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
    stamp.''

    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
    misconduct.

    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.