EDITORIAL: PROSECUTION OR PERSECUTION?

"The philosophy of the past 10 years [is] that whatever works is all right."

That statement by a former federal prosecutor in Florida pithily sums up
"Win at All Costs," Block News Alliance reporter Bill Moushey's 10-part
series on abuse and lawbreaking by prosecutors and federal agents. The
question is whether the U.S. Department of Justice has gotten the message.

If it does not move on its own to rein in prosecutors who cross the line
between prosecution and persecution, it can expect Congress to step in.

Mr. Moushey and colleague Bob Martinson reported that federal agents and
prosecutors broke the law in hundreds of cases. They have offered a wealth
of detail amassed in a two-year investigation to suggest that, on the
theory that "if it works it's all right," federal prosecutors and law
enforcement agents have:

- - Knowingly or negligently allowed the use of false testimony to secure
convictions, spawning a jailhouse industry in which criminals obtain
leniency for themselves - "jumping on the bus" to freedom - with
information they have bought about cases in which they had no role.

- - Used expensive sting operations to ensnare unwary citizens - and not just
career criminals - in concocted crimes, sometimes manipulating the severity
of the "crime" to assure that draconian sentencing rules would apply.

- - Frequently withheld from defense attorneys information that might have
led to an acquittal.

- - Allowed federal agents to cultivate criminals to the extent that some
agents acquiesced in shocking crimes by informants, and others took on the
habits of the criminal class they were supposedly using to the government's
advantage.

- - Resisted acknowledging wrongdoing even when violations of individual
rights were egregious.

Not all of the blame lies with the Justice Department and its oblivious
overseers. Fighting the "war on drugs" not wisely but too well, Congress
has promulgated harsh mandatory minimum sentences for even small-time drug
offenders, crowding the prisons and increasing the pressure on defendants
facing years in prison to cooperate by implicating others, whether or not
their information is true. Congress also has given a green light to sting
operations.

The U.S. Supreme Court, meanwhile, has marched in lockstep with Congress in
"cracking down" on crime by eviscerating protections for defendants that
also served to keep law enforcement honest. Perhaps most egregious was the
high court's decision that the withholding by prosecutors of potentially
exculpatory material could be a "harmless error" rather than a factor that
would doom a prosecution.

But if Congress and the courts have contributed to a climate in which
prosecutors try to "win at any cost," it is the Justice Department and its
understaffed Office of Professional Responsibility that deserve the bulk of
the blame for the abuses documented by the series.

And while Congress shows signs of recognizing that prosecution too often
becomes persecution, the Justice Department shows precious little awareness
that many of its operatives are running roughshod over the rights of
citizens. We await a significant and sustained response to the series by
Attorney General Janet Reno and her lieutenants, but early indications are
that the department doesn't recognize the magnitude of the problem.

Responding to the series, Mary Jo White, the U.S. attorney for the Southern
District of New York, pointed out that thousands of federal cases have been
pursued without any charge of misconduct. No doubt, but Mr. Moushey's
investigation of 1,500 allegations of abuse suggests that, while wrongdoing
occurs in a minority of cases, it is a sizable minority and one that seems
to be growing.

Reasonable people can disagree about the precise remedies for these abuses.
At the minimum, victims of prosecutorial misconduct should be able to
collect significant damages. Complaints to OPR should not be entombed in
bureaucratic silence; the agency should provide specific accounts of the
disposition of these complaints and whether, and how, the wrongdoers were
punished.

And while an independent oversight board for prosecutors might be unwieldy
or subject to political pressure, Justice Department officials who oppose
the creation of such a body have the burden of demonstrating that they can
be trusted to prevent and punish lapses on their own.

The reaction across the nation to the Block News Alliance series
strengthens our conviction that prosecutors who bend and even break the law
are not an isolated occurrence. If the Justice Department doesn't act on
its own to curb abuses, increase accountability and own up to its
injustices, Congress will - and should - step in.

Checked-by: Richard Lake