Presumed Guilty

Prosecutors are resorting to questionable tactics to convict more white-collar and drug defendants. Some of these tactics will make it more difficult for innocent people, caught for whatever reason in the criminal justice system machinery, to exonerate themselves.

Once someone is charged with selling narcotics, for example, prosecutors can seize any of the suspect's assets that might represent proceeds of the drug sales. This usually happens prior to trial, before the person has been convicted of anything. Often all of the suspect's assets are frozen, so that he or she has nothing left to hire an attorney. The U.S. Supreme Court will soon rule on whether such forfeitures deprive defendants of their constitutional right to counsel.

Prosecutors point out that the state will hire a lawyer for any defendant who cannot afford one; the Constitution promises only counsel, not counsel of choice. But William J. Genego, professor at the University of Southern California Law Center, says recent federal crime statutes aimed at white-collar and drug criminals are "extraordinarily complex." Most public defenders, says Genego, are too inexperienced and overburdened with work to effectively defend such cases.

Prosecutors need not actually exercise the forfeiture power to take advantage of it. The threat that they might use it is a "tremendous coercive tool" and leads some lawyers to turn down potential clients, reports Genego. In some cases prosecutors propose a rather shady deal: they promise not to pursue forfeiture of attorney fees only if the client will plead guilty.

When they can't keep an accused person from hiring an attorney, some prosecutors use other tactics to keep effective defense lawyers off the case. For instance, they can force an attorney to testify before a grand jury about his or her relationships with the person under investigation. Then if the grand jury hands down an indictment, the lawyer might have to refuse to represent this client, on ethical grounds. If not, the prosecutor hopes that the client will lose trust in the attorney anyway and hire someone else.

The Bail Reform Act of 1984 also hinders a successful defense by making it easier to hold suspects in jail prior to trial. This practice prevents accused persons from freely talking with their attorneys, locating friendly witnesses, and otherwise assembling the necessary information to prove their case. And as a result of the new drug law, prosecutors can seek fines and other sanctions in civil court. This means accused persons no longer will be protected by all of the procedural safeguards established for criminal trials.

Last August, the Criminal Justice Section of the American Bar Association held a meeting to discuss some of these underhanded devices. With diplomatic understatement, the committee chairperson suggested that prosecutors who use such tricks display "a derogation of the sense of respect for colleagues who are our adversaries." The loss of mutual respect among criminal lawyers might be lamentable, but it probably is not the primary concern of innocent people sentenced to prison because they could not get adequate legal counsel.