Protecting the Innocent

...Surely, one reason prosecutors oppose such requests is that they often feel they have some advantage in the venue in which they have chosen to file charges...

...So they haul their cuffed charge back out of court for take two...

...Giuliani accused innocent brokers of crimes, failed to convict, and went on to become mayor and who knows what else...

...He was on his way to becoming the mayor of New York, and a highly successful one at that...

...The potential accused is not allowed to have his lawyer at his side, even though the game is to persuade the grand jury either that the accused did what the prosecutor says he did, or, failing that, to trip him up on some detail so that a perjury indictment will be available as a fall-back position...

...Cling to your rights, the memo warns, and we are more likely to bring charges that will bankrupt your company...

...Now, I know that a good judge can do much to ensure that a nonbiased jury is selected from the available pool...

...The then-young and unheralded federal prosecutor stormed into the offices of the Kidder Peabody brokerage firm during business hours in February 1987, cuffed two brokers, and, in Reeves's words, "walk[ed] them down Wall Street in an explosion of camera lights...

...The accused is handcuffed and paraded before the press, who have been tipped off, as he is led into court to be charged with whatever crime the grand jury decides has been committed...

...But when the mere threat of prosecution, combined with public castigation, can cause as much damage as conviction, innocent-until-proven-guilty becomes rather meaningless...

...That staged event offends the sense of fairness that is essential to long-term popular support for our system of justice...

...So the second clause of my Preservation of the Assumption of Innocence Act would make the right to a speedy trial absolute, eliminating any loopholes in the Speedy Trial Act that might deny the accused an absolute right to a speedy trial should he request it...

...After all, Wall Street investment houses, responding to the conflict of interest intrinsic in their roles as both bankers and brokers, have allowed their brokers to push overvalued shares on customers so as to please their investment banking clients...

...Let's hope that Specter's review Irwin M. Stelzer is a contributing editor to THE WEEKLY STANDARD, director of economic policy studies at the Hudson Institute, and a columnist for the Sunday Times (London...

...Arlen Specter, chairman of the Senate Judiciary Committee, plans to hold hearings in September to focus on the Justice Department's so-called Thompson Memorandum (named for former deputy attorney general Larry Thompson), which, among other things, directs prosecutors to consider whether a corporation is willing to waive attorney-client privilege when deciding whether to bring criminal charges...

...Fat lot of good it does him...

...But we are not dealing here with some sport, in which home-field advantage averages out over a long season of play...

...Then there is the trial...

...Still, those would-be hanging judges are few and far between...

...There you have it: what my friend Charles Murray would call a "thought experiment...

...The government, said the judge, who is generally regarded as favorable to prosecutors, "let its zeal get in the way of its judgment...

...Eliot Spitzer, New York's attorney general, uses the media to level charges against individuals and firms, threatens them with criminal charges that will surely bankrupt them unless they waive their constitutional right to consult with counsel in private, bullies companies into firing their accused executives, and then loses cases he is finally forced to try...

...Kaplan ruled in late June that prosecutors violated the constitutional rights of the defendants by pressuring their firm to cut off payments of their legal fees, a common tactic of the feds and Spitzer...

...But what of the prosecutors...

...Well, almost everyone...

...Houston, of course...

...or agree to plead guilty to some lesser charge, ending the uncertainty hanging over the family during the years of the trial...

...Never mind that Giuliani didn't have enough evidence to charge these men with a crime...

...Prosecutors, with virtually unlimited taxpayer funding on which to call, know that...

...Recently, prosecutors brought three British investment bankers to the United States to face a variety of charges connected with the Enron collapse...

...A speedy trial just might reduce the imbalance in available resources as the judicial process winds its way to a conclusion...

...BY IRWIN M. STELZER "INNOCENT UNTIL PROVEN I guilty" is one of the few prop--I-ositions that everyone supports, irrespective of his place on the political spectrum...

...Another perversity of the Thompson Memorandum is that it threatens with prosecution companies that advance funds to their employees to hire attorneys...

...Some liberals don't need a trial to decide that Scooter Libby should be given an orange jump suit, and some conservatives think it absurd that anyone accused of conspiring to commit a terrorist act should waste our money and time by being given a day in court...

...Then there is the question of just where the accused—remember, still presumed innocent—is to be afforded the fair trial that is his by right...

...Good trade, and one that should open the door to lawyers and other social scientists to consider the advantages and, if there are any, disadvantages lurking in my proposed Preservation of the Assumption of Innocence Act...

...We are dealing with a one-game, loser-pays-all contest...

...Finally, there is the question of the fairness of the consequences...

...Perhaps the time is ripe for a statute limiting zeal and emphasizing judgment...

...After all, by the time the grand jury has returned an indictment, and the photographers have had their day on the courthouse steps, the prosecutor will have had plenty of time to gather evidence...

...Or that he timed the arrests so that it was too late in the day to arrange bail, forcing at least one of them to spend the night in jail...

...If they lose, the government must restore the acquitted to the financial circumstances in which he found himself at the start of the legal process—perhaps with some portion of the cost of such reimbursement coming, if not directly from the pockets of the individual prosecutors, then at least from the operating budget of their offices...

...So clause number one of my Preservation of the Assumption of Innocence Act would outlaw the perp walk...

...If he is convicted, he pays a more terrible price: Off to jail he goes...

...Start with the earliest step in the procedure—the grand jury that the prosecutor must persuade to indict the person he has in his sights...

...doesn't confine itself to the obvious problems created by the Thompson memo, and takes a look at the entire set of incentives faced by prosecutors when they're deciding whom to go after...

...That's why I have always favored jail for price fixers, laws to stamp out the sort of corporate behavior that Sarbanes-Oxley and other good-corporate-governance measures aim to prevent...

...Little wonder that the saying in the business is that any prosecutor can persuade a grand jury to indict a ham sandwich if he sets his mind to it...

...One thing is certain: The backlash against prosecutorial overreach has enlisted not only Arlen Specter, but also District Judge Lewis Kaplan, who presides over a tax-fraud case being brought against 16 former partners of the accounting firm KPMG...

...Then there is the famous "perp walk," defined by writer Richard Reeves as "a little conspiracy between police and reporters to produce photos for morning papers and film for evening news...

...Fortunately, lawmakers have begun to notice...

...The great legal scholar Kingman Brewster once told a group of economists that if we would consider the law a social science, he would concede that economics is a profession...

...If they lose, they pay no price...

...Still, what would be the harm in allow-ing—as clause three in my new law— any defendant who requests a change of venue to be granted his wish...

...Remember, this embarrassed wretch is innocent until proven guilty...

...Long pretrial delays and long trials are expensive, very expensive...

...Even if the defendant is acquitted, he will have paid a horrific price in time, treasure, and reputation...

...So the final clause of my new law is one designed to get the prosecutors' incentives right...

...Rudy Giuliani, the deservedly now-sainted "America's Mayor," made his reputation using this technique...

...They are obliged to deploy all of the weapons to which the law and the rules give them access, and therefore can't be criticized for the current unlevel playing field...

...In some cases, the accused—not having been proved guilty—know that they have a choice: fight a long battle, the outcome of which is uncertain, and even if acquitted leave themselves and their families virtually bankrupt and forever paying off debts to supporters...

...It might even be that his success as an administrator of a city many thought ungovernable was due to his, er, impatience with procedures, some of which merit a tad more patience than Giuliani was prepared to accord them...

...Indeed, there are reported instances of prosecutors being upset when they have paraded the accused into court before the paparazzi had an opportunity to uncap their lenses...

...Add to the embarrassment he and his family suffer the fact that the pool of potential jurors gets its introduction to the person during this fabricated perp walk...

...Whether or not the jury pool in that city is polluted by the tens of thousands of residents who have lost their jobs, the friends of those whose careers were disrupted, the thousands who chose to invest their pension funds in Enron stock rather than diversify, and the more thousands dependent on those pensioners, I leave to my lawyer friends...

...But it surely is reasonable to consider whether these laudable ends justify all of the means being used to attain them...

...This is not to say that some of the practices that so rile Spitzer are other than reprehensible...

...The complexity of the evidence and the lack of overwhelming incentives for the prosecution to move smartly along suggest that it would be useful to take a hard look at the effectiveness of the Speedy Trial Act of 1974, which states, in part, that "Trial must commence within 70 days from the date . . . [the] indictment was filed, or from the date the defendant appears before an officer of the court...

...As Professor William Hogan of the Kennedy School pointed out in another context, the first step in good public policy is getting the incentives right...

...Understand, too, that it is important to catch the bad guys...

...Where did they decide to try the case...

...In any event, "Innocent until proven guilty" hardly provided the mistreated brokers the sort of protection to which the innocent are entitled...

...He is now headed towards the governor's mansion in Albany and, in the view of his acolytes, from there to the White House...

...Unfortunately, the massive support for "innocent until proven guilty" no longer guarantees anyone accused of what we call a white-collar crime of a fair shake in terms of procedure, and an ability to resume a normal life if acquitted...

...Understand: Most prosecutors are devoted public servants, working at a fraction of the compensation earned by defense attorneys in high-profile white-collar cases...