Policing the Prosecutor

The past year saw a running debate over the methods of a particular federal prosecutor: independent counsel Kenneth Starr. The president's defenders charged him with violating Department of Justice guidelines. Judge Starr vigorously, and usually persuasively, argued that he and his staff knew and followed the department's rules.

That debate, however, only hinted at a much larger question involving the Justice Department and its procedures. Are federal prosecutors in general properly conducting investigations? Disturbing evidence indicates that in some cases they are not.

The evidence is contained in a massive, 10-part series, "Win at All Costs," published last November by the Pittsburgh Post-Gazette (available on the Internet at www.post-gazette.com). Staff writer Bill Moushey found a pattern of prosecutorial misconduct that raises questions about how well Justice polices itself.

Of course it's not the Justice Department's policy or intent to violate ethical, legal, and constitutional norms; the vast majority of federal prosecutors and law-enforcement agents would be aghast at the thought. Yet a minority do violate those norms, and, if Mr. Moushey is correct, their numbers are growing.

The series documented case after case of federal prosecutors:

*Entrapping ordinary citizens in sting operations.

*Withholding evidence from defense lawyers that could lead to acquittal.

*Knowingly allowing perjury by government witnesses.

Yet Moushey found that the Justice Department almost never takes action against prosecutors who use such methods, even when the misconduct can be documented.

Consider the case of Loren Pogue, who is eight years into a 22-year sentence on federal drug-conspiracy and money-laundering charges. He never bought, used, held, or sold drugs. The Drug Enforcement Agency gave a disgraced, debt-ridden former policeman $250,000 to set up a sting luring Latin American drug dealers. Instead, the ex-cop set up Mr. Pogue, who lived in Costa Rica and sold real estate. Two undercover agents met with Pogue and offered to buy land that they would use to smuggle drugs. Because he didn't leave when drugs were mentioned, Pogue was arrested.

At Pogue's trial, the former policeman told two lies: that a Colombian drug dealer had agreed to buy Pogue's land; and that Pogue knew from the start there was a drug connection to the deal. DEA and court documents obtained after Pogue's conviction confirm the statements were false and the government knew it. Yet prosecutors stand by the ex-cop's testimony, and Pogue remains in prison.

Another example: Federal prosecutors accused William Moore of using a lobbyist to bribe the US Postal Service to buy a machine his company made. The government produced 50,000 pages of evidence and 84 witnesses at his trial. The prosecutor coerced a grand-jury witness into implying Moore knew about the bribery, tearing up a plea-bargain arrangement in the witness's face. But the judge threw out the case before the defense even spoke, noting that prosecutors never linked Moore to the crime. Justice's Office of Professional Responsibility (OPR) exonerated the prosecutor.

These are just two out of hundreds of misconduct cases the Post-Gazette found.

How does this happen?

In the war on crime and drugs, Congress has eliminated many of the legal protections suspects and defendants used to enjoy. Lawmakers have made it easier to admit evidence seized during illegal searches. They've limited appeals and enacted harsh mandatory sentences even for small-fry offenders. Paying informants and reducing their prison terms can create plenty of incentive to lie. The courts, meanwhile, have largely abandoned their role as monitors of law-enforcement behavior.

Congress has started to respond to stories of prosecutorial abuse. One new law allows victims of bad-faith federal prosecutions to sue for the costs of their defense. Another requires federal prosecutors to abide by the ethics guidelines of state bar associations.

The Justice Department opposed both measures and got them watered down.

Still, such laws help. But more is needed:

The attorney general must take steps to ensure that the OPR does its job of disciplining unethical prosecutors. Congress should hold hearings to determine the scope of the problem and how to correct it.

Such cases of misconduct may be on the fringes, but they still happen all too often. Even a small number of these cases, undermining citizens' trust, would be too many.

Congress and Justice must wake up to their duty in this area.