An old example of prosecutorial misconduct; and a new one

Old Case:

There have been scenes in movies about the 1957 meeting of Mafia bosses in Apalachin, New York where 100 of the big bosses of the Mafia met at the home of local Mafia chieftain Joe Barbara. I can just mention the scene and my wife will fill in all the details from movies she has watched over the years. It was pretty funny I guess.

The local police became curious when they noticed numbers of expensive cars with out-of-town license plates going to the Barbara home. Without even a shred of “probable cause” the local cops arrested everyone in sight that they could catch. A local prosecutor named Milton Wessel charged them with “conspiracy” since there was no crime committed that anyone could think of. The question of what constituted this so-called “conspiracy” did not seem to bother Wessel a bit and he got a conviction against 20 men and sentences up to 5 years in prison for being at someone’s house with an out of state tag on a nice car.

We don’t know what Wessel was thinking when the Appeals Court for the 2nd Circuit overturned the convictions pointing out that the government had not produced a shred of evidence that any crime had been committed. Was Mr. Wessel’s career harmed by this prosecutorial misconduct? Why no; Mr. Wessel subsequently became a professor of law at Georgetown University.

This 1957 episode probably sticks everyone who hears about it as funny as all get out. I know I smile every time I think of it. But when I reflect on it I realize that the legal system in the USA had already gone to pot by that time. If Americans had really honored the constitution and the rule of law then Prosecutor Wessel would have been tarred and feathered for such a travesty of justice even if the targets were Mafia bosses.

New case:

And then there is a recent case of prosecutorial misconduct from Miami, Florida. The supreme court of the US decided a short time ago not to hear a case involving prosecutorial misconduct against a Miami doctor which means that the doctor can not get justice against the wildly misbehaving prosecutor. Nothing new here; prosecutors are practically immune from prosecution in this country.

Reason Magazine wrote:

A case that touches on two important criminal justice issues – prosecutorial misconduct and the federal government’s zealous war on pain medication will not be heading to the Supreme Court, even after nearly 70 federal judges and prosecutors threw their support behind it. Ali Shaygan, a Miami doctor, had been acquitted by a jury of illegally prescribing pain-killers after one of his patients died. He had faced 141 separate charges. Then he fought back.

The “war on drugs” has been at the heart of the destruction of the rule of law in the US for decades. Here is just one more example of a prosecutor who wanted a conviction so bad that he tosses hundreds of years of due process out the window and just plain cheats. The real problem is not just this one scum bucket prosecutor; it is that all of them are willing to “bend the rules” to get the “bad guy”. It is rare that they get caught since most of the poor can not get good legal representation; and when they do get caught nothing happens.

In a Reuters article on this case we see the real crime was committed by the prosecution team. “The U.S. Supreme Court on Tuesday refused to consider whether criminal defendants who are acquitted can recover fees from the Justice Department for conducting prosecutions in bad faith.” A prosecutor breaks the law and tries to rail-road a man into prison and the Supreme Court can not be bothered to even look and the issue!

Via Reuters:

A Miami federal judge later awarded the doctor $602,000 under a federal law called the Hyde Amendment, which allows judges to sanction prosecutors for taking positions that are “vexatious, frivolous or in bad faith.”

The judge found that prosecutors acted in bad faith by pursuing new charges and secretly recording Shaygan’s defense team. The steps were taken in retribution after Shaygan’s attorney tried to keep statements the doctor made to investigators out of evidence, the judge found.

The judge called the prosecution’s tactics “profoundly disturbing,” adding that they raised “troubling issues about the integrity of those who wield enormous power over the people they prosecute.”

But the 11th U.S. Circuit Court of Appeals in Atlanta overturned the award, ruling that prosecutors have broad discretion under the doctrines of sovereign immunity and separation of powers.

Regardless of prosecutors’ subjective ill will, they had an objectively reasonable basis for their acts, the appeals court found.

It is time to call off the drug war. Well past time. It is also time to prosecute the prosecutors when they break the law.



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