Chapter 22: The Bar At Its Lowest
Neither the government nor the courts ever acknowledged or discussed the highlighting of crucial exculpatory statements as Brady material. No court ever required the politically powerful former prosecutors to answer for their conduct. No court cared that they capitalized on their misconduct repeatedly.
But ethics rules required that they report the conduct of these prosecutors. Bill Hodes, co-counsel and a former law professor, was adamant that the violations be reported, and he took the lead.
They started with Kathryn Ruemmler, since she was now White House counsel, a position of extreme trust, power, and influence. Then followed reports on Friedrich and Weissmann. They also sent a letter to the Justice Department’s Office of Professional Responsibility against Hemann.
These ethics charges are serious. Although far too rare, other prosecutors have been fired, suspended from the practice of law, or disbarred. When anyone other than a prosecutor hides evidence or makes false statements in court or to a government agent, it is a federal crime: perjury, obstruction of justice, false statements to a federal agent, subornation of perjury, witness tampering, etc.
The complaints were covered up. The Texas Bar replied to the complaint against Friedrich saying “this office has determined that the information alleged does not demonstrate professional misconduct or an attorney disability”, and the complaint was dismissed.
These bald conclusions were flatly incorrect under the Rules, and bore no resemblance to justice. Bill repeatedly tried to get the bar’s attention. “Serious prosecutorial misconduct and abuse of power eat at the heart of the justice system and undermine the rule of law.” But courts are loath to overturn convictions, and prosecutors have absolute immunity from suit by a wronged citizen. A stern but fairly administered disciplinary system is society’s best hope. But the Texas State Bar did not have the integrity, the fortitude, or the conscience to do what was required by the ethical rules. No one was willing to take on these powerful people. It was much easier to pretend it was nothing.
The complaints to the other bars followed suit. “So the bar says it’s up to the courts to find a Brady violation—which requires reversal of a criminal conviction—while the courts apply the wrong legal standard and are loath to reverse convictions, the department claims nothing is material unless the department says so, and corrupt prosecutors run rampant.”
The charges against Weissmann in the New York Bar were “referred” to the OPR (Office of Professional Responsibility) in the DOJ. This was interesting, because it was the DOJ defending Weissmann on the New York charges. That’s like giving the fox the key to the chicken house. His defense by the DOJ was that the ethical rule does have a materiality requirement and must be read coextensive with the Brady rule. But that position cannot be squared with the text of the ethical rule itself.
“In fact, the DOJ now seeks to impose that rule nationwide. That is the reason for its opposition to the new legislation to codify Brady that has sat in Congress for the last four years. The DOJ wants the sole discretion to withhold whatever evidence it wants to withhold. It wants to be the sole arbiter of what is material to the defense. It wants an unlimited and unchecked License to Lie.”
The complaint against Weissmann was dismissed. Then in early 2014, he quietly left the FBI and joined the faculty at NYU. The dismissal cleared the way.
In her final words, Ms. Powell writes:
“Our system of justice is crying for a culture change. We must return to a system in which prosecutors seek justice more than headlines and in which judges are willing to judge. Our Founding Fathers created three separate but equal branches of government. They intended the courts to serve as a check and balance on the executive branch, which runs the prosecutions, and on the legislative branch, which makes the law. Judges are the only immediate and most meaningful check on wrongful prosecutions and the misconduct of prosecutors. Judges are the only ones who can spare a defendant the stress and anxiety of a trial on bogus charges or concocted facts. When judges hold prosecutors to the highest standards and provide a fair trial, they do justice.”
“One court remains over which the government, the Department of Justice, and the current and former prosecutors still have no control—the court of public opinion.”
“There is no telling how many others have been or will be wrongly convicted. What happened to the defendants in this book can happen to anyone. Blind judges do not render blind justice. If it were your husband, your sister, your child on trial, what should the rules be? Should the prosecutor be required to disclose everything that only he possesses that is favorable to the defense? Should those who are supposed to enforce the laws be required to abide by them?”
Senate Bill 2197, the Fairness in Disclosure of Evidence Act is still sitting in Congress. It would create a clear rule that federal prosecutors must produce all evidence favorable to the defense. Citizens, judges, lawyers need to make their voices heard on this issue.
The prosecutors in the cases exemplified here are not only unscathed but flourishing. “As long as they are free from accountability, the innocent are at risk and the public can have no confidence in our legal system. The rule of law has to apply to everyone.”
“The collateral damage from a wrongful prosecution is beyond measure. Marriages are shattered, children left parentless, careers ended, families devastated, financed ruined—all for what? To advance the career of a headline-grabbing, ethically, morally and legally corrupt prosecutor? An indictment and corrupt criminal prosecution fracture lives forever.”
“When an innocent person is imprisoned, either the guilty person is still free or there is no guilty party at all because no actual crime has been committed. The administration of justice is robbed of any validity and society loses from all sides.”
Ms. Powell then goes into listing where each of the players in this story are at the time the book was printed, and how the innocent defendants of cases still had to accept guilt in the proceedings. Ms. Powell questioned her ability to continue to practice law considering her loss of trust and faith in the system. The various bar associations have abdicated all responsibility regarding violations by prosecutors. “The only ‘change’ in the Department of Justice has been for the worse.”
Meanwhile, misguided, ignorant, overzealous, ambitious, narcissistic, or dishonest current and former prosecutors, some of whom destroy innocent people, are making daily decisions that affect all of our lives and the very future of this country. Much more must be required of those who represent us in the courts. They hold in their hands the very lives of citizens while wielding the unbridled power of the Sovereign—to seek Justice or deal egregious Injustice.
Ms. Powell states “It is beyond ironic that Jim Brown is still a felon convicted of perjury and obstruction of justice while the prosecutors hid evidence of the truth; and these prosecutors likely suborned perjury.”
Basically these last two chapters and the epilogue state unequivocally that our Justice Department is in shambles, no longer adhering to the Constitution or the creeds of our forefathers. I quoted all the phrases in the chapters that I agree with and believe that we have to get the public to realize. I don’t think I need to reiterate them here.
I just want to state that I am one such innocent citizen who has had her life shattered by illegal prosecution. I, and the hundreds of other doctors in the country, have suffered at the hand of a system willing to create crimes where they don’t exist in order to further their own careers. I can only fall back on God’s promise—that the evil ones will not succeed, and will eventually receive their “reward”, and those of us that have been persecuted in His name will be blessed.
In addition to the doctors, I also want to mention a lot of other areas of criminal prosecutions of innocent people going on today. Probably half of the prisons are filled with people for drug crimes. Many of those people never committed a crime, but are charged with distribution or conspiracy and had to take a plea because they couldn’t afford a trial. Another quarter of the incarcerated were never guilty of the crime they were charged with. I met many secretaries doing time for the mortgage company fiasco of 2008, where they were charged with conspiracy based on sending out emails for their bosses, while their bosses are still sitting pretty in the offices. Also, many people are in prison for tax crimes or Medicare fraud, and they didn’t even know what they were doing were crimes.
There are three things I want to see happen in our Justice Department.
1. Write laws that, as stated in our Constitution, the common man can understand. Laws are currently being created with the sole purpose to charge people with crimes to fill the prisons. And they are written so vaguely or convoluted, so that only a lawyer can possibly understand. They are written by lawyers for the express purpose of forcing people to hire them.
2. If the government thinks a crime is being committed intentionally, first inform the person of such and give them a chance to make amends. Then, if it continues, charge them. No one should be convicted of a crime they did not know they were committing. As is stated in Three Felonies a Day, another good book by Harvey Silverglate, currently every citizen in this country commits three felonies a day. So it is just by chance that you are not doing time in prison.
3. Reverse all convictions of all doctors charged with distribution or any other aspect of Title 21, the Controlled Substances Act. Exonerate us and give us back our licenses without having to jump through all the hoops set up by the Boards of Medicine.
If you are interested in communicating with your legislators about the egregious conduct now accepted as normal in our justice department and get some laws on the books to correct it, please join my letter writing/calling campaign. You will find contact numbers and emails for the legislators here on the website on the pages under Call to Action/Letter Writing Campaign on the menu. Just follow the submenus to the section you want. This is still under production, but is my next priority to finish. One government source for this information is: https://www.congress.gov/members