Winnipeg Free Press - PRINT EDITION

Political prosecutors or persecutors?

Making DAs responsible to electors also made them desperate for results

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In one case, a celebrated and cerebral former media mogul, who has served 29 months of a 78-month sentence in a Florida correctional institute, and who has been out on appeal for nine months, is being sent back to jail for another eight to 12 months.

And in another case, a celebrated and brilliant economist and politician, has been charged with the sexual assault of a New York hotel maid in what initially appeared to be a straight-forward conviction for the state.

Whatever your particular opinion of the guilt, innocence or conduct of Conrad Black, the media mogul in question, and Dominique Strauss-Kahn, or DSK as he is known, the French economist, who until his recent legal problems was the head of the International Monetary Fund, it is difficult to dispute that both men (admittedly more for Black than DSK) have been the targets of powerful U.S. district attorneys and their prosecutors have been intent as much on showing that no one is above the law as they have been in seeking justice.

In November 2005, the Illinois district attorney charged Black with eight counts of criminal fraud for allegedly absconding with $600 million in his capacity as the CEO of the media conglomerate Hollinger International, Inc. A few months later, additional charges were laid for racketeering, money laundering and obstruction of justice. Prosecutors in Chicago claimed that they had a solid case to send Black to jail for the rest of his life.

Instead, after a lengthy trial a jury convicted Black of only three counts of mail fraud and the obstruction of justice charge for removing boxes from his Toronto office. In July 2007, Black was sentenced to 78 months in prison. Since then, the U.S. Supreme Court threw out two of the fraud charges because of an incorrect and unfair interpretation of the federal government's "honest services" law, under which he was originally convicted.

The case of DSK is less complicated. A notorious womanizer, Strauss-Kahn, who is married, is alleged to have attacked and raped a housekeeper who was tending to his suite at New York's Sofitel Hotel. DSK did not deny that he had sex with the maid, but claimed it was consensual. Nonetheless, he was charged with sexual assault in mid-May.

Now, six weeks later, the New York City district attorney and his team of prosecutors have conceded that the housekeeper lied to the Grand Jury; that after the alleged attack she continued to do her housecleaning duties before she later that day reported the incident to the hotel manager; and that she was probably plotting with her boyfriend, a convicted drug dealer, to extort money from Strauss-Kahn. Reluctantly, prosecutors are reconsidering the case, since the likelihood of a conviction appears remote.

If you review the comments and actions of the prosecutors in both cases, it is hard not to think of Jack McCoy, the self-righteous assistant district attorney played for many years by Sam Waterston on the television show Law and Order. Waterston, as annoying as he was, captured the intense desire of real-life American prosecutors to secure convictions at nearly any cost. In some episodes, it was almost facts and fairness be damned as long as the alleged perpetrator went to jail -- and the conviction of a wealthy businessman or politician was all the sweeter.

That high-and-mighty approach is not entirely fictional and has been a feature of the American legal system for more than a century.

While laws and courts in the U.S. evolved from its British heritage, Americans moved quicker than the British did to make prosecution a public process rather than leaving it the hands of private individuals.

States also closely guarded their rights, so that prosecutors became tied to the interests of their local governments. Then in the 1820s, in an era of popular democracy, some states began electing their district attorneys; today only four states and the District of Columbia do not.

The idea was to make the DAs answerable directly to the people, yet owing to the nature of the work, that had its own particular challenges.

One issue, though, did become clear: DAs who wanted to keep on being elected had to show the people that criminals were punished and justice was done.

The DAs and their appointed prosecutors, with seemingly unlimited resources at their disposal, decided when to press charges, what charges to make against an individual, what evidence to disclose to the defence (although since the early 1960s, U.S. Supreme Court rulings have sided with the defendant for full disclosure as part of the due process of law), and most importantly, when to drop charges against an accused. Angela J. Davis, a professor of law at American University in Washington, D.C., was a public defender for the Public Defender Service for the District of Columbia for 12 years.

"It was then that I learned of the formidable power and vast discretion of prosecutors," she has written. "During my years at PDS, I noticed that prosecutors held almost all of the cards, and that they seemed to deal them as they saw fit. Although some saw themselves as ministers of justice and measured their decisions carefully, very few were humbled by the power they held. Most wanted to win every case and winning meant getting a conviction."

It is a great historical irony that the U.S., a country which was built on checks and balances and a rejection, even fear, of too much power falling into the hands of any one person, should now have a legal system where a district attorney and his small army of prosecutors are fairly invincible.

As a consequence, Davis adds, "prosecutors, unlike judges, parole boards, and even other entities within the executive branch such as police, presidents and governors, have escaped the kind of scrutiny and accountability that we demand of public officials in a democratic society."

Beyond pleading not guilty to the sexual assault charge, Strauss-Kahn has not said anything else publicly about his case. There is speculation in the French press, however, that his political career is not done yet.

The erudite Black, meanwhile, has not stopped writing -- he has a new book out about his case in the fall -- or speaking about the unjust and vindictive treatment he believes he has received. And, apart from appeasing Chicago prosecutors, there does not seem to be much point in having Black, 66 and not in the best of health, return to jail until March or April 2012. Illinois Judge Amy St. Eve, herself a former prosecutor, no doubt felt she had no choice but to punish Black a bit more.

It has been difficult for Black, "a notoriously emphatic champion of America for decades," as he calls himself, to concede that the U.S., as only he could put it, is "a prosecutocracy amok in a carceral state."

Indeed, as of 2009, 7.2 million people, or three per cent of the U.S. adult population, were in jail, on parole or on probation.

If that's not an example of a "Frankenstein Monster," as Black deems it, then what is?

 

Now and Then is a column in which

historian Allan Levine brings a historical perspective to the major events of today.

Republished from the Winnipeg Free Press print edition July 6, 2011 A10

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