“High-profile cases show a pattern of misuse of prosecutorial powers”

September 23, 2013

The Washington Times on September 22, 2013 released the following:

By Jeffrey Scott Shapiro

“It’s hard to imagine the U.S. as a place where citizens have to fear overzealous prosecution, but last week’s reversals in the cases of former House Majority Leader Tom DeLay and five New Orleans police officers are part of a troubling pattern reminiscent of the Soviet criminal justice system — a system in which the state is always right, even when it is wrong.

In both cases, the judges who overturned the original trial-court verdicts cited instances of prosecutorial overzealousness and abuse of power, making the two cases the latest high-profile trials to run aground on the basis of misconduct by the state’s attorneys.

The high-profile cases in recent years run the gamut from the ancient offenses of murder and rape to increasingly esoteric details of campaign finance and contractor law.

In 2008, Sen. Ted Stevens of Alaska, the longest-serving Republican in the U.S. Senate, was charged by federal prosecutors with failing to report gifts. During the campaign season, Barack Obama said Stevens needed to resign “to put an end to the corruption and influence-peddling in Washington,” and Senate Majority Leader Harry Reid, Nevada Democrat, moved to have Stevens expelled.

Stevens lost the election, but three months later, FBI agents accused prosecutors of withholding exculpatory evidence that could have resulted in the senator’s acquittal. Newly appointed U.S. Attorney General Eric H. Holder Jr. asked the court to vacate Stevens‘ conviction, but the damage already had been done.

The prosecutors’ misconduct destroyed Stevens‘ reputation and political career and affected the balance of power in the U.S. Senate in favor of Democrats.

Circumstances were not entirely different in the prosecution of former U.S. House Majority Leader Tom DeLay, who was accused by local Democratic prosecutor Ronnie Earle to influence state elections with corporate money.

Mr. DeLay was convicted in 2010, but the Texas 3rd Court of Appeals overturned his conviction last week, saying the charges were based on “insufficient evidence.” Mr. DeLay called the indictment “an outrageous criminalization of politics,” but again, a Republican had been run out of politics. Mr. DeLay said he would “probably not” run for political office again.

Washington lobbyist and power broker Jack Abramoff is not as sympathetic a figure as Stevens or Mr. DeLay, but some reports indicate that the Justice Department intimidated Mr. Abramoff into a confession, and his case also revealed how the “honest services fraud” law gives federal prosecutors almost unchallengeable power.

Technically, the law lets prosecutors charge people when they “deprive another of honest services,” but it has been used as a catchall charge when the state is looking to secure an indictment from a grand jury but has exhausted all other options.

The U.S. Supreme Court eventually had to narrow the statutory meaning of the honest services fraud law, enacted in 1988, to avoid striking it down for unconstitutional vagueness.

William L. Anderson, an economics professor at Frostburg State University, once wrote of the law, “Have you ever taken a longer lunch break than what you are supposed to do? Have you made a personal phone call at work or done personal business on your employer’s computer? Have you ever had a contract dispute with an employer or client? All of those things can be criminalized by an enterprising federal prosecutor.”

In another case, five police officers were accused of murder in the fatal shootings of two men on a New Orleans bridge amid the chaos after Hurricane Katrina.

The officers were white and the victims black, and racial tensions were running high. Federal prosecutors turned to civil rights charges in accusing the officers.

Despite the Fifth Amendment’s double jeopardy prohibition, federal civil rights statutes enable U.S. prosecutors to pursue felony charges against a defendant in limited instances even if they have been acquitted of underlying state crimes.

Evidence in the New Orleans case was compelling, and the officers were convicted, but U.S. District Court Judge Kurt Engelhardt ordered a new trial last week, saying the government “engaged in a secret public relations campaign” by anonymously making extrajudicial statements against the defendants on a New Orleans news site.

“This case started as one featuring allegations of brazen abuse of authority, violation of the law and corruption of the criminal justice system,” he wrote in his order.

“Unfortunately the focus has switched from the accused to the accusers. The government’s actions, and initial lack of candor and credibility thereafter, is like scar tissue that will long evidence infidelity to the principles of ethics, professionalism and basic fairness and common sense necessary to every criminal prosecutor, wherever it should occur in this country.”

The Duke University lacrosse players’ case is one of the most notorious of selective prosecution designed for political gain. North Carolina prosecutor Michael Nifong made numerous public statements incriminating the team and turning the media against the defendants.

Despite the accuser’s history of falsely reporting incidents and lack of evidence, Mr. Nifong pushed the politically popular case in the midst of his re-election campaign. State officials took over the case, dismissing all charges, taking the unusual step of declaring the defendants innocent — not merely “not guilty” — and Mr. Nifong was ultimately disbarred.

Russian author Fyodor Dostoyevsky once said that “you can judge a society by how well it treats its prisoners.” The same could be said of how fairly a judicial system prosecutes its accused defendants. Arrogance, not ethics, is emerging as criteria for prosecutorial discretion, and the result is a society based on fear, not freedom.”


Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal


To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Polish Ex-Official Charged With Aiding C.I.A.

March 28, 2012

The New York Times on March 27, 2012 released the following:


WARSAW — The former head of Poland’s intelligence service has been charged with aiding the Central Intelligence Agency in setting up a secret prison to detain suspected members of Al Qaeda, a leading newspaper here reported on Tuesday, the first high-profile case in which a former senior official of any government has been prosecuted in connection with the agency’s program.

The daily newspaper Gazeta Wyborcza reported that the former intelligence chief, Zbigniew Siemiatkowski, told the paper that he faced charges of violating international law by “unlawfully depriving prisoners of their liberty,” in connection with the secret C.I.A. prison where Qaeda suspects were subjected to brutal interrogation methods.

When President Obama took office in 2009, he said he wanted to “look forward, as opposed to looking backward” and rejected calls for a broad investigation of C.I.A. interrogations and other Bush administration counterterrorism programs. In sharp contrast, the Poles see the case as a crucial test for rule of law and the investigation by prosecutors here has reached the highest levels of Polish politics.

One of Poland’s prime ministers during the period when terrorism suspects were alleged to have been subjected to torture in Poland, Leszek Miller, could be charged before Poland’s State Tribunal, the newspaper said.

“We try to treat our Constitution seriously and try not to forget the fact that there was a manifest violation of the Polish Constitution within the country’s borders,” said Adam Bodnar, vice president of the Helsinki Foundation for Human Rights, based in Warsaw.

The effect, Mr. Bodnar said, is not simply a matter of looking back, as Mr. Obama said, but also of warning future leaders and officials that they can not operate with impunity. “This case is a huge threat to any Polish official that he will know in the future that such things cannot happen,” Mr. Bodnar said.

C.I.A. officers have been distressed by the public controversies that have broken out over the interrogation program in Poland and other countries, where foreign officials were assured that their assistance would always remain secret. But human rights advocates have applauded the inquiries overseas into what they believe was torture and illegal detention.

While successive American governments have chosen to avoid accusations of abuses, in Poland, where memories of the Communist era and its repressions remain sharp, prosecutors have moved aggressively to tackle the issue. Although pro-American sentiments run high in Poland, there is also great unease after decades of Soviet domination that the country is giving too much influence to a powerful ally.

Gazeta Wyborcza reported that Mr. Siemiatkowski had been charged in January but the matter had been kept secret until now. Prosecutors refused to confirm the reports, which cited an anonymous source in the prosecutor’s office as well as Mr. Siemiatkowski himself. “The investigation will remain confidential until further notice,” said Piotr Kosmaty, a spokesman for the prosecutor’s office in Krakow, which has been handling the inquiry.

A C.I.A. spokesman declined to comment.

The C.I.A. has never formally revealed the location of the overseas “black site” prisons, but intelligence officials, aviation records and news reports have placed them in Afghanistan, Thailand, Romania and Jordan, as well as Poland and other countries. Out of fewer than 100 prisoners held in the facilities, roughly 30 were subjected to what the C.I.A. called “enhanced” interrogation techniques, according to agency officials.

In Poland, detainees were held in a makeshift prison at a secret base near Szymany Airport, about 100 miles north of Warsaw. All three of the C.I.A. prisoners who were waterboarded are believed to have been held in Poland, including Khalid Shaikh Mohammed, the architect of the Sept. 11 attacks; Abd al-Rahim al-Nashiri, who is charged in the 2000 bombing of the American destroyer Cole; and Abu Zubaydah, who ran a terrorist camp and facilitated militants’ travel.

But all three of the men spent time at other black sites as well, and it is not certain which interrogation methods were used where. Lawyers for Abu Zubaydah and Mr. Nashiri in 2010 filed a formal request with Polish authorities asking them to take criminal action in connection with the C.I.A. program.

Joseph Margulies, a lawyer for Abu Zubaydah, said that he was pleased by the news of charges, which he said were the first to be brought anywhere as a result of the black site program.

Attorney General Eric H. Holder Jr. did order a limited investigation of the interrogation program. Mr. Holder announced in July that no charges would be filed in connection with interrogations at the black sites but that the deaths of two prisoners in American custody, one in Iraq and one in Afghanistan, remained under investigation.

Polish officials have long denied charges by human rights groups that the country hosted one of the black sites employed by the C.I.A. in the campaign against terrorism. Mr. Miller, who was prime minister from 2001 to 2004 and is the leader of the Democratic Left Alliance, a left-wing party in Poland’s Parliament, continues to deny that Poland was ever the site of secret detention facilities.

“I refused to answer any questions from the prosecution and I shall continue to do so at every other stage of the proceedings, including in court,” Mr. Siemiatkowski told the newspaper.

Mr. Bodnar said: “I remember the lessons of constitutionality given by the Americans in the early ’90s, always saying to us, you have to create a new constitution and every action by state authorities must have limits. Poland has just learned this lesson well.””


Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment


To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.