they lost sight of this basic principle. Their decision to go after Kipnis’s assets in a forfeiture hearing exposed the prosecutors’ heavy-handedness.
Prosecutors are vested with remarkable power in America and it is exemplified by their control over the information provided to the defence. There is a significant risk that prosecutors are withholding relevant evidence. A featured USA TODAY investigation identified 201 cases since 1997 in which federal judges overturned convictions or faulted federal prosecutors, “the nation’s most elite and powerful law enforcement officials,” for misconduct. The failure to turn over evidence favourable to defendants represented the most common problem among those cases.[20]
The United States federal system gives prosecutors the power to hold back the statements of witnesses until their evidence-in-chief is completed. Ellen Yaroshefsky, the head of Cardozo Law School’s Jacob Burns Ethics Center, described the discovery process as playing a high-stakes poker game where the prosecutor, with remarkable power, possesses all the cards and the defence is left guessing. The failure to turn over evidence is a serious issue in documented wrongful conviction cases, although a comprehensive study of the problem can’t be conducted because 95 percent of defendants plead guilty. The Justice Department, Yaroshefsky noted, very strongly opposes open-file discovery, a process where prosecutors disclose all of the material gathered during an investigation.
One senior prosecutor offered the following justification for resisting open-file discovery: “I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided.” The statement was made at a hearing before a federal judge in Virginia who threw out a murder conviction and death sentence as a result of prosecutorial misconduct that included withholding tapes of critical government witness interviews from the defence.[21]
The restrictive scope of discovery of the government’s case was only marginally modified in Conrad Black’s case. Ed Genson described situations in other cases where a judge would afford him five to ten minutes to read a witness’s statement before he had to embark on a cross-examination. At some point an unwritten rule developed that a minimum of thirty days notice would be provided. When Judge St. Eve extended the notice period to sixty days in the Black case, Eddie Greenspan, Black’s counsel from Toronto, noted with bewilderment that his American colleagues were thrilled. It was described as a “minor miracle.” He also confirmed that the statements, which were actual summaries prepared by an FBI agent, routinely arrived precisely as directed by the judge and never a day earlier.
Greenspan described the disclosure process in this fashion: “They throw every piece of paper at you. You receive millions of pieces of paper that aren’t collated or indexed. The disclosure can’t be presented in the Japanese language. That is what it seemed like. In Canada the Supreme Court of Canada set out a series of rational and highly principled rules surrounding disclosure in Stinchcombe.[22] They have absolutely no principles in the U.S.” According to Greenspan there were seven million pages of documents in the Black case, which were several million more than he managed to read personally. He added that during the trial, the prosecution kept turning over more discovery through their case-in-chief.
In Canada, witness statements that are actually statements of witnesses are routinely provided to the defence. Video or audio tapes of a material witness’s statement under oath and the original notes of the law enforcement officials involved with an investigation are basic components of the disclosure package that a Canadian prosecutor presents to the defence in a timely fashion. In America, such a practice would be construed as overly generous and a mistake. It would only provide a defendant in a criminal case with a level playing field. It is more laudable to corrupt the process than to promote its integrity. The overwhelming culture created in the American criminal justice system permits the prosecutors to punish defendants who exercise their right to go to trial and reward the legion of defendants who accept responsibility, plead guilty, and, most significantly, point fingers at others. Justice is effectively bartered in the prosecutor’s office, not fought for in the courtroom.[23] As one American defence attorney noted, “Practicing criminal law has become draining, dispiriting, and completely unsatisfying.”[24] In one case in Tampa, Florida, a lawyer bothered to have his fraudster client’s staggering sentence reduced to 835 years from 845 years with the tangible benefit of moving the sentence farther beyond the next millennium.[25]
The injustice begins with the manner in which indictments are instituted by grand juries under the federal system. Prosecutors decide what evidence will be submitted to a grand jury and are not obligated to inform the grand jurors about evidence of innocence. “The notion was that [grand juries] protects defendants-any defendants-against prosecutorial abuse is a fraud.”[26] The injustice is then compounded when the prosecutor packs the indictment with as many counts as possible. According to Ellen Podger, a law professor at Stetson University College of Law, “what may have once been a single white collar offence can become a multi-count indictment with charges of mail fraud, obstruction of justice, false statements and money laundering.”[27]
Several defence lawyers spoke to me about the built-in advantage that loading of counts in the indictment provides the government. Carmen Hernandez, a former president of the NACDL, emphasized that it is much more difficult to secure an acquittal with so many counts.[28] There is a psychological barrier for jurors to repeat a not-guilty verdict twenty times. This became a tangible hurdle for the defendants in the Black trial. Loading an indictment with a barrage of counts also serves the purpose of forcing guilty pleas.
The defendant who dares to accept the risk and conduct a trial is faced with the dismal prospect of a crushing sentence. Hernandez related to me the example of a defendant found guilty of distributing fifty grams of crack cocaine with a prior felony conviction for simple possession of marijuana. The sentence that would be imposed in such a case would be life imprisonment with no chance of parole. The defendant would die in prison.
Even an old trial warrior like Ed Genson felt trapped by the system’s plea inducement scheme. He shared with me a case that was scheduled for the following week. His client had been in a fight after being punched in the face. The client maintained that his assailant brandished a gun during the struggle. At that point he took out his own gun and shot his assailant once in the heart, instantly killed him. Genson had assessed his chances of winning the trial at about 80 percent. If his thirty-two-year-old client were convicted, he would serve a forty-five-year sentence of incarceration without a reduction of a single day. The prosecutor came with a generous offer that would leave his client serving about four and a half years in prison.
“What choice did my client really have?” he asked me. I had no suitable reply.
The sentencing guidelines that still retain a lot of force[29] were devised over twenty years ago, in theory to normalize the range of sentences imposed by judges and to infuse the process with some sense of due process. With hundreds of amendments added (almost invariably enhancements), the guidelines were used politically to increase sentences. The guidelines presently read like an elaborate tax code.
It is these sentencing guidelines that allowed the prosecutors in the Conrad Black trial to seek with straight faces a twenty-nine-month prison sentence for the star witness and co-operator David Radler, who pleaded guilty (premised on a fraud amount exceeding $30 million), and a dozen years for a minimal player like Mark Kipnis who dared to proceed to trial. The currency of co-operation in “the criminal justice flea market” has vitiated the very uniformity that the sentencing guidelines sought to achieve.
Why didn’t Mark Kipnis testify at his trial? Many, including Eddie Greenspan, believe that he should have. As Patricia Holmes explained to me, the decision began with an assessment of the risks involved under the guidelines that inhibit a defendant’s testimony. If Kipnis took the witness stand and was convicted, then it follows that he must have lied to the court during his testimony, and he would face a two-point enhancement of his sentence under the guidelines. Kipnis potentially would have faced three to five more years
