The scary power of prosecutors

When I was chief economist at the U.S. Sentencing Commission I came across many prosecutors who scared me. You want people who are really motivated to get their job done, but these guys would frequently feel that everyone commits thousands of crimes and even though we only caught this person for one crime, we are really justified in throwing the book at this person. These guys have so much power. I never meet Giuliani, but he impressed as among the worst in the way that he went after Milken. Charging Milken with a hundred crimes, going after Milken's brother, and going after others to make Milken break, not because he really seemed to believe that these charges were justified. In the end, Milken went to jail for something that had only involved fines in the past. But Milken agreed to this to save his brother from Giuliani trying to destroy Milken's brother's life.

The trial of I. Lewis "Scooter" Libby is the closest version of a Red Queen trial this country has had in a long time. One says that knowing it might start a stampede from past defendants laying claim to the most upside-down prosecution.

Lewis G. Carroll's account of the Knave' s trial before the Red Queen and White Rabbit is famous for the Queen's dictum, "Sentence first, verdict afterward." But read the full transcript of the mock trial and one will see that the real subject is not justice, but the humiliation of the defendant.

The trial of Scooter Libby in Washington, the national capital of illogic, has been exemplary. In December 2003, the prosecutor purports a crime has been committed by revealing a "covert" CIA agent's identity to the press -- despite knowing then what the outside world learned nearly three years later -- that the revealer of the agent was a State Department official, Richard Armitage. With the "whodunnit" solved on day one, the prosecution follows the Red Queen's script by taking the nation on a useless, joyless ride through the opaque looking-glass of Washington journalism.

The testimony of three of the world's most sophisticated journalists -- Judith Miller, Matthew Cooper and Tim Russert -- was the trial's closest thing to the White Rabbit reading nonsense verse to the jury: "For this must ever be a secret, kept from all the rest, between yourself and me."

The Libby case went to the jury yesterday. After the verdict, all the characters in this satire on Beltway mores will go back to doing what they did before, except for one -- Scooter Libby.

If found guilty, Mr. Libby goes to prison. He is ruined. If acquitted, he loses only that which he built daily the past 35 years of private and public life -- his reputation. This, too, is ruin.

Purified justice notwithstanding, something here has gone "horribly wrong."

As is increasingly true of politics, American justice today has come to look more like mortal combat, the videogame. Notions of proportionality have eroded. Crimes that are minor crimes, civil offenses or mere hardball politics like the Plame case must be elevated to a capital offense. Eliot Spitzer's pursuit of AIG founder Hank Greenberg rose to a bonfire of never-proven criminal charges that put the torch to the company and Mr. Greenberg before burning down to its current ash of alleged civil offenses against him.

Under the constant stare of the media Cyclops, prosecutors can't back down and justice in 21st-century America degrades to swamp justice. Exhibit A: the Duke lacrosse-team prosecution. Judge Lewis Kaplan, in the federal government's recent KPMG prosecution, sat in appalled disbelief as federal prosecutors attempted to reduce 18 defendants to rubble. . . .



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