Private Prosecutions
Tucker, William
briefed on modern conditions and established modern practices before entering the debate. A very strong case can be made for the proposition that this is now our general condition—that there is no...
...18 THE AMERICAN SPECTATOR MAY 1986...
...It's a little like being a lineman in football...
...Then someone will call in and say no, no—everyone has it all wrong, the system is working just fine...
...The federal judiciary is honeycombed with judges who blatantly sympathize with criminals—and it only takes one of them to overturn the decision reached by a state's entire judicial apparatus...
...I think that's how they teach...
...Meese's Justice Department wants to persuade the Court to hold race-conscious affirmative action in violation of the Constitution, for example, government lawyers had better not rely on the records of the original debates on the Fourteenth Amendment—which offer a great deal of embarrassing evidence to the contrary about "original intent...
...It is certainly important to criticize and struggle against the effects of that perspective in constitutional law...
...They still survive in many rural areas—notably in North Carolina and Arkansas...
...This is where the real money lies...
...Is there any way the situation could be redressed...
...With Valentine sitting at the prosecutor's table assisting the district attorney, the man was convicted of first-degree murder and sentenced to life in prison...
...Only one state, Massachusetts, specifically outlaws them...
...The prosecution has too much power already, they argue, never noting that much more money andresources are spent in defending criminals than in prosecuting them...
...They can't pay much in attorney's fees...
...17 Without doubt, the law profession has become "defense-oriented...
...William Tucker PRIVATE PROSECUTIONS Restoring the balance to criminal justice...
...I was a prosecutor in Los Angeles for 15 years," he said, "and sometimes we used to sit around and say to ourselves, `Wouldn't it be great if we could just go out and do this on our own for a living?' " Indeed, wouldn't it be great...
...Assistant Attorney General for the Criminal Division, is not an advocate of private prosecutions...
...Of course, not every older defense attorney is a match for an eager young prosecutor, and the battle is by no means one-sided...
...In North Carolina, the private prosecutor usually helps prepare the case, and sometimes argues in court...
...On the one side, we have thousands and thousands of private attorneys vying in a field that is at least as competitive as the computer industry...
...Larry Silverman, former Assistant U.S...
...By thinking up novel interpretations of the Constitution on behalf of their clients...
...One would be to adopt the British system, where criminal attorneys work "at the bar" and are randomly assigned to either the defense or the prosecution...
...The only young prosecutors I could recall making a name for themselves in recent years were Richard Ben-Veniste and Jill Vollner, the two federal attorneys who prosecuted Robert Haldeman, John Ehrlichman, and John Mitchell during the Watergate era...
...But it's hard to resist the financial rewards of switching to the defense...
...He said the boys attacked him and he was forced to kill both in self-defense...
...There are already about 6,000 attorneys employed by the states to defend indigent criminals...
...William Aronwald, former head of the federal government's organized crime strike force in Manhattan...
...Irving Seidman, former chief of the rackets bureau in the Brooklyn district attorney's office...
...Conservatives should stand for saner interpretations of the Constitution and not merely for older ones...
...I felt I had had the course with prosecution work," he told me in an inter-view...
...There seem to be three groups of people: defense attorneys, prosecuting attorneys, and most other attorneys...
...These are the attorneys who are fascinated by the criminal law, but who are discouraged by the low pay in the prosecutors' offices and can't stomach the idea of spending their lives defending criminals...
...There are currently 600,000 attorneys in this country—one for every 240 adult citizens...
...In the old days, one hard fact balanced this equation...
...Where are they today...
...Who would object to the idea of private prosecutions...
...Vollner, now Wine-Banks, also defends white-collar criminal cases, at Jenner and Block, a leading Chicago law firm that also handles a lot of big drug cases...
...It would be hard to demonstrate that the country would suffer grievous harm if the Supreme Court now disavowed—or was forced to abandon—its power to invalidate statutes conflicting with its own view of the Constitution...
...Private prosecutions were once common in the United States...
...Michael Armstrong, former chief prosecutor of the Knapp Commission on police corruption...
...Robert Fiske, former Manhattan U.S...
...offer countervailing testimony, but found it was illegal," said Paul Garland, himself an attorney...
...A much more direct and fruitful approach, however, might be to encourage private prosecutions...
...Similarly the Justice Department is now pressing the argument that in-dependent regulatory commissions are unconstitutional, because they improperly separate executive functions from presidential control...
...This has created an enormous imbalance in today's courtrooms...
...When Bonnie Garland was hammered to death by her boyfriend Richard Herrin in the 1982 "Yale Murder," her parents, Paul and Joan Garland, thought they were facing an open-and-shut case...
...Ask any attorney to describe the workings of the justice system and he will usually express it in the same way...
...Herrin had readily admitted the crime when he turned himself in seven hours later—and even became extremely upset when he learned Bonnie wasn't yet dead...
...Steve Trott, U.S...
...I suspect there is a whole sector of the legal profession that would leap at the chance to be-come involved in private prosecutions...
...I find my present work much more challenging...
...The criminal, of course, is the individual...
...Invariably, the calls break down in two ways...
...There they have joined with the usual academic liberalism to form a brutal combination...
...Washington, where he recently represented one of the Abscam defendants...
...Many other attorneys warn, with good reason, that private prosecutions would lead to vindictiveness—even chaos—in the justice system...
...But let him now get down to the substance of his dispute with contemporary jurisprudence...
...As one law school professor told me, "Most of our liberal students think of going into criminal defense, while the conservative students think of going into business...
...And who are the famous prosecutors...
...Prosecutors, on the other hand, view private prosecutions as an insulting suggestion that they "aren't doing their job...
...These incentives have long since worked their way back into the law schools...
...We tried to give the prosecutor's office some money in order to hire experts to William Tucker is The American Spectator's New York correspondent...
...There are too many lawyers working on behalf of criminals and too few working on the side of the publicand the victims...
...THE AMERICAN SPECTATOR MAY 1986 Without doubt, the law profession has become "defense-oriented...
...What we are left with, then, is a criminal justice system that pits two very different organizations against each other...
...As the New York Daily News remarked: "When big shots get into trouble, they usually hire lawyers from an `old boy network' of big-time former prosecutors...
...Nicholas Scoppetta, former head of the city's Commission of Investigation...
...Walk into any trial and you are likely to en-counter a young a.d.a...
...Finally, I should add that there are some attorneys who find the whole idea of private prosecutions positively exhilarating...
...All across the country, the pattern persists...
...Who would object to the idea of private prosecutions...
...If they do, someone may embarrass them with the passage in The Federalist No...
...Nearly all major cases involving drug dealers, white-collar criminals, and organized crime are handled by the "private sec-tor...
...Meanwhile, the defense almost prevented Joan Garland from telling the jury how she found her daughter's battered body because the testimony would be "too emotional...
...The work is dull and unglamorous, and the only time anybody notices you is when you make a mistake...
...There are a few possibilities...
...At one point they agreed to make amends...
...We believe we got a little more attention than we would have had with only the county prosecutor...
...F Lee Bailey, for example, made his reputation in the 1960s when he exhumed the case of Dr...
...The rest of us are "the state...
...Members of the general public call to express their own dissatisfaction with the justice system—often in terms far more violent than my own...
...But in important cases the gap in experience can become embarrassing...
...The Warren Court decisions have had an enormous impact...
...In the interim, New York City's Democratic administration has practically unraveled in ongoing scandal...
...We feel we got justice," said the father of one of the boys, who paid $600 in attorney's fees—about the same as the costs paid by the defense...
...Some successful prosecutors work their way into administrative positions...
...That is a more honest stand in contemporary debates on the Constitution, as well as a more compelling one...
...Herrin was also "adopted" by a Catholic nun, who attended the en-tire trial, rushing up to embrace Herrin in front of the jury at every opportunity...
...The older man took them for a ride to settle the terms...
...The victim of a crime, or the victim's family, would have the option of hiring his own private lawyer to assist the district attorney in the prosecution of the case...
...I think part of me will always be a prosecutor," she said...
...Once in office they are cautious, concentrating on building their "batting averages" with sure convictions...
...Because the murder was "domestic" in nature, the district attorney wasn't very interested in prosecuting and was ready to accept a plea bargain...
...attorney...
...The lion's share of the heroism, adventure—and eventually the financial reward—now lies with defending criminals, not with prosecuting them...
...This partly explains the seemingly inexorable drift toward constitutional interpretations favorable to criminal defendants...
...W.T...
...At the trial, Herrin received so much favorable testimony from Yale administrators that Garland later agonized, "It was as if he were applying for a job, rather than on trial for murder...
...But if conservatives want the Court to retain its powers while changing its doctrines, it will not do to thump about "original intent...
...The lawyers pursuing this argument—which seems to me as compelling and powerful as the argument for color-blindness in public policy—had better not try to rest their argument on specific evidence of the Framers' intent, however...
...Four hours later the man turned himself in at the police station...
...Manes resigned under the shadow of corruption charges and on March 13 killed himself...
...attorney...
...Second, he can join the public defender's office...
...He had never heard of the idea when I suggested it to him, and said he...
...She says,'Where did I go wrong...
...The individual against the awesome powers of the state"--that's the way attorneys describe the justice system over and over again...
...Private prosecutions, as I mentioned, have passed the test of constitutionality many times...
...In making idle conversation, I asked him if he had ever worked in criminal law...
...The victims in such cases should have some other option...
...The U.S...
...Well, Thomas Dewey usually comes to mind, but he lived a long time ago...
...On a recent trip to Washington, I heard it again when I found myself sharing a cab with a corporate attorney visiting his lobbyist...
...District attorneys generally compete with each other through elections...
...There seem to be three groups of people: defense attorneys, prosecuting attorneys, and most other attorneys...
...As Herald Price Fahringer, Claus von Billow's first attorney, told a defense seminar in New York last year: "We are constantly kneading and pulling these constitutional concepts, trying to shape them a little bit more in our favor...
...But then the Garlands confronted the justice system...
...On the other side we have a state monopoly—a pedestrian bureaucracy that is understaffed and notoriously unimaginative...
...The exclusionary rules to the Fourth and Fifth Amendments give defense attorneys a lethal weapon with which to blow apart the most airtight cases...
...Working your way up the ladder meant spending years scratching out a grubby existence...
...They hired Tim Valentine—now a congressman—to act as their private prosecutor, under an old North Carolina statute that allows the victims of crimes to hire private attorneys to argue their cases...
...Their bodies were found on an isolated country road...
...It was almost impossible for more than a few attorneys to make money in criminal defense...
...The justices of the Supreme Court, for the most part, are harassed and befuddled old men, not much given to serious or original thinking...
...Balanced against this are the approximately 9,000 attorneys working in various prosecutor's offices around the country...
...Rudolph Guilliani, the federal prosecutor in New York City, gets a tot of attention, but that only fuels rumors that he will run for the Senate...
...It may be possible, though, to put the creative talents of private attorneys to work on behalf of those other "individuals" in the system—the victims of crime...
...Anyone who studies the justice system very long cannot help but be impressed with the remarkable institutional momentum that now lies on the side of criminal defendants...
...From the public's point of view, the result is an extreme imbalance...
...This is a valid concern...
...For decades, the bankrolls of drug dealers and organized-crime figures have been the pot-of-gold at the end of the rain-bow for defense attorneys...
...It's not much different from a defense case...
...I doubt many Americans can name one prosecutor anywhere in the country...
...Once the system has been cast in this artificial mode, however, any attorney worth his salt will be with the "underdog"—meaning on the side of the accused...
...Hardly anybody I know thinks of working for the prosecution...
...There isn't any reason why crime victims and the general public cannot spend their own money to buy some defense against crime as well...
...Prosecutors are always overloaded and may often give scant attention to a particular case because it doesn't fit in with their "game plan...
...Over the last few months I have been doing radio call-in shows for my recent book (Vigilante: The Backlash Against Crime in America), which is critical of the justice system...
...He was indicted only after the local newspaper demanded that police further pursue the case...
...Vollner was one of the few former prosecutors I interviewed who had some misgivings...
...In fact, Sheppard's enormous pull in his small suburban community had almost succeeded in quashing the original investigation...
...But it is well to remember that that perspective has been very influential in the judiciary because very influential in elite opinion...
...The rule of thumb is that you doubleto-triple your salary when you go into private practice...
...military's legal system works in the same way...
...The lion's share of the heroism, adventure—and eventually the financial reward—now lies with defending criminals, not with prosecuting them...
...A very strong case can be made for the proposition that this is now our general condition—that there is no longer enough agreement on the core meaning or the compelling implications of most constitutional provisions for constitutional review by the courts to be an acceptable exercise of authority...
...Here is how such a system would work...
...But if private prosecutors were limited to cases where the district attorney has already secured a valid indictment, it is difficult to see how the system would lead to abuse...
...Most Southern courthouses, for example, had a "plead-'em-out" specialist who would charge five dollars to walk a defendant inside to plead guilty...
...I charged about the same as well...
...Sad to say, probably half the young law school graduates currently working as prosecutors will eventually end up as defense attorneys in private practice...
...The state may have awesome powers, but it also has awe-some responsibilities...
...This objection may be unavoidable, but it shouldn't be irrefutable...
...Almost as remarkable has been the instantaneous emergence of a fraternity of former prosecutors that is defending the troubled political establishment...
...Yet as Thomas Sowell points out, this formulation is wrong from the beginning...
...He will be out of jail less than ten years after the killing...
...Earl Warren was a California attorney general before becoming—oh, but let's not get into that again...
...Dominick Dunne, who covered the trial for Vanity Fair, said the contest "often resembled a football game between the New York Jets and Providence High School...
...it in law school...
...But it did strike a responsive chord...
...But the majority of today's young assistant district attorneys will probably end up arguing for the defense...
...But third—and probably most respectable—he can get his courtroom training in the prosecutor's office...
...There are few better ways to apply their acquired skills...
...Something must be done to redress the current system which, year after year, enlarges the rights of criminals at the expense of the general public...
...In the end, a conservative version of the Constitution will only seem compelling to a country that shares a conservative outlook on policy and politics...
...There are more legal minds on the side of the defense...
...And in truth what is wrong with the Court's solicitude for marching Nazis and brazen pornographers, its procedural obstructions of criminal justice and its enthusiasm for racial engineering schemes, its indulgence of confiscatory or special interest regulation and its op-position to any government protection of unborn babies—what is wrong with this bizarre set of policies is hardly en-compassed in the claim that they depart from "original intent...
...Rod Lankier, former New York State special prosecutor...
...Bailey "opened up new constitutional ground" by arguing that the "climate of opinion" created by newspaper coverage had denied Sheppard a fair trial...
...The prosecutors I have interviewed always have an embattled air about them...
...No," he mused, "but I have often considered putting my talents to work on behalf of the individual in his battle against the awesome powers of the state...
...There is no sense in daydreaming that the "rights revolution" of the last twenty-five years can be turned back...
...If Mr...
...The last thing we need is more lawsuits...
...Defense attorneys, of course, scream loudly because they realize they might be up against a much more formidable opponent...
...Sam Sheppard, a Cleveland physician convicted in 1955 of murdering his wife...
...My law-school professor tells me, `You're the best student I ever had and you became a prosecutor," one told me...
...Most criminals, after all, aren't very wealthy...
...and Charles Stillman, former assistant U.S...
...First, he can eke out the old scruffy existence as a private practitioner until he makes a name for himself...
...For decades, the Supreme Court has viewed the Constitution through the strange perspective of con-temporary liberalism—a perspective that tends to see all private property as potentially public and all public morality as properly private...
...In his book, How Can You Defend Those People?, James Simon Kunen reports—albeit favorably—that public defender offices routinely foster the idea that anything is fair as long as you "get your guy off...
...A few statistics tell the story...
...Abstract appeals to "original intent" are not going to bring the Court back to its senses...
...By all means, then, let our pugnacious Attorney General keep up the fight...
...In Claus von Billow's second trial, for example, the defense attorney was Thomas Puccio, a 40-year-old former federal prosecutor who had built a spectacular reputation trying drug cases and the Abscam trials...
...Defense work is glamorous and financially rewarding, while prosecutors toil at low pay in near-anonymity...
...There are generally three options...
...In Nash County, North Carolina, two teenagers had been harassing an older man in the neighborhood, shooting up his truck...
...That person is always a lawyer—not necessarily a defense lawyer, just a lawyer...
...One quarter of these—about 150,000 in all—will earn at least a portion of their incomes at some point in their careers from defending people accused of crimes...
...It has to protect everyone...
...An appeal on the grounds that private prosecutions are unconstitutional was rejected—as it has been many times in both state and federal courts...
...The prosecutor was a 28-year-old Rhode Island assistant district attorney who was still in law school when von Billow was tried the first time...
...attorney...
...thought it would disrupt the workings of the justice system...
...The best way to put attorneys to work, of course, is to pay them...
...How do they compete...
...16 THE AMERICAN SPECTATOR MAY 1986 Yet obviously something else is going on as well...
...Moreover, the public defenders and their unions are now gunning for "parity"—the idea that their government funding should match the prosecutor's offices', attorney for attorney, dollar for dollar...
...F Lee Bailey did both prosecution and defense work in the Marines before striking out on his own in private practice...
...Drawing assistant district attorneys and public defenders out of the same pool would at least tone down the adversarial culture that has polarized criminal work...
...72, where Hamilton claimed that Senate consent would be necessary for the President to remove any executive official (as is now the case only for regulatory commissioners...
...I never had any trouble working with district attorneys or judges...
...Seymour Wishman,author of Confessions of a Criminal Lawyer, candidly admits he joined the district attorney's office after law school because "I wanted to become a defense lawyer and I knew the best way to become a good one was to spend a few years prosecuting...
...The traditional grand prize is to become a judge...
...Among the criminal attorneys who have already signed on to represent the politicians are: Thomas Puccio, former federal prosecutor...
...Herrin was convicted only of second-degree manslaughter...
...How does a young attorney climb the ladder to a successful private criminal practice today...
...On the whole, voters and their elected representatives have in-deed displayed a good deal more sense than the Supreme Court in recent decades...
...But this plea for parity completely ignores the vast resources of the private criminal defense attorneys who handle 40 percent of the cases and generallyskim the cream of the crop...
...The criminal has to protect only himself...
...When public pressures finally forced a trial, the defense introduced an elaborate insanity plea, arguing that Herrin's obsession for Bonnie constituted a "diminished capacity...
...Ben-Veniste has his own criminal-defense firm in BUSINESS AS USUAL Three months ago Queens burrough president Donald Manes was found with his wrists slashed in a suicide attempt that he first attributed to an attack by two unknown men...
...All this is done under the strict supervision of the district attorney...
...Nevertheless, thanks to Bailey's efforts, the defendant's right to a neutral "climate of opinion" took precedence over the public's "right to know...
...The boys' parents didn't buy the story...
...I doubt that such appeals will makemuch impression in themselves on anyone's perspective on "due process" or "equal protection" or other grand principles of the Constitution...
...All this changed after Gideon v. Wainwright (1961) and the birth of the public defender's offices...
...In practice, the state's attorney is usually so overloaded he's happy to turn most of the work over to the private prosecutor," said Congressman Valentine, who handled about 100 private prosecutions over a 20-year career...
...fresh out of law school arguing against a far more experienced attorney...
Vol. 19 • May 1986 • No. 5
