federal Prosecutors Gone Wild?

August 25, 2010

Thursday, August 26th, 2010

Baton Rouge, Louisiana



The score right now stands at former Illinois Governor Rod Blagojevich 23, federal prosecutors 1. The feds charged Blagojevich with everything but the kitchen sink, including shaking down a children’s hospital and selling the U.S. Senate seat formerly held by President Obama. With twenty-four felony counts against him, and after all the melodrama and hype by the prosecutors, he was convicted of the least serious change, and that could well be thrown out on appeal. So what do we have here — prosecutors gone wild?

A number of newspapers are sharply criticizing lead prosecutor Patrick Fitzgerald, editorializing that this grandstanding justice department lawyer was on a personal vendetta to bolster his own overblown ego.  From day one, Fitzgerald has been “over the top” with his prejudicial pubic statements about the case.

When Blagojevich was first charged, Fitzgerald arranged to have the sitting governor arrested before dawn, like some thug accused of violent crimes, ready to blow town at a moment’s notice.  At his grandstanding press conference, the U.S. Attorney spoke of “what we can only describe as a political corruption crime spree,” accusing Blagojevich “of the most appalling conduct” that would have “Lincoln rollover in his grave… It was a truly new low,” Fitzgerald told the nation.

Blagojevich’s single conviction was based on a statement that he made to the FBI about everyone who contributed to him, and how much was given.  Blagojevich said he tried “to keep a firewall between politics and government.”  Basically, he gave a stock denial to any crime.  So federal agents asked him if he broke the law — and just like any child who is caught with his hand in the cookie jar, he said “no.”  By saying ” I’m innocent; I didn’t do it,” an accused becomes guilty of making a false statement.  What happened to one’s Fifth Amendment right to protest one’s innocence?

You could do so in good faith before Supreme Court Justice Scalia took dead aim at the issue. He challenged a defendant’s right to declare that the charges are false, which most assumed was a basic presumption under the constitution.  Before 1998, saying “I didn’t do it” was a denial under the Fifth Amendment that prohibited prosecutors from piling on charge after change of false statements, regardless of whether a crime even took place. Then Scalia turned loose in the case of Brogan v. United States, tongue lashing the defendant’s attorney by saying in effect: “Either answer the FBI agent’s question or say absolutely nothing.”

So now, without the “exculpatory no,” prosecutors routinely pile on charges that, in effect, add five years to every sentence.  Simply by saying “no” to the question of whether you did it can send you to jail even if it is proven that you are innocent of the crimes themselves.  Sounds absurd?  It happens all the time. So without Scalia’s decision in the Brogan case, the Governor would not have been convicted of the one false statement charge.

Respected New Orleans columnist and television commenter Clancy Dubois summed up one’s option this way.  “If you are a public official in Louisiana, do not talk to the FBI.  Not under any circumstances.  Not even if you are innocent and have nothing to hide.  Especially if you are innocent and have nothing to hide.”  Many share his conclusion.  Being innocent is irrelevant when answering questions from the FBI. Simply being questioned by the FBI puts the suspect or even THE INNOCENT WITNESS IN PERIL. Even if you know nothing of, never heard of the ALLEGED CRIME, and honestly tell them so, the FBI can say you are lying, and you can get sent jail — and the citizen has no recourse!

Let’s be clear. Governor Blagojevich is far from being a saintly victim of a prosecutor’s wrath.  In my opinion, Blagojevich is an egotistical, narcissistic, blowhard who doesn’t know how to keep his mouth shut.  The day after his one count conviction, Blagojevich compared himself to a superhero at the Chicago Comic Book Convention, and sold his autograph and photo for $80.

 The guy has no shame. And he shoots his mouth off a lot, lacing his private conversations with numerous expletives.  He is certainly not alone among politicians in being profane. But nothing specific was laid out, no bribe offers, no plans; the guy was simply talking.  Is there a crime here?  Even so, is it a federal crime?  If being a blowhard politician who exaggerates, and make false promises is a crime, we’d better loosen parole requirements and let thousands of convicts go free to empty up cell space to accommodate blowhards. Hmm, should that include blowhard Fitzgerald?

As the federal government continues its propensity to make any number of acts on the local level federal crimes, it diminishes its role as a model of fairness and justice. In this sense, it has become a travesty of the principles on which this country was founded.

More specifically, blowhard Fitzgerald’s self-serving shoot first and think later tactics have diminished his effectiveness at serving the people, which, of course, is what he took an oath to do.

Does he retry Blagojevich?  A number of national newspapers are saying no.  The Washington Post editorialized:  “Fitzgerald brought unlimited resources and the power of the federal government to the case.  He is entitled to drag the ex-governor back into court.  But the prosecutor took his shot and lost.  He should stand down before crossing another fine line — the one that separates prosecution from persecution.”

The Wall Street Journal went even farther calling for Fitzgerald to be fired. “Fitzgerald is a willful prosecutor who throws an exaggerated book at unpopular defendants and hopes at least one of the charges will stick, even as he flouts due process and the presumption of innocence when the political winds are high.   If Mr.
Fitzgerald doesn’t resign of his own accord, the Justice Department should remove him — especially after such other recent examples of prosecutorial bad faith.”

Fitzgerald purposely violated prosecutorial ethics by making inflammatory statements, and by selectively releasing material that made Blagojevich look bad without presenting the whole picture. Just as Michael Nifong, the infamous prosecutor in the Duke Lacrosse Case was disbarred by the North Carolina State Bar because of his inflammatory remarks, Fitzgerald’s actions, and those of his Chicago staff should face the same scrutiny and the same possible sanctions.

The former Illinois governor is far from being a sympatric figure or one who engenders much public compassion.  But perhaps the verdict in his case is a sign that jurors, for good reason, are becoming more willing and able to distinguish unbecoming and even venal politics from official corruption, fraud and obstruction. And here’s the good news.  We are guaranteed at least another year of Blagojevich-o-rama. We get the hair, the goofy Elvis imitation, the defiance, the whole shebang.  If the sequel is as dramatic as the original, I can hardly wait.


Therein is the most dangerous power of the prosecutor; that he will pick people that he thinks he should get, rather than cases that need to be prosecuted.”   Justice Robert Jackson

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers and websites throughout the South.  You can read all is past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com. The show is televised at http://www.justin.tv/jimbrownusa.



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