No Comment — September 29, 2010, 12:53 pm

Misconduct at DOJ: Who Pays the Bill?

USA Today continues its study of abusive federal prosecutions, reporting on the efforts of victims to recover their legal costs by relying on the Hyde Amendment, which “was intended to deter misconduct and compensate people who are harmed when federal prosecutors cross the line.” It finds that through aggressive lawyering, the DOJ has effectively gutted the Hyde Amendment and frustrated its aim of ensuring that the government bears the economic burden when prosecutors misbehave.

Colonel Robert Morris, for example, was prosecuted for “conspiring to steal military supplies” on facts so absurd that the judge warned the prosecutors to drop the case. Although often enough juries convict in bogus cases, Morris was lucky: a jury acquitted him in 45 minutes. “By then, though, his career had derailed. His parents had mortgaged their home to help with $250,000 in legal bills. He had drained his own savings.” Henry Hyde’s amendment was intended to assure that people like Colonel Morris would get their costs back. But the Justice Department mobilized its battalions of attorneys to subvert the law and protect itself. It refused to pay a cent.

The courts, filled with Justice Department alumni, have lent the Department a helping hand in this process, imposing hurdles that can’t be found anywhere in the text of the Hyde Amendment. Typical is the Eleventh Circuit, which has held that only a plaintiff who can show the prosecutor’s “state of mind [was] affirmatively operating with furtive design or ill will” can obtain recovery. But since everything the prosecutor does is shielded by prosecutorial immunity, this burden is all but impossible to meet. Even in rare cases like Axion, discussed here, where the claimants had copious evidence of bad-faith and invidious if not racist motivation, the Eleventh Circuit found the burden was unmet. (In that case the evidence implicating the Department in unethical and abusive conduct was so strong and embarrassing that the Department was shamed into paying up anyway.)

The Justice Department’s successful subversion of the Hyde Amendment demonstrates its lack of accountability within the federal criminal justice system. One of the more interesting passages in the article is this:

Michael Zomber already had served his two-year sentence when prosecutors agreed to throw out his conviction stemming from a 2003 conspiracy indictment. There was just one catch: He had to give up his right to seek government repayment of his $1 million legal bills. Before agreeing to a dismissal, federal prosecutors used Zomber’s right to seek government repayment as a bargaining chip. A federal jury in Pennsylvania had convicted Zomber of conspiracy to commit mail and wire fraud for the sale of four antique Colt pistols to businessman Joseph Murphy. Prosecutors said the weapons were worth half of what Murphy paid for them, and that Zomber lied to increase the price. Zomber, now 60, spent almost two years in a federal prison camp before the U.S. Court of Appeals for the 3rd Circuit threw out his conviction. It found that the prosecutor, Robert Goldman, had failed to give Zomber’s defense the letters Murphy wrote to Microsoft Chairman Bill Gates offering to resell the pistols “at cost”—the same price Murphy paid. Goldman said he did nothing wrong and warned USA TODAY that he would have any article about Zomber’s case “reviewed by counsel for potential litigation.”

A federal prosecutor is threatening to sue USA Today for having the audacity to report about a case he mishandled—and in which, as usual, his victim was uncompensated and forced to serve jail time on a meritless claim. This sums up the Department’s current posture very ably: we make no mistakes, and if you suggest otherwise, we may have to sue you.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

May 2016

Fighting Chance

= Subscribers only.
Sign in here.
Subscribe here.

Front Runner

= Subscribers only.
Sign in here.
Subscribe here.

The Habits of Highly Cynical People

= Subscribers only.
Sign in here.
Subscribe here.

Unhackable

= Subscribers only.
Sign in here.
Subscribe here.

American Imperium

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Elisabeth Zerofsky on Marine Le Pen, Paul Wachter on the quest for an unhackable email, Rebecca Solnit on cynical people, Andrew J. Bacevich on truth and fiction in the age of war, Samuel James photographs E.P.L. soccer, a story by Vince Passaro, and more

I sat in a taxi with Emma and her son, Stak, all three bodies muscled into the rear seat, and the boy checked the driver’s I.D. and immediately began to speak to the man in an unrecognizable language.

I conferred quietly with Emma, who said he was studying Pashto, privately, in his spare time. Afghani, she said, to enlighten me further.

Illustration by Taylor Callery
Article
Front Runner·

= Subscribers only.
Sign in here.
Subscribe here.

"The F.N. asked to be sent to an institution whose legitimacy it did not accept, and French voters rewarded the party with first place in the election."
Illustration (detail) by Matthew Richardson
Memoir
I Am Your Conscious, I Am Love·

= Subscribers only.
Sign in here.
Subscribe here.

A paean 2 Prince
"And one thinks, Looking into Prince's eyes must be like looking at the world."
Photo ©© PeterTea
Article
Stop Hillary!·

= Subscribers only.
Sign in here.
Subscribe here.

"As wacky as it sometimes appears on the surface, American politics has an amazing stability and continuity about it."
Article
Plexiglass·

= Subscribers only.
Sign in here.
Subscribe here.

I sat in a taxi with Emma and her son, Stak, all three bodies muscled into the rear seat, and the boy checked the driver’s I.D. and immediately began to speak to the man in an unrecognizable language.

I conferred quietly with Emma, who said he was studying Pashto, privately, in his spare time. Afghani, she said, to enlighten me further.

Photograph (detail) by Karine Laval

Average number of pounds of pennies in an American home:

6

There were new reports of cannibalism in North Korea.

The Finnish postal service announced it will begin mowing lawns on Tuesdays.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today