jiminez’ house the day the police executed the search warrant.
Because the prosecutor’s evidence did not prove that Smith had what the law calls “dominion and control” over the methamphetamine and chemicals, the Court of Appeals reversed Smith’s convictions.