FROM MOUNTAIN MEDIA
FOR IMMEDIATE RELEASE DATED OCT. 19, 1997
It's just a single paragraph, quietly slipped into the $31 billion bill that will fund the Department of Justice. But it's caused enough concern among federal prosecutors that Attorney General Janet Reno has urged President Clinton to veto the measure if it reaches him in its current form.
What's the fuss all about? By an overwhelming vote of 340 to 84, the House of Representatives recently adopted a one-paragraph amendment proposed by Rep. Henry Hyde, R-Ill., requiring the Justice Department to pay the legal fees of most criminal defendants who are acquitted at trial.
Today, federal prosecutors win 95 percent of the estimated 4,000 cases that go to trial every year -- and those are only the tiny slice remaining after the vast majority of defendants "cop a plea."
Yet the pro-government extremists have already commenced to whimper and moan.
Prosecutors might start to steer clear of complex, hard-to-prove white collar crimes, objected John Barnett, a law professor at St. John's University in New York.
The Justice Department complains the provision might also discourage prosecutors from bringing cases that rely on witnesses with questionable credibility, such as drug cases that rely on the testimony of lower-level drug defendants.
But the most serious -- and interesting -- objection is that, given even one ray of hope that presenting a defense might not land them in bankruptcy (win or lose), many more defendants might forego that plea bargain, and instead insist on their constitutional right to a jury trial.
Now, wouldn't that be just too bad?
Take the case of Russian emigre Sam Zhadanov, of Brooklyn, N.Y.
The 71-year-old plastics manufacturer, who no one contends ever saw or sold a single gram of cocaine, is now serving five years in a federal penitentiary on charges of "conspiracy to transport" literally tons of the prohibited plant extract, despite a lawyer's written advice that (under previous court rulings) Mr. Zhadanov could not be held responsible for anyone later re-using for drug storage any of the small plastic vials which were among the items he had contracted to manufacture.
After all, if such were the case, the manufacturers of our various brands of plastic sandwich bags would be in a world of hurt.
But it made no difference what the courts had ruled. Federal drug police arrested Zhadanov anyway, seizing (before trial) his $700,000 factory and his $800,000 life savings out of the safe in his Brooklyn apartment. (Russian emigres habitually distrust banks, yet Zhadanov's possession of his life's savings in cash was actually considered evidence that he fit the government's "drug dealer profile.")
With no assets left to fund a defense, and facing the prospect his 58-year-old wife Anna might have to go on charity while he was in prison, Sam Zhadanov followed the advice of his defense attorney -- who had been until four months previous a federal prosecutor -- and pled guilty, in exchange for a government promise that half the value of his seized factory would be returned to his wife, for her support while he served his time.
Then, the IRS seized that second half of that money anyway, arguing the deal struck by prosecutors was not binding on them.
Or take the case of Dr. Dietrich Stoermer of Las Vegas, a general practitioner specializing in treatment of chronic pain, who sacrificed his own health and fortune in winning a unanimous jury acquittal on charges of writing "too many" pain reliever prescriptions in 1994.
After he was acquitted, the DEA took away Dr. Stoermer's right to issue prescriptions, anyway, claiming they had a "different standard of evidence" than that used by juries. His attorney told Dr. Stoermer he could probably get the permit back for $30,000 in cash, but his "victory" at trial had bankrupted Dr. Stoermer, who instead decamped to Australia.
Is this what we now mean by American "justice"?
Would the public safety really have suffered if -- given the prospect that the government must pay his legal fees upon acquittal -- another attorney had proved willing to defend Sam Zhadanov at trial? Or had government agents realized they could actually lose money by persecuting Dr. Stoermer?
Mr. Hyde's amendment does not affect prosecutions in state courts, where most of the real violent felons are. And it allows the trial judge to waive government reimbursement if "special circumstances" make such an award "unjust."
That safeguard is not only adequate; it's probably excessive.
Our justice system is not working properly, if arguably innocent defendants feel forced into pleading guilty -- even to "lesser charges" -- by the dual threats of economic ruin and the bartered testimony of felons.
If Mr. Hyde's reform forces federal prosecutors to pick and choose their cases more carefully ... it's about time.
Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. The column is syndicated in the United States and Canada via Mountain Media Syndications, P.O. Box 4422, Las Vegas Nev. 89127.
-- Samuel Adams