War on Crime Expands U.S. Prosecutors' Powers; Aggressive Tactics Put Fairness at Issue By Jim McGee Washington Post Staff Writer Public pressure to combat rising crime, together with 12 years of conservative administrations and a "law and order" Supreme Court majority, has transformed the U.S. criminal justice system and vastly expanded the powers of federal prosecutors over the past decade. The changes can be measured in numbers: The Justice Department's budget grew from $2.3 billion in 1981 to $9.3 billion today, while the number of attorneys, including those who prosecute on behalf of the government, has nearly doubled, to 7,881. At the same time, Justice Department policies and Supreme Court rulings have given prosecutors more flexibility than ever before in pursuing convictions, and made it increasingly difficult for courts or aggrieved individuals to hold federal prosecutors accountable for tactics that once were considered grounds for case dismissal or disciplinary action. These tactics include manipulation of grand juries; failure to disclose evidence favorable to a suspect or defendant; government intrusion into the relationship between defense attorneys and clients; intimidation of witnesses; and blitzkrieg indictments or threats of indictment designed to force capitulation without the need for a trial. Polls show that many Americans believe their federal court system still coddles criminal defendants. But a growing minority of federal judges and other legal experts say that the system has tilted too far in the other direction, and they have complained, in court opinions and journal articles, of a rising official tolerance for prosecution maneuvers they see as unfair, abusive and manifestly improper. Often sounding "procedural" or like "legal technicalities" to the layman, such tactics can result in a "radical skewing of the balance of advantage in the criminal justice system in favor of the state," as law professor Bennett L. Gershman put it in a recent law review article that he called "The New Prosecutors." "First, prosecutors wield vastly more power than ever before," Gershman wrote. "Second, prosecutors are more insulated from judicial control over their conduct. Third, prosecutors are increasingly immune from ethical restraints." These changes, critics like Gershman argue, have endangered both the fight against crime and the fairness of the American legal system. In some cases, critics contend, allowing prosecutors to pursue their cases too aggressively can result in the release of the guilty and legal ordeals for the innocent. Among the protesters are judges appointed by President Ronald Reagan for their "tough on crime" credentials. "The War on Crime, which is being waged in this country, is an important one with high stakes," wrote U.S. District Judge H. Franklin Waters of Arkansas' western district, a Reagan appointee, in a 1991 opinion setting aside a guilty verdict he thought was achieved through unfair government tactics. "But every person concerned with freedom and justice should recognize that, as in most wars, innocent persons are sometimes irreparably harmed." Conscious that such rulings often run against public sentiment, some of the dissenting judges see themselves as today's equivalent of jurists who made unpopular rulings in favor of civil rights during an earlier era. "That's not an unfair analogy," Waters said in a recent interview. Several recent celebrated cases have focused attention on these issues:Since last September, the 6th U.S. Circuit Court of Appeals, in Cincinnati, has been conducting its own investigation into whether the Justice Department disregarded information suggesting it had misidentified retired Cleveland auto worker John Demjanjuk as Nazi death camp guard "Ivan the Terrible." Based on the identification, Demjanjuk was deported in 1986 to Israel, where he was convicted and sentenced to death. On Dec. 14 in Los Angeles, U.S. District Judge Edward Rafeedie acquitted Mexican physician Humberto Alvarez Machain - whose abduction from Mexico for U.S. trial had been arranged by federal agents - of charges that he had participated in the 1985 torture killing of U.S. drug agent Enrique "Kiki" Camarena. Rafeedie accused federal prosecutors of failing to disclose information from an informant that another doctor, not Alvarez Machain, had committed the crime. Recent convictions of leaders of the El Rukns, Chicago's most notorious street gang, are in jeopardy after allegations - now under judicial consideration - that federal prosecutors suppressed key evidence and engaged in other misconduct that denied the defendants a fair trial. But other cases that have raised questions about federal prosecutorial power, while often well-known in legal circles, have not made headlines. Beginning in the mid-1980s a special unit in the Justice Department used threats of simultaneous prosecutions in multiple jurisdictions - prohibitively expensive to defend against and once specifically discouraged as a prosecutorial tactic in the U.S. Attorney's Manual - to force the distributors of sexually oriented materials out of business without a legal determination that the materials were obscene. Three courts have labeled the tactic as unfair and unconstitutional. In the District of Columbia in 1988, a prosecutor obtained a bribery-conspiracy indictment against a prominent businessman with grand jury tactics that were later criticized by an internal Justice Department review. The review acknowledged that the prosecutor had exercised "poor judgment" in his handling of a grand jury witness. The businessman was quickly acquitted by a judge who said there was no direct evidence against him. But his reputation and business suffered severely from the indictment, and he continues to seek redress in the courts. In Los Angeles two years ago, a U.S. district judge threw out a major payola-racketeering case because, he said, the federal prosecutor did not disclose evidence that tended to exonerate a defendant. In May, an appeals court agreed that the government's conduct was "intolerable," but reinstated the case, saying that recent Supreme Court rulings left it powerless to do otherwise. The prosecution is still pending. In 1991, a federal judge in California dismissed a government drug case because "overzealous government agents and prosecutors" had allowed a defendant to retain an attorney who was actively working with the government against him. While pretending to be honestly representing the accused, the attorney was setting him up for the government. In December 1991, a racketeering case against one of Miami's most notorious criminal suspects was thrown out because a judge determined that prosecutors had plotted to provoke the target into breaking a plea bargain agreement they had made with him. Senior Justice Department officials argue that the few cases in which excesses occur stand out largely because the vast number of cases are handled fairly, and that federal prosecutors use the weapons available to them with great restraint. "By reason of focusing on a number of individual cases, whether they are right or wrong," said Assistant Attorney General Robert S. Mueller III in an interview, "you are going to tar any number of prosecutors out there who have dedicated their lives to what they feel is participating in the criminal justice system in a way that is fair and just. "You are going to paint us . . . as being some form of Hessians that will trample over rules without any restraints in order to put somebody away," said Mueller, who heads the department's Criminal Division. "That bothers me. That disappoints me." "You have to judge us overall by what is the net result of the department's performance," said Deputy Attorney General George Terwilliger III. "Is (it) . . . that we have a lot of kamikaze prosecutors out there, running around, doing all kinds of inappropriate things? Or is (it) . . . that we have a very highly capable, professional corps of prosecutors and investigators out there who produce outstanding results under difficult conditions for a lot less pay than their counterparts in the private sector make?" Reagan-Era Crusade Against Crime Crime fighting as a theme for national crusade was not born with the Reagan administration. But Reagan and his lieutenants came to Washington with a strong belief that America had been weakened by an era of social and judicial liberalism, and that the nation was under siege by what the president in 1982 called "this dark, evil enemy within." "Crime today is an American epidemic," Reagan said during a speech at the Justice Department that year in which he promised to hire hundreds of new prosecutors and agents to attack a "hardened criminal class." Armed with the growing fear of many Americans that their way of life was threatened by lawlessness, and the intellectual energy of conservative think tanks that traced the threat to imbalances in the courtroom, the administration began tilting the scale in favor of the prosecution. One of the leading champions of the crusade was former attorney general Edwin Meese III, who declared war on such things as the exclusionary rule - which allowed judges to suppress illegally seized evidence - and denounced as "infamous" the Miranda warnings meant to protect a suspect's rights against self-incrimination. Meese gave voice to the sentiments of millions of Americans who were disgusted with crime and impatient with laws that appeared to hamper police. "The rule of law has managed to maintain a precarious edge over the forces of chaos ever since the revival of Western Civiliation," Meese said in a 1988 speech. "In a sense we are facing up to another barbarian-type invasion." If Meese challenged the law, his successor as attorney general, Dick Thornburgh, promoted the autonomy of federal prosecutors. During a 1991 CNN interview, Thornburgh explained his belief - reflected in Justice policies - that federal prosecutors should have more leeway than other lawyers. "Law enforcement is basically a conservative business," he said. "You're putting bad guys in jail. You're trying to get every edge you can on those people who are devising increasingly more intricate schemes to rip off the public, hiring the best lawyers, providing the best defenses. "So you're constantly pushing the edge of the envelope out to see if you can get an edge for the prosecution. That's a conservative undertaking. And as a law enforcement official, I think many who subscribe to the old liberal agenda of the '60s when the Warren Court was expanding a defendant's rights objected to the fine tuning that we were proposing in these laws, not to abolish constitutional rights, but to give the law enforcement officer an even break." For those prosecutors accused of taking more than an "even break," the Justice Department has its own self-policing unit, the Office of Professional Responsibility. From 1985 through 1991, according to the department, 22 assistant U.S. attorneys resigned during "pending" internal investigations into allegations of prosecutorial misconduct, ranging from improperly securing arrest warrants to improperly contacting defendants who were represented by lawyers. One other attorney was fired outright. A quiet resignation "allows the attorney to leave with more of his reputation intact than if the record showed he was dismissed," said Michael E. Shaheen Jr., counsel to the professional responsibility unit. ". . . It's an easy resolution for us." But it is difficult to judge the efficacy of the office, or the standards that it uses, because its operations are secret and it rarely provides specific information about complaints it receives or their disposition. And, while the department's U.S. Attorneys Manual sets high standards on paper for the behavior of its prosecutors, it acknowledges that they are not necessarily bound by them. A recent General Accounting Office report - prompted by congressional frustration with the oversight office's secrecy - criticized the Office of Professional Responsibility for its "informal ways and unsystematic approach." Despite the near doubling in the number of prosecutors, the office has consisted of no more than six lawyers at a time since 1979. Erosion of Judicial `Supervisory Powers' Over the last decade, the powers judges once had to question or stop government misconduct in the criminal justice system have been significantly eroded by Supreme Court decisions. Some have categorized as "harmless errors" - not justifying reversal of a conviction - prosecutorial breaches that once were considered serious. In 1991, for example, the court held that using a coerced confession as evidence against a defendant could be considered "harmless error." The present discomfort of some federal judges stems most directly from a decline of their "supervisory power" over the conduct of federal prosecutors and agents. Although rarely used, this diminishing power has been a last-resort remedy that judges can invoke to end prosecutions they considered abusive, whether or not they violated any specific constitutional guarantee. In recent years, the Supreme Court has cut back drastically on the circumstances in which the supervisory power may be applied, arguing that it too often represents an undue intrusion into the affairs of the prosecutorial branch. Most recently, the court last term, in a case called U.S. v. Williams, severely restricted the "supervisory powers" of judges to enforce "fundamental fairness" by throwing out cases tainted by grand jury abuse. Writing for the dissenters in a 5 to 4 decision, Justice John Paul Stevens warned of the dangers of allowing "overzealous or misguided prosecutors" to operate free of any meaningful judicial deterrent. In such cases, the high court has referred aggrieved individuals to the disciplinary machinery in state bar associations or to the Justice Department for relief. However, the Justice Department declared in June 1989 that its prosecutors were not subject to state bar discipline when, in the view of the department, it would allow excessive state interference in federal investigations and prosecutions. While much of the new power of prosecutors stems directly from acts of Congress designed to combat white-collar crime and drug trafficking, Congress has been relatively deferential in dealing with the overall conduct of the department and its disciplinary unit. As a result of Supreme Court, department and congressional actions, U.S. District Judge John L. Kane of Colorado said in an interview, "The system of checks and balances is out of whack," giving rise to what he called a "sorry episode of one egregious act after another" by the government. A "senior status" retired judge who can choose his cases, Kane has taken the symbolic step of refusing to hear any criminal cases. The role of the federal judge in criminal cases has become little more than a "clerical function," and without the ability to deter prosecutorial misconduct, he said in an interview, he cannot in good conscience promise defendants a fair trial. The experience of U.S. District Judge Terry J. Hatter Jr. typifies the conflict that has arisen between some trial judges, who confront government tactics at ground zero and get outraged, and appellate judges, who confront them more in the abstract and have to measure them against Supreme Court precedents. In 1984, Hatter was presented with the indictment of one Darrell P. Simpson on charges of drug trafficking. The FBI became interested in Simpson after receiving a tip from Canadian authorities that he was an international drug smuggler. The agents then used as an informant a woman who was a prostitute, heroin user and a fugitive from Canada. They arranged for her to meet Simpson as if by accident. The two became intimate and, at her urging, Simpson procured heroin from an undercover agent. In the course of her work for the FBI, she continued to engage in prostitution, heroin use and shoplifting and, according to court records, the agency allowed her to keep a $10,000 profit from a heroin sale. Hatter dismissed the indictment saying that the government's action was so outrageous as to be unconstitutional. "I am constantly in the business of sending messages to drug dealers," said the judge. "It is important that I send a message now to the government that this kind of activity will not be tolerated." Two years later, the 9th U.S. Circuit Court of Appeals reversed Hatter and sent the case back to him, saying the government's behavior did not violate the Constitution. In 1988, Hatter dimissed the charges a second time, acting, he said, under his "supervisory powers" as a federal judge. In March 1991, a panel of the 9th Circuit reversed him again, this time with a lecture delivered by Judge Alex Kozinski. Hatter, Kozinski wrote, was "rightfully disturbed by the less-than-exemplary conduct of the government." But "sleazy tactics alone" do not empower a judge to throw out a case. "In the exercise of the supervisory power," Kozinski wrote, "judges must be careful to supervise their own affairs and not those of the other branches." Unilateral Exemption From Ethics Rules One of the greatest continuing controveries over the control of federal prosecutorial behavior stems from Thornburgh's 1989 move as attorney general to limit significantly the authority over government lawyers of state bar organizations, the bodies that license lawyers. Thornburgh was responding to a 1988 decision by the 2nd U.S. Circuit Court of Appeals reaffirming that bar disciplinary rules restrict the behavior of federal prosecutors as well as all other lawyers. Unilaterally, Thornburgh declared in a memorandum that Justice Department lawyers are exempt from state bar associations' codes of professional conduct, if those ethical provisions interfere with investigative and prosecutorial activities authorized by law. The issue that sparked the memorandum was whether federal prosecutors could directly contact defendants who had lawyers. District of Columbia Superior Court Judge Gladys Kessler encountered the issue in a 1988 case. She determined that a federal prosecutor in Washington had violated a bar disciplinary rule by having conversations with a murder defendant without his lawyer being present. Kessler referred the matter to bar authorities in the District, but because the prosecutor originally was licensed as a lawyer in New Mexico, the allegation was transferred to the bar disciplinary board there. When it got there, the Justice Department, invoking Thornburgh's memorandum, declared that there was nothing state authorities could do about it and went to federal court to have the matter removed from the hands of state authorities. In New Mexico, U.S. District Judge Juan G. Burciaga was astonished when he heard the government claim of immunity from state disciplinary action for its lawyers. "The Government," he wrote in an August opinion rejecting the Justice Department's position, "threatens the integrity of our tripartite structure by arguing its lawyers, in the course of enforcing the laws regulating public conduct, may disregard the laws regulating their own conduct. The irony of such an assertion not only fuels public discontent with our system of justice, but the insolence with which the Government promotes this as official policy irresponsibly compromises the very trust which empowers it to act. It falls to this Court to disabuse the Government of its novel self-conceived notion that Government lawyers, unlike any other lawyer, may act unethically." Burciaga said that Thornburgh, before issuing his memorandum, "would have done well to have taken a few steps from his office to contemplate the inscription on the (Justice Department) . . . wall. . . . `The United States wins its case whenever justice is done one of its citizens in the courts.' " On Dec. 23, the Justice Department asked a federal judge in the District to enjoin Virginia L. Ferrara, the chief disciplinary counsel for the New Mexico Supreme Court, from "taking any adverse action against an attorney employed by the United States Department of Justice for the performance of federal duties or responsibilities consistent with federal law." "It's makes me sound like some kind of drug runner," said Ferrara, who estimated that the New Mexico bar's small disciplinary office has so far spent $18,000 defending itself from the Justice Department's legal attacks. Staff researchers Barbara Saffir and Margot Williams contributed to this report.