HARVARD SQUARE COMMENTARY

April 16, 2007
From Liberty Street

The Hidden Issue

John Turner


I've suspected for some time that prosecutorial misconduct is one of the most serious problems facing us in this country. My concerns have been based, primarily, on the obvious truth that when people can use power with very little chance of being held accountable for how they use it, they will misbehave. It's the situation in which all prosecutors, and, in particular, U.S. Attorneys, operate. It doesn't matter how recklessly they throw people into jail; they face almost no danger of being put in jail themselves.

Think of it. These people can take away liberty, and in some cases, life, and when it's discovered that they did it wrongly, all that's said is, "Oops! Too bad."

In the past several months we've had two highly publicized instances of bizarre prosecutorial behavior, in which the motives for pursuing the suspects seem to have had nothing to do with enforcing the law. Yet the stories have tended to be reported on independently, and have seldom been linked by the underlying regulations that made them possible.

The better known case -- for the moment -- is, of course, Michael B. Nifong's legal assault on three lacrosse players from Duke. It's now clear that he had no evidence against these young men and had been informed that there were mountains of evidence to exonerate them. The latter he simply refused to look at. As North Carolina Attorney General Roy Cooper said on 60 Minutes, nobody knows for sure what Nifong's motives were. No, we don't know for sure. But we can have some fairly well-based suspicions. And they all point to personal ambition. None of them point to a desire to enforce the law.

A case that is now beginning to draw national attention has even more ominous implications than the Nifong fiasco. It involves U.S. Attorney Steven Biskupic of Wisconsin, and his accusations against Georgia Thompson, a fifty-six year old Wisconsin state employee. Ms. Thompson was convicted of corruption in awarding a contract to a travel agency. She served four months in prison before recently being released by the Court of Appeals for the 7th U.S. Circuit, which was scathing in its comments about Biskupic's behavior. Judge Diane Wood told the prosecutor, "Your evidence is beyond thin."

The sad truth seems to be that the evidence was so thin it didn't exist. As far as objective reporters can determine, Ms. Thompson never did anything other than her job. She headed a committee charged with selecting a travel agency for the state, and she recommended choosing the lowest bidder, a company named Adelman Travel. But when Mr. Biskupic found out that the owner of the company had made a campaign contribution to Democratic governor Jim Doyle, that was all he needed to begin his investigation. He got an indictment and somehow convinced a jury to convict Ms. Thompson.

The timing of Mr. Biskupic's actions in the case fit perfectly with the needs of the Republican candidate who was opposing Governor Doyle in the 2006 election. Ms. Thompson was convicted   in September and in the weeks left before the election the Republican campaign used her to insinuate high level corruption in the Doyle administration. By some accounts, the Thompson case became the Republicans' central issue in the late campaigning.

It was shown during the trial that Ms. Thompson did not know Adelman Travel had contributed to Doyle, that she had no close connections with the governor, and that she received no financial benefit from the contract. To get around the latter, which was a requirement for conviction, Biskupic argued that Mr. Thompson's job security had been strengthened by awarding the contract to a company favored by the governor.

The case raises all sorts of questions about the jury and its selection. When a jury convicts a seemingly responsible state official of corruption without any credible evidence, something disturbing is going on.  Juries are not supposed to be putty in the hands of public attorneys but rather independent, fair-minded appraisers of the evidence that's presented. Something went badly wrong in this trial and I hope an investigation can show what it was. Yet, the underlying issue remains. A U.S. Attorney brought charges that were not justified. Somebody needs to find out why.

Biskupic, of course, says that political motives had nothing to do with his actions. But many others are not so sure, and I count myself among them. Congress has asked the Justice Department to supply all e-mails connected to this prosecution and it will be interesting to see how readily Alberto Gonzales complies.

Even if it can be shown conclusively that Biskupic was not using his powers to advance a Republican political agenda (and that I have a hard time imagining), the possibility of government lawyers being driven by motives other than respect for the law remains. We're supposed to be a government of checks and balances, but there is no reasonable balance when it comes to public prosecutors. As the cases involving Nifong and Biskupic show conclusively, we need to start figuring out ways to achieve a fairer system.


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