Gov't Prosecutors Taking 'Mulligans'?

john lee malvo mug 1997 school picture
Attorney Andrew Cohen analyzes legal issues for

When it comes to the criminal justice system, the government these days reminds me of the golfer who cheats on the back nine even though he is well ahead in the score. Never before in our recent history have police and prosecutors enjoyed the substantive and procedural advantages they enjoy when it comes to criminal law. And yet over and over again the law enforcement community seems willing to violate the spirit, if not the letter of that law. Like the golfer who takes a mulligan when he surely doesn't need one, you get the sense that federal and state officials just can't help themselves.

On Monday and Tuesday this week it became clear that the government cheated in the case of Lee Boyd Malvo, the young sniper suspect. It cheated by failing to inform his Maryland attorneys last November, even as a courtesy, that it was voluntarily dismissing the federal charges against him in Baltimore. It cheated by failing to permit those attorneys, and others defense types, from gaining access to Malvo while he was being held in Alexandria, Virginia, and then while he was being questioned in Fairfax, Virginia. And it cheated by stonewalling Malvo's guardian, who was desperately trying to reach his ward at the very moment the interrogation of Malvo was taking place.

It's likely that the courts ultimately will rule that these transgressions did not cumulatively rise to the level of a violation of Malvo's constitutional rights warranting the suppression of the incriminating statements he apparently made to investigators. But that doesn't make those transgressions appropriate. In a case where the government already has every conceivable advantage -- physical evidence, favorable legal precedent, a jury pool furious at the suspect even before trial -- it says a lot about the scorched-earth mindset of officials that they would find it necessary and advisable to overreach the way they did in that case. If they are willing to force the issue in a slam-dunk case like Malvo's, what should we expect of them in a closer case, when perhaps all of the institutional advantages do not inure to their benefit?

Well, we have a hint into that answer, too. On Wednesday this week, we learned that the government cheated in yet another way in the case of Timothy McVeigh, the Oklahoma City bomber. The Associated Press reported that the Justice Department in June 2001 ignored a letter sent by "lawyers for FBI laboratory employees" who warned that a crucial prosecution witness during McVeigh's 1997 trial might have given false testimony. The letter was sent 10 days before McVeigh was executed -- at a time when the federal courts were intensely scrutinizing whether other potentially relevant material had been withheld from the defense. But if anyone at Justice read it before McVeigh's demise they aren't saying. The letter only surfaced, we are told, months after McVeigh was dead.

The Justice Department now says that the concerns raised in the June letter would not have affected the outcome of the case. Perhaps that's true. After all, McVeigh was as guilty as they come. But that fact is not a justification for failing to abide by the rules of discovery, with all of its constitutional dimensions, as well as specific court orders that were in effect at that crucial time in the case. You would have thought in the McVeigh case above all others -- and especially after the controversy over the late-discovered evidence that spring -- that the feds would have bent over backward to erase any doubt that McVeigh was rushed to the injection chamber. But if you thought this, you would have been wrong.

Then, according to the New York Times, on Thursday this week we learned that the White House tried to sneak into an intelligence bill a proposal that would have given the Central Intelligence Agency and the Pentagon extraordinary powers to "demand personal and financial records" on U.S. residents. In other words, after being granted extraordinary new powers in late 2001 via the U.S. Patriot Act, and after receiving but a handful of limiting rulings from federal judges around the country, the executive branch feels it necessary now to push for even more governmental powers at the expense of individual rights. Nothing necessarily wrong with that, I suppose, except that the proposal apparently came as a shock even to Democrats on the Senate Intelligence Committee, who hadn't been forewarned about it.

Is this a trend or just a bad week for fundamental fairness? I don't know. But I can offer a possible explanation: police and prosecutors feel bulletproof these days, like they are in a no-lose situation that just begs for over-aggressive assessment and enforcement of laws. Post-9/11 juries are interested in punishment and not the rights of defendants. Judges, meanwhile, appear mortifyingly fearful of saying "no" to any governmental request, no matter how far it is from what might have passed for reasonable before September 11, 2001. So the envelope gets pushed further and further and more and more power is ceded explicitly or implicitly to law enforcement.

The rules of the game have changed in every conceivable way in favor of the government since 9/11. And even those broad new rules haven't been enough for some in the law enforcement community. So perhaps it's time for a new paradigm, or at least a new deal, between government and the governed. If prosecutors and the police are going to get these awesome new powers, the least they can do is to not bend the rules, not even a little. Because every time they do, whether it's considered a legal technicality or not, it makes you wonder where it's all going to stop -- and what the Constitution
By Andrew Cohen

  • David Hancock

    David Hancock is a home page editor for