Pubdate: Thu, 13 Oct 2005
Source: Washington Examiner (DC)
Copyright: 2005 Washington Examiner
Contact:  http://www.dcexaminer.com/
Details: http://www.mapinc.org/media/3788

OVERZEALOUS PROSECUTORS COULD BE AFTER YOU NEXT

A little advice for anybody who cheered when former House Majority
Leader Tom "The Hammer" DeLay was indicted on conspiracy and money
laundering charges: Watch your back. You could be the next target of
some ambitious prosecutor.

DeLay has accused Texas U.S. Attorney Ronnie Earle of prosecutorial
misconduct for going to a third grand jury when the first two in
Travis County refused to indict him. Unfortunately for DeLay and other
less well-known defendants, legal experts say, the federal grand jury
system allows prosecutors to shop around for jurors willing to find
probable cause that a crime has been committed. Just because one grand
jury can't find a criminal offense doesn't mean the next one won't.

A 1998 article published by the National Association of Criminal
Defense Lawyers pointed out that "whenever prosecutorial effort
becomes more focused on 'getting' a particular person than pursuing a
particular, identifiable allegation, as is increasingly the case, it
alters the very architecture and mission of the prosecutor's office ..
[and] invites excess."

The same article reminded readers that the grand jury process "has
departed so far from its original purpose as a restraining influence
on the British Crown that it has been taken to new limits as a tool to
sculpt indictments, with little critical supervision from any source."

The sculpting is done with a sloppy mix of raw power and the thousands
upon thousands of federal laws, rules and regulations - so many that
even the most conscientious citizen has no chance of keeping up with
them all.

"Prosecutors use vague and broad federal criminal statutes and
regulations to harass civil society - people who could not imagine
that they were committing a federal crime when they went about what
they thought was their normal business," Boston defense attorney
Harvey Silverglate told The Examiner, using client Walter Lachman and
his business partner as an example. The duo was found guilty of
violating federal regulations that prohibit the export of certain
equipment with dual commercial and military applications; in this
case, they shipped a control panel for a hot isostatic press - which
could also be used to build ballistic missiles - to India without a
license.

Massachusetts District Judge Douglas Woodlock threw out the criminal
convictions because he said the definitions in the law "were
sufficiently variable that intelligent persons confronting the
language could not be certain of its meaning." However, the verdict
was upheld by the 1st Circuit Court of Appeals, which admitted
evaluating the contested evidence "in the light most favorable to the
prosecution."

Lachman's sentencing hearing will continue on Monday.

But if the courts deliberately favor prosecutors, what happened to the
constitutional presumption of innocence?

Closer to home, federal prosecutors charged McLean pain doctor William
Hurwitz with drug trafficking even though there was no evidence he
profited when a small number of his patients illegally sold the
medication he had prescribed, ignoring what used to be a critical
consideration in criminal cases - motive. In April, Hurwitz was
sentenced to 25 years in prison. Last month, the Drug Policy Alliance
filed an amicus brief supporting his appeal, signed by fellow pain
experts from around the country.

Dr. Frank Fisher went through a similar ordeal when he was charged
with multiple counts of drug distribution, fraud and murder in California.

After spending five months in prison and paying hundreds of thousands
of dollars in legal fees, every one of the unfounded charges against
the pain doctor were eventually dismissed. But, Fisher told a
congressional panel, he was ruined personally and professionally.

"I've been forced to move back in with my parents," the 50-year-old,
Harvard-educated physician lamented while waiting a hearing on the
status of his medical license.

Former Virginia Attorney General Mary Sue Terry said that the nation's
criminal justice system "has turned from seeking truth to seeking
convictions, and our post-conviction efforts are focused on denying
any further review." But this is definitely not the way our system is
supposed to work.