FROM BEGINNING OF CASES TO END, RULE CHANGES LED TO MISCONDUCT

New laws and court rulings over the past two decades have made it easier
for federal law enforcement officials to arrest, convict and imprison the
guilty.

Critics say a lack of safeguards has also increased the chance that
innocent people will be snared or have their rights violated.

Here is a summary of some of the most significant changes.

Investigations

Sting operations. In 1974, Congress authorized sting operations, which
allow federal agents to set up an illegal enterprise with the goal of
luring in real criminals and then arresting them. A lack of safeguards has
led to abuses, such as the 1984 case in which federal agents talked
automaker John DeLorean into a drug deal that might save his business. A
jury acquitted him, saying federal agents entrapped an innocent man.

Thornburgh Rule. Former Pennsylvania Gov. Dick Thornburgh served as U.S.
Attorney General from 1988 to 1991. In 1989, he issued a memo saying that
ethics rules that bar associations established in the areas where federal
prosecutors worked did not bind the prosecutors. Attorney General Janet
Reno made the memo official policy in 1994. Opponents said it allowed
federal prosecutors to engage in conduct -- such as contacting a criminal
suspect without his lawyer being present -- that might cause private
attorneys to face disbarment. But legislation attached to this year’s
federal budget bill, which U.S. Reps. Joseph McDade, R-Scranton, and John
Murtha, D-Johnstown, sponsored, requires the department to end the
practice, though the legislation delays implementation for six months. The
Justice Department already has begun efforts to kill it.

Forfeiture. Like money laundering, federal forfeiture statutes passed in
1990 were aimed at getting at the assets of big-time criminals. Forfeiture
allows federal prosecutors to file civil suits to seize property if it can
be linked to a criminal activity -- even if the owner of the property is
never convicted of a crime. Because the standard of proof is lower in a
civil suit, the statute was supposed to give federal officers a powerful
tool against illegal drug trafficking, but in a series published in 1991,
The Pittsburgh Press found that federal agents have broadly abused
forfeiture laws and that the homes, cars and cash of ordinary people are
most often the targets of forfeiture. An amendment to the law that sought
to safeguard the innocent was passed last year, but the measure was watered
down under Justice Department pressure. So, despite intense lobbying by
opponents of these one-sided actions, little has changed.

Exclusionary rule. From 1914 to 1984, the Supreme Court had a simple rule
for police who violated the Fourth Amendment of the U.S. Constitution in
any search or seizure: Evidence obtained would be excluded from trial. But
Congress, tired of criminals being released on "technicalities," approved a
law in 1984 that provided for an exception to the exclusionary rule:
Evidence would be allowed into a trial if officers believed in good faith
that they had acted properly in a search or seizure. That has caused
defense lawyers and constitutional scholars to lament that there are more
good-faith exceptions than there are rules of exclusion.

Search warrants. Prior to 1987, police needed clear and convincing evidence
that a crime had been committed before a judge would issue a search
warrant. Under new laws and court rulings, officers can get a warrant based
on the word of an informant who doesn’t even have to be named. In 1984, the
Supreme Court allowed evidence obtained through a search warrant not
supported by probable cause to be used in court, so long as it was "issued
by a detached and neutral magistrate." Congress then approved new laws
adding more bite to the ruling. In his dissent, Justice John Paul Stevens
wrote that the ruling meant the court’s destruction of the Fourth
Amendment’s guarantee against unreasonable searches and seizures was now
complete.

Anti-terrorism. The Anti-Terrorism and Effective Death Penalty Act of 1996
allows the death penalty for certain federal crimes and sharply curtails a
defendant’s rights in some federal proceedings and appeals. For example,
the law allows the government, unilaterally, to designate "terrorist"
organizations and makes it a felony to support even the lawful and
humanitarian activities of such organizations. It also permits the
president, using undisclosed and even illegally obtained evidence, to
designate as terrorists aliens residing in the United States and to deport
them, even if they have committed no crime. The law also explicitly
prohibits the FBI from investigating people because of their views,
affiliations or other First Amendment activity.

Wiretaps. The Anti-Terrorism and Effective Death Penalty Act of 1996 also
expands the use of roving wiretaps for investigations and allows federal
agents to tap any telephone calls of suspects for as long as 48 hours
without a court order. This covers cellular telephones and situations where
suspected criminal organizations use call-forwarding to hinder the
government’s ability to find them.

Grand juries. A federal grand jury, which usually is composed of 23 people,
hears accusations that a federal prosecutor presents to determine if enough
evidence exists to indict a suspect for a crime. Since the defense is not
allowed rebuttal, this proceeding gives prosecutors tremendous power. The
late U.S. Supreme Court Justice Learned Hand lamented that "a good
prosecutor could indict a ham sandwich." While judges overseeing grand
juries may hear motions on the conduct of prosecutors in the secret
proceeding, such motions are seldom granted, and a recent Supreme Court
ruling adds to a prosecutor’s power: It said that federal courts do not
"possess broad supervisory powers over grand jury proceedings."

Trials

Perjury. In 1935, the Supreme Court ruled in Mooney vs. Holohan that
prosecutors may not admit testimony they know to be false. That ruling has
been refined and expanded several times, but increasing reliance on the
so-called "harmless error" rule of modern law has further diluted it. Under
this doctrine, unless a defense lawyer can prove to a judge that perjured
testimony would have changed the verdict -- even if that perjured testimony
was known to prosecutors -- a criminal defendant gets no relief.

Brady Rule. A 1963 ruling set the standard for what prosecutors must do to
help a defendant. Called "discovery," it requires prosecutors to turn over
to defendants any evidence that might help prove them innocent or show the
biases and criminal records of witnesses against them. The Supreme Court
also has ruled that if a prosecutor improperly withholds discovery
material, a conviction should be reversed only if the verdict would have
been different had that material been known at the trial. To ensure against
discovery violations, some federal prosecutors, as recently as 15 years
ago, opened all of their files on a case to the defendant’s attorney. Over
the past decade, prosecutors have intentionally withheld discovery evidence
in hundreds of cases, but only in extreme cases have verdicts been overturned.

Sentencing

New rules. In 1987, Congress passed legislation that effectively switched
the authority for sentencing a criminal defendant from a judge to a
prosecutor. The law establishes sentencing guidelines that must be followed
when a defendant is found guilty, and those guidelines are based on the
severity of the crime. For example, a defendant found in possession of a
few ounces of drugs would get a more lenient sentence than a defendant who
possessed a few pounds. Congress believed the guidelines would ensure
fairness and stop defense attorneys from shopping for lenient judges.
However, the guidelines have fostered a new form of misconduct called
sentencing entrapment, where prosecutors seek to boost the charges against
a defendant up front to ensure he will face a maximum sentence. In a drug
conspiracy, for example, a person may be found guilty for simply discussing
a drug deal. So informants trying to snare a suspect make sure the
quantities discussed are huge, to ensure maximum sentences. This gives
prosecutors more clout in negotiating a plea bargain.

Early release. In 1987, the U.S. Sentencing Commission dramatically cut the
amount of time that was permitted to be cut from a prisoner’s sentence for
good behavior. Before this change, a prisoner who behaved in prison could
reduce his sentence by at least one-third and sometimes by as much as
one-half. Under the new rules, a convict may earn only 54 days of "good
time" per year. When added to stiff mandatory sentencing laws that Congress
adopted, the cut in good behavior time has swelled the population of
federal prisons and produced another unintended result: a surge in federal
prisoners willing to lie against defendants in court. The reason? A witness
who helps win a conviction usually gets a sentence reduction at the request
of the prosecutor, one of the few avenues left for prisoners seeking to cut
their prison time.

Appeals

Appeal limits. The Antiterrorism and Effective Death Penalty Act of 1996
makes it much more difficult for a federal prisoner to file an appeal once
a year has passed after his conviction. This has forced prisoners to rush
their appeals and sometimes miss presenting the most compelling evidence
for a new trial. One example: The Post-Gazette found that when the
government withholds evidence that might help a defendant, it is often
uncovered long after a conviction through a Freedom of Information Act
request to federal law enforcement agencies. These agencies sometimes take
years to respond to a FOIA request. The new appeal limits make it much more
difficult for this new evidence to get before an appeals court.

Oversight

Office of Professional Responsibility. This office within the Justice
Department is supposed to oversee the conduct of federal agents and
prosecutors, but little oversight is happening. The office opened official
investigations into only 9 percent of the 4,000 complaints filed against
federal law enforcement officials during the past 20 years. The office
found that only 4 percent of those complaints had merit. Since the office
only discloses specifics of its investigations on rare occasions, it is not
clear what punishment might have been meted out.

Congress. Last summer, the U.S. House approved the Citizens Protection Act,
345-82, a major legislative victory for Pennsylvania Reps. John Murtha,
D-Johnstown, and Joseph McDade, R-Scranton. But only one provision survived
as part of the federal appropriations bill that Congress approved last
month: the repeal of the Justice Department’s Thornburgh Rule, which had
exempted federal prosecutors from abiding by the ethics rules in the states
in which they operate.

Killed were provisions that would have established an independent oversight
board to monitor federal prosecutors, and sanctions for prosecutors who
committed misconduct. A section that would have included independent
counsels such as Kenneth Starr under the bill’s provisions also was killed.

Last year, a bill that House Judiciary Chairman Henry Hyde, R-Illinois,
introduced was signed into law, allowing victims wrongfully prosecuted by
the federal government to recover attorney fees and other defense costs,
but under Justice Department pressure, it was watered down to require that
any such action be filed within 30 days of the completion of the federal
action, and it provides for no sanctions against those who commit abuses.

Checked-by: Richard Lake