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Headline-Chasing Prosecutors Never Seem To Learn

The Justice Department’s focus on pursuing publicity rather than justice keeps embarrassing federal prosecutors. You’d think they would learn from experience.

The most recent example is the department’s failure to win a conviction against John Edwards. U.S. District Judge Catherine C. Eagles declared a mistrial last week after the jury acquitted Edwards of one charge and failed to reach a verdict on the five remaining counts. It was a remarkable defeat for Justice, considering that the judge was clearly of a hanging disposition and that the defendant had the moral character of Dorian Gray. Yet, remarkable as it was, this was not an isolated instance of prosecutorial futility.

The Edwards mistrial calls to mind the botched prosecution of the late Ted Stevens, whose conviction was later jettisoned due to admitted Justice Department misconduct. And the failure to convict Edwards is the second high-profile embarrassment the department has faced just this year; a major corruption case in Alabama also collapsed due to lack of evidence in March.

And let us not forget the department’s forays against two of baseball’s former elite players. Its first attempt to try Roger Clemens for allegedly lying to Congress about steroid use ended in a mistrial after just two days. The retrial has now slogged through eight weeks of testimony and arguments and, after several dismissals, has only one alternate juror remaining. If the government is very lucky, the case will make it to the jury - with enough jurors remaining to prevent this trial from aborting as well - sometime next week.

Meanwhile, former outfielder and home run king Barry Bonds is appealing his conviction last year on a single count of obstructing justice by giving rambling testimony before a grand jury investigating his own alleged steroid use. The jury in Bonds’ case deadlocked on several other counts. The government will wait until Bonds’ appeal is resolved before deciding whether to retry him those counts remaining.

Steroid use in sports is properly a matter for league commissioners to adjudicate, not camera-seeking congressmen and U.S. attorneys. It is no coincidence that the targets of most of these failed or minimally productive cases are big names who command big headlines. Prosecutors have shown little interest in pursuing long-retired journeyman pitchers and utility infielders on federal charges.

The thread that runs through all of the aforementioned cases is an attempt to retroactively create federal crimes through the aggressive use of loosely written statutes. When did it become possible for a grand jury target like Bonds, who was fully entitled under the Fifth Amendment not to say anything at all, to go to jail because he failed to volunteer a sufficiently concise and to-the-point response to a prosecutor’s question?

In Edwards’ case, federal prosecutors accused him of taking illegal campaign contributions, even though the contributions did not go to his campaign and he never personally accepted them.

Eagles, the presiding judge in the Edwards case, perhaps inclined to sympathize with the late Elizabeth Edwards, did everything in her power to make the prosecution’s job easier. She told the jury that it could convict if just one of the purposes for which the donors intended the money in question to be used was to help Edwards’ presidential campaign. Neither donor could testify to that effect, however, as Fred Baron died in 2008 and Rachel “Bunny” Mellon is 102 years old.

Eagles did not allow Edwards to present direct testimony to show that the Federal Election Commission decided the donations were not campaign contributions. Nor did Eagles throw the case out after Edwards’ former campaign treasurer, Laura Haggard, testified that she did not consider them contributions either.

Yet the government argued that Edwards somehow knew the contributions were, in fact, illegal campaign contributions, even when campaign finance experts said they were not.

Eagles allowed the case to go to the jury. The prosecution’s only real hope of winning a conviction was that the jurors would be so repulsed by Edwards’ personal characteristics that they would convict him even in the absence of evidence that he actually broke the law. It did not work. Some jurors later told the press that they simply lacked the evidence to convict, despite personal belief that he was guilty on at least some counts. The jury could only act on what the prosecution gave them; it wasn’t enough.

Melanie Sloan, director of the Citizens for Responsibility and Ethics in Washington, told The New York Times that the Justice Department’s case against Edwards was risky, relying as it did on new interpretations of campaign finance law. Sloan went on to say: “The cases that they are deciding to prosecute, and not prosecute, reflect an incoherent strategy. At some points they are willing to be incredibly aggressive, like with John Edwards, and on the other hand they are overly cautious in refusing to prosecute people like John Ensign and Don Young.”

That’s probably not quite accurate. In legal terms, the department’s strategy might be incoherent, but in practical terms it makes sense. The Department seems to be more interested in attracting cameras than in securing convictions, so it prosecutes certain cases more for their publicity value than for their legal merits.

Baseball can take care of itself, and voters can make their own judgments about despicable people. Prosecutors are wasting substantial resources pursuing phantom crimes and transient headlines. They may be trying to shame the people they think are bad guys, but the process brings no glory to Justice, either.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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