RUTHFULLY YOURS

We had to tell the judge.

It was the middle of our terrorism trial in 1995, and the Blind Sheikh’s lawyer was trying to elicit hearsay from a witness — some innocent-sounding remark the witness had heard the “emir of jihad” make. I bolted out of my seat to object. At the sidebar, I made the Evidence 101 point that if the Blind Sheikh wanted his words placed before the jury, he would need to take the stand and testify.

By then, it was obvious that he had no intention to do that. It would have meant submitting to cross-examination and being confronted with his decades of brazen jihadist rhetoric. So his lawyers fought hard to get the occasional benign statement admitted through more appealing witnesses. Ultimately we prevailed – Judge Michael Mukasey (yeah, that Michael Mukasey) ruled the testimony inadmissible.

Except . . . I was wrong. Well, truth be told, I still think I was right, but in our system, that wasn’t my call to make. When we went back to the office that night, one of my partners, Pat Fitzgerald (yeah, that Pat Fitzgerald), found a couple of cases in which the Second Circuit had theorized that this kind of “state of mind” hearsay was admissible. Once we determined there was no principled way we could distinguish our case, the next step was clear and inarguable: We had to tell the judge. First thing the next morning, we withdrew my errant objection. We showed Judge Mukasey the cases, he quite properly reversed his ruling, and the testimony was admitted into evidence.

I hadn’t thought about that story for years, probably because it was not very unusual. Okay, I hear you snickering: Andy made an argument that turned out to be wrong — nope, nothing unusual there! Fine, guilty as charged.

What I mean, though, is that our office (the U.S. attorney’s office for the Southern District of New York), like the Justice Department as a whole, was very self-conscious about its traditions and reputation for probity.

That was not because we were all upright, altruistic types — though I like to think most of us were. It had a lot to do with self-interest. Nothing damages a government lawyer’s reputation more than having a conviction in a big case reversed because of some prosecutorial error; and no error more invites reversal than depriving an accused of the constitutional right to present his defense.

Then there’s the big picture. See, there are a lot of judgment calls in litigation, which means there is no shortage of temptation to pull a fast one, since we always want to win the case at hand. But there are lots and lots of cases. When a prosecutor develops a reputation for trustworthiness in the courthouse, that helps on all the judgment calls in all the cases. In addition, when a judge clearly respects the prosecutor, that makes an impression on the jury. People fully expect defense lawyers to fight zealously for their clients; they expect prosecutors to fight fairly. It thus matters whether the sense conveyed by the judge is that the prosecutor is playing it straight or seems slippery. Plus, it is the law that the prosecutor must reveal arguably exculpatory evidence and must speak up when a legal error has been made, especially an error by the prosecutor. Most law-enforcement-oriented people grasp that enforcing the law includes doing so when the law cuts against you — which the criminal law tends to do against the government, thanks to the presumption of innocence and due-process rules that are a model for the world.

Most law-enforcement-oriented people grasp that enforcing the law includes doing so when the law cuts against you.

The memory of my old war story was jogged by our Kevin D. Williamson’s characteristically insightful column on Thursday about the criminal-justice system’s trust meltdown. He relates recent horror stories about prosecutorial falsification of forensic evidence, most notoriously a chemist in Massachusetts the detection of whose perfidies has caused a mind-blowing 21,587 drug convictions to be vacated.

Kevin’s central point is spot on: Something serious needs to be done about law-enforcement officials who pervert justice. It is long overdue, and not solely because of wrongfully convicted innocents who suffer stolen years and ruined lives. More numerous and more costly to society are wrongful convictions of the guilty.

Rest assured that they account for the overwhelming run of defendants whose convictions have been vacated. It’s a safe wager that most of them pled guilty, and that most of the corners cut by corrupt forensic investigators and prosecutors did not need cutting. But take this to the bank: These thousands of cases are not going to be reinstated. A large percentage of them are going to be dismissed — statute of limitations, staleness, evidence destroyed (as it routinely is after a guilty plea), the embarrassing prospect of corruption featuring prominently in new trials, etc. Felons who should be in jail will be back preying on their neighborhoods.

Worse, the misconduct will make justice harder to achieve in the future. Nothing makes the job of honorable law-enforcement officials more difficult than the cheaters. The latter may be a tiny portion, but they inevitably reflect on the whole. They cause courts and defense lawyers to assume that corruption has crept into investigative and prosecutorial practices heretofore assumed to be unimpeachable. Police and prosecutor’s offices will have to respond with new rules.

I’ve frequently argued over the years that a rogue will be a rogue no matter what the rules are. Our priority should not be heightened guidelines for everyone; it should be to purge the rogues. Heightened guidelines often just make things harder for law-abiding investigators, the people for whom we didn’t need to raise standards in the first place. When it becomes harder to enforce the law, some of the guilty ineluctably benefit — it being, after all, the conceit of our system that it is better for the guilty to go free than for the innocent to be railroaded. It is just a fact that whenever there is a reactive wave of anti-corruption rules, the principal beneficiaries are the bad guys. That is not a net positive.

All of that is troubling. But it is not, for me, the most alarming aspect of the outrage Kevin describes. That distinction goes to this problem: Why didn’t the system work?

The criminal-justice system is adversarial. It operates on the premise that weaknesses in the prosecution’s case will be discovered and exploited by competent counsel. The defense lawyer’s only loyalty is to the accused, and the sole duty we impose on the lawyer is not the usually impossible task of proving innocence; it is merely to put the government to its burden of proof — i.e., to test the evidence, ensure that it is what the prosecutor claims it is, probe it for any infirmities, exploit any doubt it raises. The government is not permitted to hide (much less tamper with) exculpatory evidence. As long as the government provides access to all relevant evidence, it is expected that competent defense counsel will find any irregularities.

So how come irregularities went unnoticed — not once or twice, but 21,587 times?

I can think of two reasons.

As long as the government provides access to all relevant evidence, it is expected that competent defense counsel will find any irregularities.

The first, a more positive spin, is that as a strategic matter, defense lawyers usually opt not to challenge forensic evidence, particularly in drug cases. In most narcotics prosecutions that go to trial, such evidence is presented by a brief stipulation, informing the jury of the parties’ agreement that, if called as a witness, a qualified chemist would testify that the substance is, say, cocaine hydrochloride. This is because exceedingly few drug-distribution allegations can be defeated by demonstrating that the substance at issue is not an illegal narcotic. It invariably is, and even if it is not — e.g., if the defendant seller was trying to stiff his buyer — it is often still possible to charge conspiracy or attempt to distribute, which carries the same penalty.

There being little upside in challenging the scientific analysis of the alleged drugs, a good defense lawyer will want to focus on whatever the real theory of the defense is: mistaken identity, key witness is lying, lack of intent, etc. The last thing the lawyer wants is for the prosecutor to put a chemist on the witness stand to recite bulletproof testimony that the substance was thoroughly tested, was found to be cocaine, could be diluted into thousands of street-level doses, is highly addictive, is often cut with dangerous additives that can cause major health problems, etc. Generally, such expert testimony cannot be impeached, so it makes the government’s case seem very strong. Tactically: Better a terse stipulation that can be read to the jury in less than a minute and won’t make much of an impression.

The second reason, a much more disturbing one, is that criminal trial lawyers tend not to be adept in evaluating scientific evidence.

Prosecutors can get competent, especially on things like drug and ballistics testing, by handling lots of cases. Even then, though, they tend to rely on the expertise of technicians who have been working for the government for years and are far better versed than the government lawyers. And because the defense tends not to challenge laboratory analyses, there are few cases in which prosecutors need to study and defend them. There is little incentive to get up to speed, even though it is the prosecutor’s job to ensure that the evidence is what it is purported to be.

As for defense lawyers, the understandable desire to underplay forensic drug evidence during trial is not a good excuse for failing to examine it carefully pre-trial. The vast majority of cases are resolved by plea, so trial strategy is beside the point. In the pre-trial phase, the defense has the ability to seek its own testing and then decide, based on the results, whether to go to trial and what lines of defense to pursue. There is no downside to being thorough.

Clearly, defense lawyers have been relying on — i.e., they have assumed — the veracity of the prosecution’s scientific testing. I believe this is because they are less confident in their competence to analyze and challenge it. Should we be more understanding of this lapse because agents of the prosecution apparently doctored reports to make them look authentic? Sure, to a degree. But if it had been a matter of government tampering with something other than scientific evidence — e.g., doctoring checks or bank records in a financial-fraud case — I’m betting a competent defense lawyer would discover the tampering at least 90 percent of the time.

Don’t misunderstand me. I am not blaming defense lawyers for government corruption; the culpable government officials alone are responsible. My point is that the corruption Kevin describes happened, and went undetected for a long time on a massive scale, because the adversarial system on which we rely in the search for truth broke down. The mechanisms for discovering wrongdoing and holding wrongdoers accountable did not work. When the system breaks down, there is no accountability — an invitation to corruption.

It is another iteration of the budding crisis we addressed last weekend: The inability to trust the government. The question last week government was whether we can safely trust the government to wield its awesome intelligence-collection powers only for proper national-security purposes, not corrupt political purposes. Intelligence derelictions can go undetected and unaddressed because the evidence is classified and information-gathering is highly technical. In its way, it is like scientific evidence: a specialized area, not easily dissected by our usual truth-seeking processes. It is difficult to discern wrongdoing, let alone to purge the wrongdoers.

As I contended in last weekend’s column, “No one gets fired anymore, let alone impeached.” That’s a huge problem. It is not possible to have the rule of law unless those charged with executing the laws are held accountable when they are derelict. And it is not possible to have accountability when the processes for discovering derelictions do not work.

Those processes have to be mended. It is beyond time to reinvigorate the principle that law enforcement’s first priority is to do justice. Not only must government officials follow the rules; their adherence must be monitored — not to harass the law-abiding but to root out the corrupt. Examples must be made of those who abuse their powers. It is not sufficient that the system achieves justice most of the time. The rule of law depends on our belief that it aspires to justice all of the time.

— Andrew C. McCarthy is a senior policy fellow at National Review Institute and a contributing editor of National Review