Prosecutors and the Spiderman Principle

“The United States wins its point whenever justice is done its citizens in the courts.”   — Inscription on the wall at U.S. Department of Justice, Washington, D.C.

There’s a well-known scene in the 2002 Spiderman movie where Uncle Ben is talking to Peter Parker. Peter has just begun to discover his super powers and was recently involved in a fight at school where, much to his own surprise, he beat up the school bully. Uncle Ben, concerned about the changes he is seeing in Peter, cautions him that his ability to do something doesn’t automatically give him the right to do it. “Remember,” he says, “with great power, comes great responsibility.”

This line is actually a paraphrase of one written by Stan Lee in the very first Spiderman comic book in 1962. It also found its way last term into a Supreme Court opinion by Justice Kagan in Kimble v. Marvel Entertainment, LLC., making her no doubt the first Supreme Court Justice to cite both Dr. Seuss and Marvel Comics in the same year.

But my fondness for this saying has nothing to do with comic books. My white collar crime students get used to hearing me talk about the “Spiderman principle” – with great power comes great responsibility – whenever I talk about the special role that prosecutors play in the criminal justice system.

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The Special Responsibilities of Criminal Prosecutors

The prosecutor’s role is different from that of any other advocate. Normally an advocate’s job is to get the best result possible for your client – to win, if possible – while acting within the bounds of law and ethics. In most situations an advocate has a duty to his client, not a duty to pursue truth, justice, or some other ideal.

For example, a criminal defense attorney’s duty is to represent her client zealously, even if she knows he is guilty. She has no obligation to seek the truth; in fact, in many cases she will be doing her job if she can obscure the truth and keep it from coming to light. A civil attorney representing a company whose products injured people will get the case thrown out if there’s a legal basis to do so, even if the company is clearly responsible and fairness suggests the victims should be compensated.

But a prosecutor’s role is different.  His job is not to “win” – at least not if winning is defined as convicting someone, anyone, for a particular crime. The prosecutor’s job is to ensure that justice is done. That means doing your best to make sure that the rules are being followed, that exculpatory evidence is disclosed, that the defendant’s rights are protected, and above all that you are prosecuting the right people. It means dropping charges or not bringing charges at all if it’s the right thing to do, even if you could probably get a conviction if you went to trial.

These special obligations of prosecutors may not always be clear or intuitive to the general public. Popular culture tends to portray lawyers as gladiators battling in the courtroom coliseum – and gladiators generally fight to win. Prosecutors are frequently portrayed in movies or novels as power-hungry or politically motivated, bent on winning at any cost. And it seems that every week brings some new story about a prosecutor who withheld exculpatory evidence or engaged in some other kind of misconduct that resulted in the conviction of an innocent person.

But the duty of the prosecutor to seek justice is not an anachronism or a quaint platitude. To good prosecutors, it is at the heart of their professional identity, part of their DNA. For the justice system to function effectively, it’s vital that it remain so.

The Prosecutor’s Role

The Supreme Court famously described the role of the prosecutor decades ago in Berger v. United States:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Many other cases have recognized this obligation of prosecutors to do justice and not merely to convict. Prosecutors are expected to be zealous advocates, but are expected to temper their zeal with recognition of their broader responsibilities.

This unique role of the prosecutor is recognized in various ethical and professional standards as well. For example, the American Bar Association Model Rules of Professional Conduct, which have been adopted by nearly every state, include Rule 3.8 entitled “Special Responsibilities of a Prosecutor.” It provides, among other things, that a prosecutor must not knowingly bring charges not supported by probable cause, must work to ensure that the rights of the defendant are protected, and must make timely disclosure to the defense of all exculpatory evidence.

In this cynical and partisan age it’s easy to dismiss the special obligation of prosecutors as a naïve and unrealistic ideal. Some suggest it is contrary to human nature: competitive lawyers will always try to win, and asking them to do anything less is doomed to fail. Critics argue that prosecutors are just politicians, who will do what is popular rather than what is right.

I don’t agree. To most prosecutors – and to all good prosecutors – this duty to seek justice really does mean something. I saw it put into practice every day during my twelve years as an Assistant United States Attorney. Prosecutors may not always agree with each other, and certainly may not always agree with defense attorneys, over how best to fulfill their obligations in a given situation. They may make mistakes while carrying out their duties. But they always know that they, unlike other advocates, do have a higher duty.

It’s not that good prosecutors don’t try to win — it’s that they must have a different concept of what “winning” means. As the inscription on the wall at DOJ provides, the prosecutor and the government win when justice is done in the courtroom. In any given case that may mean no one is ever prosecuted or that a guilty defendant walks free, if that’s what the law requires. Winning doesn’t mean locking someone up by any means necessary.

The Planes that Don’t Crash

One reason some may doubt that prosecutors still honor their obligation to do justice has to do with widely publicized cases of prosecutorial misconduct. It’s not uncommon to see reports of a case where a defendant was wrongfully convicted after prosecutors withheld exculpatory evidence, encouraged witnesses to lie, or engaged in some other misbehavior. Such reports have led some to claim there is an epidemic of prosecutorial misconduct in this country.

I would never seek to minimize the seriousness of misconduct when it does occur. True prosecutorial misconduct can cause tremendous harm, including in the most extreme cases sending an innocent person to prison or even to death row. Actual misconduct should be dealt with swiftly and severely and cannot be condoned. But recognizing all that, the truth is that evidence of an “epidemic” of misconduct is remarkably thin.

Press accounts may focus on one particular case or a handful of cases, and the misconduct may indeed be appalling. But any single case also has to be placed in context: each year in the United States there are several million felony prosecutions at the state and federal level. Examining a handful of individual cases actually says nothing about what is the norm across all criminal prosecutions.

There is an old saying about journalism: “no one writes about all the planes that don’t crash.” Cases of egregious misconduct make headlines, and rightly so. But no one reports on the thousands of cases every day where prosecutors are fulfilling their obligations and following the rules. No one writes lengthy research studies about how prosecutors are doing their jobs properly. Judges don’t write opinions about how the prosecutors in their case adhered to all the appropriate professional standards. Like the thousands of safe airline flights every day, these cases go unnoticed because the system is functioning as it should.

Law is a human enterprise and therefore is necessarily flawed. There are tens of thousands of prosecutors working around the country at the federal, state and local level. In any field of endeavor that large you are going to have bad actors. There are bad prosecutors, just as there are bad bankers, bad doctors, bad hedge fund managers, and bad corporate CEOs.

I’m not naïve; I don’t deny that prosecutorial misconduct happens. But I do reject the claim that the behavior of the “bad apples” is in fact the norm.

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It’s Not Just the Law, It’s a Good Idea

Good prosecutors seek to do justice and play by the rules because it is their moral, ethical, and professional obligation to do so — but they soon learn it is also in their own professional self-interest. Even in large cities, the criminal law bar is a relatively small community. Within that community the most valuable asset a prosecutor has is his or her reputation.

If a prosecutor develops a reputation for being unethical, defense attorneys will learn not to trust her. That will make them less likely to encourage clients to trust the prosecutor during plea negotiations, or to advise a client to cooperate in an investigation. This will make it much more difficult for the prosecutor to resolve cases quickly or pursue complex investigations. A prosecutor doesn’t need the defense bar to love her, but she does need them to respect and trust her if she’s going to be effective.

Judges, too, may take action against unscrupulous prosecutors. Unlike most lawyers, prosecutors appear repeatedly before the same small group of judges, who rule on countless matters in the prosecutors’ cases. Judges will stop trusting a prosecutor who develops a reputation for playing fast and loose with his professional obligations. Anything that prosecutor asks the judge to do will begin with a presumption of skepticism and mistrust, making the prosecutor’s job much more difficult. A disgruntled judge can make a prosecutor’s life very miserable indeed.

If a prosecutor’s office develops a reputation for misconduct, that also will have an effect on its jury pools. Juries are drawn from members of the local community. If, based on press reports and incidents from other cases, the community does not like or trust the prosecutor’s office, members of a jury are less likely to trust the prosecution in any particular case and may register that distrust with their verdict.

In short, good prosecutors soon learn that abiding by their professional and moral obligations is not merely the right thing to do – it is also the way to be most effective as a prosecutor. Ignoring these obligations may allow an unscrupulous prosecutor to secure a conviction in a particular case, but in the long run it will catch up with him.

DOJ seal - what are the special responsibilities of a prosecutor?

“Do the Right Thing”

When writing a note or commendation to a Department of Justice attorney, former Attorney General Janet Reno would often close with the tag line, “Do the right thing.” It’s simple – and may sound corny to some – but that admonition nicely summarizes the goal of every good prosecutor.

A friend who is a former prosecutor turned defense attorney tells me that when he meets with prosecutors about a case he proceeds on the assumption that the prosecutors are acting in good faith. This is much more effective, he says, than taking the position of some defense lawyers that the prosecutors are all jack-booted thugs. But in addition to being more effective it has the virtue, he believes, of being true. Most prosecutors, most of the time, are acting in good faith and trying to do their jobs appropriately.

Prosecutors wield a tremendous amount of power, and with such power always comes the potential for abuse. The ability to launch even a grand jury investigation, much less to indict, is the ability potentially to ruin someone’s life. A lawyer given that kind of power needs to recognize the responsibility that goes along with it, and must exercise that power with some humility, compassion, wisdom, restraint and judgment. And if you can’t do that, you should find another line of work. (I hear estate planning is fascinating.)

But for those willing to assume the responsibilities that go along with the job, criminal prosecution is an incredibly rewarding career — and an honorable one. Prosecutors and defense attorneys doing their jobs appropriately are the critical foundation of our criminal justice system. Although prosecutor bashing is very fashionable these days, good prosecutors working hard and trying to do the right thing will always be the true face of the profession.

People hired to be prosecutors must understand their unique obligations and have those responsibilities drilled into them from day one. The leadership in prosecutor’s offices must always ensure they are creating a culture where these obligations are recognized and embraced. A good prosecutor never forgets that he or she is not just another advocate – and never forgets the Spiderman principle.

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Welcome to New Jersey: The Gloves Come Off in the Senator Menendez Prosecution

Update 10/9/15: on Thursday Oct. 8 the judge denied the remaining motions to dismiss, including those based on the definition of “official acts.”  On Friday Oct. 9 the defense filed a notice that it is appealing the denial of the motions to dismiss to the Third Circuit.

Update 9/28/15: today the judge granted the defense motion to dismiss four of the bribery counts (two against each defendant) for failure to allege a sufficient quid pro quo.  A number of other motions, including the motions to dismiss based on the speech or debate clause and prosecutorial misconduct, were denied.  A few motions remain outstanding, including those based on the definition of “official acts.”

If anyone thought the courtroom confrontation between federal prosecutors and New Jersey Senator Bob Menendez was going to be some kind of decorous legal debate, that notion should be dispelled by the papers recently filed by both sides.  The case is shaping up as a clash that will have all the quiet gentility of a New Jersey mob war.

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Menendez and his co-defendant Salomon Melgen were indicted last April in New Jersey federal court on multiple counts of bribery and related charges. (You can find my discussion of the indictment here.) The indictment alleges that over a number of years Menendez used the powers of his office to benefit Melgen, and in exchange Melgen gave Menendez a series of valuable gifts and contributions. These included multiple trips on Melgen’s private jet, repeated stays at a luxury villa in the Dominican Republic, a vacation in Paris, and large donations to various campaign funds and a legal defense fund that would benefit Menendez.

The actions Menendez allegedly took for Melgen in return fall into three categories: 1) Menendez worked to help three different girlfriends of Melgen obtain visas to come to the United States; 2) Menendez intervened with State Department officials seeking to have them pressure the Dominican government to move forward on a multi-million dollar contract Melgen held to provide cargo screening services at Dominican ports; and 3) Menendez met with HHS officials and otherwise sought to intervene on Melgen’s behalf in a dispute in which Medicare was seeking to recover millions of dollars in alleged overbillings from Melgen. (That dispute also led to Melgen being indicted for Medicare fraud in a separate case in Florida, shortly after Menendez and Melgen were indicted in the New Jersey case.)

The defense filed its first round of motions on July 20. It was a legal carpet-bombing: a total of fifteen different motions, totaling about 400 pages, with eleven different lawyers appear on the pleadings. But apart from the sheer volume of paper, what’s most notable is the nature of many of the arguments.

The Godfather famously remarked, “It’s not personal, it’s strictly business” – but the defense here has made it personal. The defense lawyers do not merely challenge the legal sufficiency of the charges (although they do plenty of that); they attack the integrity and motives of the prosecutors themselves. Several of the motions are devoted to claims that prosecutors and investigators engaged in deliberate misconduct in order to secure the indictment.

Among the allegations: that prosecutors deliberately misled the grand jury on legal issues; provided false or misleading evidence to the grand jury; improperly brought out inflammatory evidence about various women involved with the defendants; improperly leaked confidential grand jury material; and that prosecutors and investigators badgered, misled, and otherwise mistreated witnesses, including the Senator’s family and staff.

This level of personal attacks on the prosecutors is unusual, but it may be an unfortunate and inevitable legacy of the botched prosecution of former Alaska Senator Ted Stevens. In the wake of that debacle, defense attorneys likely feel they have a better chance of obtaining a sympathetic judicial ear when they allege prosecutorial misconduct in a high-profile corruption case — regardless of whether the allegations have any merit.

Prosecutors hit back hard on August 24. They managed to slay not quite as many trees, requiring only seven consolidated responses to the fifteen defense motions and about 2/3 the number of pages. And they made a number of misconduct allegations of their own: prosecutors claim the defense pleadings contain misleading excerpts of testimony, incomplete quotations, and other mischaracterizations of the facts. It all adds up, the prosecutors argue, to a pattern of deception that could not be simply inadvertent.

On the papers it seems to me that the government has the better of virtually every legal argument. A few highlights:

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Speech or Debate

As expected, a linchpin of Menendez’s arguments is that his actions are shielded by the Constitution’s Speech or Debate clause. As I discussed in this earlier post, the Speech or Debate clause, where it applies, provides Members of Congress with absolute immunity from being prosecuted for their legislative activities. But the clause does not apply to everything a Member does or everything that is part of his or her job; its coverage is limited to “legislative acts.”

Legislative acts include those actions that are integral to the actual process of introducing, debating, and passing legislation. As the Supreme Court has said, the issue is whether it is necessary to inquire into how the Member of Congress spoke, debated, or argued, or into anything else done on the floor or in committee. Acts that take place outside of the halls of Congress also may be protected, but only if they are integrally linked to the legislative process itself.

A legislator’s contacts with members of the Executive branch typically are not considered protected legislative acts. Predictably, Menendez has argued that this case is an exception.  He claims that his actions on the port contract and the Medicare dispute were not simply attempts to intercede on Melgen’s behalf but were in pursuit of a broader legislative policy. For example, he argues that when he met with State Department officials about the port contract he was actually working on the policy issue of ensuring adequate port security in countries that ship to the United States. Similarly, he claims that when he met with HHS officials about Melgen’s billing dispute he was really pursuing broader policy questions about HHS and Medicare reimbursement practices.

As the prosecutors point out, Menendez’s papers wield the word “policy” as though it were some kind of talisman, suggesting that if a Senator’s actions have anything to do with “policy” then they are protected by the Speech or Debate clause. But this is not the law: the Supreme Court decisions on Speech or Debate repeatedly use the term “legislative acts,” not “policy,” to define what is protected — and Menendez’s actions do not appear to be legislative acts.

It would be relatively easy for a corrupt Senator to come up with a “policy” argument concerning any actions taken in exchange for a bribe. For example, a Senator who took a bribe to pressure Pentagon officials to award a contract to a particular company could argue that he was simply working on defense “policy” or on Congressional oversight of defense spending. If this were the standard, it would effectively immunize virtually anything done by members of Congress, allowing them to accept bribes with impunity.

In addition to arguing that the defense has the wrong legal test, the prosecutors also point to a significant amount of evidence – including e-mails, witness statements, and other documents – demonstrating that, as a factual matter, the purpose behind Menendez’s actions was pretty clearly to help out Melgen, not to fulfill some broader legislative or oversight role.

That a Senator can come up after the fact with a “policy” that is somehow related to his actions does not transform those actions into protected legislative acts. Menendez’s attempts to shield his efforts on Melgen’s behalf are unlikely to derail the prosecution. But because issues concerning the Speech or Debate clause may be appealed immediately, regardless of what happens before the trial judge the fight over these questions could easily delay the trial for a year or more.

(As an aside, Menendez does agree that one category of his efforts on Melgen’s behalf – the work to obtain visas for Melgen’s girlfriends — was “pure casework” and thus not protected by the Speech or Debate clause. All of that activity, however, took place outside the statute of limitations, so there is little downside for Menendez in this concession. If he succeeded in having everything about the port contract and Medicare dispute thrown out of the case, he likely could argue that what remained of the prosecution was time-barred and also should be dismissed.)

“Official Acts”

Another key aspect of Menendez’s defense is the claim that any actions he took on Melgen’s behalf were not “official acts” within the meaning of the federal bribery laws. This is a popular defense argument in public corruption cases these days; it’s the centerpiece of the defense in the prosecution involving former Virginia Governor Bob McDonnell and his wife Maureen. (You can find my analyses of the “official act” issue in the McDonnell case here and here. McDonnell will soon be asking the Supreme Court to review his conviction, based largely on this question of whether he performed “official acts.”)

The prosecutors have some fun with Menendez’s claim in their Speech or Debate response. Menendez, they note, has argued that nothing he did was an “official act” within the meaning of the bribery laws. But the Speech or Debate clause protects only those actions integral to the job of a legislator, which would seem by definition to be official acts. By arguing that his efforts on Melgen’s behalf were not “official acts,” therefore, Menendez has essentially conceded that they are not protected by Speech or Debate. He can’t have it both ways.

But in any event, the law is pretty clear that interceding with the Executive branch can be an “official act” subject to the bribery laws. Again, if this were not the case, legislators would be free to accept bribes with impunity in exchange for pressuring Executive branch agencies on behalf of the bribe payor.

As the prosecutors point out, Menendez’s arguments boil down to this: everything a Member of Congress does either: 1) is a legislative act shielded by the Speech or Debate clause; or 2) is not an “official act” and so cannot be charged under the bribery laws. This “heads I win, tails you lose” approach would, as prosecutors put it, provide a “blueprint for immunizing criminal activity on Capitol Hill.”  These claims are unlikely to prevail.

The Prostitution Allegations

Another aspect of the defense pleadings may end up backfiring. One of their arguments is that the entire prosecution is tainted because the case began after allegations surfaced that Menendez and Melgen had procured the services of underage prostitutes in the Dominican Republic.  Menendez argues that these allegations came from political opponents or possibly the Cuban government, and that they are so inflammatory that they fatally tarnish the entire prosecution. The defense also claims that prosecutors asked improper and prejudicial questions in the grand jury about Melgen and Menendez’s girlfriends and other women seen with them.

Although the allegations about underage prostitutes were indeed what initially led prosecutors to look at Melgen and Menendez, those allegations do not form any part of the indictment. But by raising them again in an attempt to make Menendez appear to be a victim, the defense has brought those inflammatory charges back into the case and made them relevant. The prosecutors were forced to respond in order to defend themselves against the allegations of misconduct. Accordingly, in their papers they point out the seriousness of the allegations, that they had a duty to investigate them, and that in fact those allegations “were not so easily disprovable and had some corroboration.”

There’s really no legal basis to dismiss an otherwise valid indictment based on concerns about how the investigation first began. As New Jersey columnist Paul Mulshine has pointed out, by attempting to paint himself as a victim Menendez likely has succeeded only in bringing the allegations about underage prostitutes back into the public eye and lending them additional credence. Of course, having brought them back to light, Menendez will no doubt try to use those same allegations to claim later that an impartial trial jury cannot be found, if the case ever gets to that point.

Prosecutorial Misconduct

As noted above, the defense claims of prosecutorial and investigator misconduct are many and varied. Some of the charges of “misconduct” are a little hard to take seriously. For example, the defense protests that agents interviewed Menendez’s ex-wife while she was still in her pajamas. In response, prosecutors point out that the agents showed up and knocked on her door at the very reasonable hour of 9 a.m. on a Wednesday, and they can hardly be blamed for the fact that she was indeed still in her pajamas at that hour.

The defense also professes outrage that agents interviewed Menendez’s seventy-year old sister, underlining her age in their pleading as though to suggest it is by definition abusive to interview someone so old and frail. Given the age of many United States Senators, one has to wonder what Menendez’s colleagues would think of this claim.

The prosecutors appear to have solid responses to all of Menendez’s arguments about misconduct.  The claims appear to be based on mischaracterizations of the investigation and evidence or misstatements of the law. The defense would like the public and the judge to think this is another Ted Stevens case, but the allegations of misconduct in this case are not likely to go anywhere.

I’m still expecting the government to make Melgen an offer he can’t refuse in exchange for rolling over on Menendez. In the meantime, the motions hearing is set for September 17. There should be plenty of fireworks.

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