James K. Robinson

Every young lawyer remembers the guy who gave him his first real job. For me and some others, it was a mark of distinction that that guy was Jim Robinson.

His death last Friday from cancer evokes a painful loss but also many happy memories about a man who was one of the finest lawyers of his generation.

Although Jim’s long and successful career as a litigator, public servant, author and teacher included many of the highest achievements available in the legal profession, it was for many of us his term as a 34-year-old U.S. Attorney in Detroit which we remember most fondly.

During his three-year term from 1977 to 1980, he set a framework for the modern federal prosecutor’s office and inspired dozens of young lawyers along the way.

Jim re-organized and modernized the U.S. Attorney’s Office in ways that are still followed today in this and other districts around the country.

He convinced the Justice Department to let him hire several dozen new lawyers and support staff, and he filled the positions with a diverse group, including women, African Americans and former defense counsel, three groups which had been greatly under-represented.

He re-structured the office into Divisions and Units, re-formulated a press policy, established a pre-trial diversion program, and emphasized the need for continuing legal education.

He started a Federal-State Law Enforcement Committee, which still meets regularly thirty years later, to discuss common strategies and crime problems.

He re-defined the office’s prosecution policy and shifted from a volume approach to a selective policy of investing more resources in more culpable and insulated targets.

Jim also put more emphasis on civil enforcement, especially natural resources, tort defense, civil rights and combating fraud in federal programs. It was a sea change for the better.

Jim emphasized integrity at every functioning level. I remember a short interchange at one of those “Monday lunch” sessions he initiated, and it has stuck these thirty years.

Some of the Assistants were complaining about an instruction some of the district judges were then giving to trial jurors that they need not be concerned in reaching their verdict about whether the government wins or loses the case since the government always wins as long as justice is done.

Jim settled the matter, “Hey that is what we do, or try our best to do, what is right in every decision in every case, whatever our personal preferences. It’s not a contest and winning isn’t the objective.”

As a boss, Jim was a master of the personal touch not only because it was good management, but more because that was the kind of person he was. When a trial or appeal went well, you could expect him to stick his head in your door with some thumbs-up words of encouragement or to leave an “attaboy” note on your desk. I still have a couple of them.

When a forgivable error was made, Jim considered it a lesson learned, and I heard him quote more than once the words of W. Somerset Maugham, “Only a mediocre person is always at his best.”

I have found it useful after my kids’ sporting events. A loss after a hard fought effort by a disconsolate Assistant sometimes brought out Jim’s quotation of John Kennedy and Teddy Roosevelt about the credit belonging to the person in the arena, marred by dust and sweat and blood, who if he fails, at least fails while daring greatly not sitting with those cold and timid souls on the sidelines.

Boredom and cynicism had no place when Jim was around. Instead there was laughter, hard work and long hours. Work was meant to be fun, but no one ever said it was meant to be easy.

Above all there was an unspoken sense of job satisfaction, patriotism, and fulfillment in public service. Important principles, people’s lives and freedoms, and crucial decisions were on the daily agenda. But that didn’t prevent a practical joke on a colleague, and Jim was sometimes a facilitator.

After his tour as U.S. Attorney, Jim went on as a nationally known litigator and a sought after lecturer for advocacy programs.

He supervised the Justice Department’s Criminal Division under President Clinton in 1998. He was a law school Dean and professor, President of the Michigan Bar, drafter of the Michigan Rules of Evidence and prolific author of books and articles. The list of his positive contributions to the rule of law in Michigan and the country goes on and on.

But it is not this towering man of national achievement and recognition I remember most fondly.

It was a teacher who spent a couple hours explaining and working through some knotty hearsay exceptions with a panicking young prosecutor the night before a trial was to begin.

It was a charismatic young U. S. Attorney who managed with his sleeves rolled up, walking around implementing new plans and ideas, spreading confidence and energy to all of his colleagues.

“The Secrets of Abu Ghraib Revealed—American Soldiers on Trial” by Christopher Graveline and Michael Clemens. The book is available at Amazon.com, barnesandnoble.com and Borders books.

An acquaintance from another country recently posed a question to me: How is it that such an idealistic country as America, whose people are willing to sacrifice so much, is so mistrusted and vilified around the world? We contribute nearly a trillion dollars a year, more than ten times the amount of any other country, as well as the lives of thousands of our best and brightest to attempt to keep world peace. But in the international press and the streets of the Middle East we are, increasingly, the Great Satan.

Historians for my children’s children may be able to explain this complex irony. Hopefully, one of the texts they will study is The Secrets of Abu Ghraib Revealed by Christopher Graveline and Michael Clemens. The book presents a day-by-day factual account of one of the scandals of the Iraq War, one which scarred the image of America in a part of the world where we can ill afford such ignominy.

Graveline, an assistant U.S. Attorney in Detroit, who was a JAG prosecutor, and Clemens, a federal agent in Milwaukee, who was an Army investigator, were intimately involved in the eleven successful prosecutions of the military personnel who abused Iraqi detainees at the Baghdad prison in November and December of 2003. The authors present the facts with such detail and objectivity that readers can come to their own conclusions about the questions of cause, blame and responsibility.

In addition to using impeccable scholarship, the book explores the human dimensions of the tragedy and presents the reader with a fascinating and dramatic description of the people and scenes involved.

The heat, dust and danger of Baghdad, as well as the drama of the courtroom, are alive in its pages to keep the reader as engrossed as any good summer beach-read. Beyond the enjoyment of the read, the book presents a study of the rule of law and the rules of war, for generals and taxpayers, Presidents and policymakers, about the complexities of investing young American lives in trouble spots around the world. Its drama and message will appeal to a broad spectrum of readers.

Christopher Graveline/potomac books

Although the authors refrain from imposing their personal opinions, the work provides important lessons for future statesmen on subjects such as interrogation policy, training and supervision of young soldiers, and the need for clear guidelines.

As seems to be so frequently the case, an event of such transformative historical significance influencing relations between countries and affecting lives put on the line has largely been based on misinformation and misinterpretation. Thanks to media accounts and political debates, like most Americans I thought the Abu Ghraib abuses were connected with White House and Pentagon policy on loosening the limits or coercion and torture in the treatment of enemy combatants.

As the book documents, however, the scandal at Abu Ghraib primarily involved the twisted entertainment of a handful of soldiers at the expense of common Iraqi criminal inmates who were never interrogated and had no intelligence value whatsoever.

The seven victims had been involved in a food riot at a nearby prison camp and had the misfortune of being detained on a night in which some bored and stressed out GIs decided to create some perverted amusement. The iconic images of naked Iraqi prisoners forced into cheerleader pyramids, required to masturbate for the cruel enjoyment of the guards and terrorized by dogs and other sadistic stratagems— are unfortunately engraved on American and world consciousness.

The fact that the incident directly involved only a few does not minimize the culpability of those who were convicted or the negligence of the chain of command. Although the use of abusive interrogation techniques deserves full public scrutiny, the issue which is defined by Secrets is the failure of the command officers to provide the support and guidance to the women and men on the ground so that they could emotionally survive this terrible war.

What the authors of the book demonstrate is that the incident at Abu Ghraib and its aftermath stand as a microcosm, a prism, for examining everything that is right and wrong about the whole Iraq war. At its worst, the incident embodies mistakes by political and military decision makers in the conduct of the war as a whole—the inadequacy of resources and manpower, the defective planning and training for the effect that incessant danger and hostility will have on the ground level soldiers.

At its best, the scandal aftermath and its investigation are representative of the virtues of the American troops—the overwhelming majority who conscientiously do their duty under traumatic circumstances and just want to return home. Among them are heroes who exerted incredible effort and dedication to search for American justice amidst a confusing rubble of facts and allegations. Finally the study highlights the sacrifice, personal, career and, sometimes, in lives lost, made by American soldiers in this war.

Put in the hero category, the prosecutors and law enforcement investigators, including the authors, who left hearth and home to work 16 hours a day, seven days a week under the glare of the international press and a polarized nation in search of a just and honorable resolution. It was, as one of the Pentagon generals warned them, “a fuckin’ no-fail mission.” They did what prosecutors and agents do every day, they followed where the evidence led them in search of the right result, and let the chips fall where they may.

The Secrets of Abu Ghraib deserves to be in that library of non-fiction war books which are passed on to the next generation. It is compelling, insightful, and as entertaining as it is edifying.

By Ross Parker

Are we the most violent, the most criminal country on the globe?

As someone who was a career federal prosecutor and reveres the criminal justice system, the question seems almost insulting. Do we not have one of the most finely nuanced systems when it comes to protecting human rights while protecting the public from criminals? Many would say Yes.

And yet we, who make up only 5% of the world’s population, have 25% of the world’s prison population, far outstripping countries like Iran, North Korea, and China. 7.3 million people in the U.S. are either in jail, on probation or in some form of supervised release.

One in every 31 can expect to enter the criminal justice system in this country, one in seven African American males.

During the last three decades, the response to the crime epidemic has been to tighten the screws ever tighter by increasing sentences and creating more laws mandating incarceration.

The result has been an increase in the nation’s prison population, which has climbed from about 500,000 in 1980 to almost 2.5 million.

Are we safer today than in 1978 when I prosecuted my first buy-bust cocaine case? Few would think so.

Moreover, sociologists claim that whatever stability there has been in the crime rate is due more to factors like the aging population than our get-tougher response.

Whatever the causes, prisons are overflowing and have become increasingly more dangerous places for corrections officers and inmates. During the same three decades corrections expenditures have ballooned from $8 billion to $70 billion annually. In the current depleted economic condition, states say that they can no longer afford these costs. Their economizing is affecting funding for law enforcement with layoffs and reduced financial support.

As this cause and effect debate rages on, there is a plan to examine the criminal justice system as a whole and suggest workable reforms.

U. S. Senator Jim Webb of Virginia last year proposed a bill to create a blue ribbon commission of experts from all fields to study the current problems and come up with solutions.

The bill, which has been reported favorably by the Senate Judiciary Committee, should come up for a vote this year. A companion bill has bipartisan backing in the House of Representatives. The proposal has the support of an array of organizations ranging from the ACLU to the Fraternal Order of Police.

The federal law enforcement community should not only support this bill but should lobby to actively participate in the commission, both directly as members and by providing data and perspective on subjects which will undoubtedly produce a lot of controversy.

Like legalization of marijuana, the Commission will probably study the need to look at a host of alternatives including non-incarceration sentences for some non-violent crimes and the elimination of mandatory minimum drug sentences, to name a few.

Some will think that such controversies should not be opened for debate. But, given the status quo, we cannot afford not to discuss some innovative policy choices, including ones which have been successful in other countries.

There are a number of areas which, in my opinion, deserve study and in which reform is sorely needed:

1. Prisoner Rehabilitation and Re-entry Programs – Two of every three released inmates will be re-arrested and half of them will go back to prison within three years of their release. This rate of recidivism threatens public safety. The current correctional systems have all they can handle, and more, to keep jails and prisons relatively safe. It benefits every citizen to provide programs in the prisons for training, education, and re-orientation to point inmates in a law abiding direction. After their release, support programs for their re-entry into society with legal opportunities and alternatives are needed. Mental health and drug addiction programs are especially important given the sizeable percentage of inmates who have needs in these areas.

2. Drug Enforcement Policy Reform – We have increased the incarceration of drug offenders many-fold in the last 30 years, according to some statistics more than ten times. This increase, for better or worse, is largely responsible for the significant prison population increase. And yet drug cartels and gangs flourish and drug-inspired property crimes abound. Changes in this area will, no doubt, generate fierce controversy, but reforms must be considered. Should sentences continue to be based primarily on drug amounts rather than culpability levels? Are mandatory minimum sentences necessary and effective? Should crack cocaine be equated with powder for sentencing purposes? Should possession and use of small amounts of marijuana be de-criminalized?

3. Law Enforcement Funding, Training – Many states have severely curtailed funding for salaries, training, and improved technology and equipment. No serious plan for reform can be successful without adequate support for its foot soldiers. The trend toward a more educated police force should be enhanced not reduced.

4. Standards and Compensation for Indigent Defense – The overwhelming majority of accused receive appointed counsel. In many states, such as my own, Michigan, the appointment process, qualification and performance standards, and compensation are both chaotic and contribute to the problem. The result is that many good defense lawyers refuse to represent indigent defendants. Although it may seem counter-intuitive, most prosecutors would prefer to deal with prepared and experienced counsel. The likelihood of a just and efficient result is enhanced by adequately compensated defense attorneys. The present situation encourages inaccurate results, unjust dispositions, and endless appeal and post-conviction litigation.

There are a host of other issues and problem areas which may, or may not, be appropriate for a big-picture commission. For example, how should we as a society respond to the growing realization that, even with a system that is 99% accurate, there are thousand of post-appeal inmates who actually did not commit the crime for which they are incarcerated? DNA testing has already exonerated more than 300 prisoners. Hundreds of Innocence Projects have proposed procedures and methods for considering claims of actual innocence. Law enforcement officials, both current and retired, have been active in this movement. This is just one of probably many other subjects which are worthy of study.

Congress should take advantage of the momentum for Senator Webb’s bill and pass this legislation. Whether an innovative blueprint by a Criminal Justice Reform Commission can survive state and federal legislative finger-pointing, inertia and election-motivated partisan politics, will be another, and more challenging, question.

In October, 2008 this column pointed out the growing link between international narcotics traffickers and terrorists, especially in Afghanistan. This was not news to federal law enforcement. Still, few politicians or members of the public were aware of this relationship.

Support for a well financed and coordinated international enforcement strategy, despite the best efforts of a few at DEA, seemed to be desperately lacking.

This dim political recognition came despite the alarming facts: The Taliban was expected to receive $70 million from the poppy harvest that year, and half of the terrorist organizations were financed — at least in part– by drug trafficking. The money was used to buy more sophisticated weapons and explosive devices and to train and equip more Taliban fighters.

In 2009 the Obama administration launched a bold strategy to attack narco-terrorism in Afghanistan. A multi-agency task force was established in Kabul to disrupt financial channels. The military targeted dozens of drug lords and began to participate in seizure and interdiction efforts.

And, importantly, the number of DEA personnel stationed in Afghanistan jumped from from 13 to almost 100. Add to that number the dozens of retired federal agents who were sent as contract civilian trainers to advise and assist the Afghan anti-narcotic program.

This ramping up of the anti-narcotic effort did not come without sacrifice. In October of 2009, three DEA agents who were returning from a firefight with Taliban drug traffickers in western Afghanistan were killed when their helicopter crashed. Seven military officers were also lost. The three DEA agents, Forrest Leamon, Chad Mitchell, and Michael Weston, had all volunteered as part of the expansion effort. They thought they could make a difference.

Now their sacrifice and the efforts by others appear to have made some difference. DEA Administrator Michele Leonhart announced this week in Kabul that more than 80 combined operations in 2009 had increased the drug seizures there by 924%. These efforts greatly decreased the amount of drugs exported from 2% of the total amount produced to perhaps over 10%, a significant achievement in one year.

Although this anti-narcotics surge has de-emphasized eradication, those efforts have nonetheless borne fruit as well. Eradication in the opium-rich southern region of Afghanistan has reduced cultivation by 30%. Narco-terrorists reacted to this success on Wednesday by detonating a bomb which killed 13 people who had gathered to receive free vegetable seeds as part of a British alternative crop program. Whether these re-education efforts will have the long term effect of helping to re-build the country’s agriculture, or will simply reduce supply enough to keep prices high, is up for debate.

The question, of course, is whether this new strategy represents the beginning of an awareness and commitment on the part of Congress and the Administration that support is needed on a global basis for the resources to enhance a well coordinated and financed enforcement strategy.

We spend billions each month on an uncertain military effort, not to mention the lives lost. So, a few additional million for an increase in law enforcement resources seems a worthwhile investment.

In a relatively small agency like DEA, if we don’t put up the funds and instead just shift resources and personnel, we’ll simply end up reducing enforcement elsewhere. Not smart.

The other issue is whether this growing awareness will make anti-narcotics enforcement a consistent priority both in this country and abroad.

One of the topics President Obama raised with Afghan President Hamid Karzai in their meeting in Kabul this week was the need for more effort against the narco-terrorists in that country. Whether it is even possible to motivate Karzai to get serious about the epidemic, which is destroying his country, given the involvement of so many corrupt Afghan officials, is yet another unanswered question.

Drug investigators and prosecutors have become accustomed to measuring victories through regular announcement of increases in seizures and arrests – all while the war is being lost by insatiable drug demand, inconsistent political commitment and inadequate resources.

Whether this latest development will mark another frustrating chapter may ultimately come down to whether the politicians and public truly understand the battle and the need for resources.

By Ross Parker

The decision of where and in what forum—civilian court or military commission—to prosecute Khalid Sheikh Mohammed and his four co-defendants has sparked a political firestorm of debate.

“Conservative” politicians and pundits have managed to cast the debate in terms of rights of enemy combatants versus the legitimate security needs of the United States. In other words, which is more important, the lives of Americans or the rights of terrorists? When put that way, it is easy to tell which hand has the chocolate.

The administration has been dithering and straddling on the issue. Reports have it that the President’s advisers are recommending a shift to the predominant or even exclusive use of military commissions and that his Chief of Staff Rahm Emanuel is discussing a deal with Republican Senator Lindsey Graham.

All of this partisan posturing obscures and politicizes a question which should be decided by law enforcement and Justice Department professionals according to the needs and circumstances of a particular case. Why should we eliminate as an option the criminal justice system which has so successfully resulted in hundreds of double digit prison terms for those convicted of terrorism-related violations?

Some have argued that the terrorism conviction rate in the federal district courts misses the point. However, these numbers are such an overwhelming endorsement of the use of the civilian court system.

Of the approximately eight hundred alleged terrorists charged since 9/11, over five hundred of the less than six hundred whose cases have been resolved have been convicted (almost 90%). About two hundred are still pending. Moreover, the average sentence has been about 16 years. In comparison, the 20 military cases have produced 3 convictions and two of the defendants have already been released. With such statistics, it is difficult to be overly concerned about the procedural disadvantages of the civil system.

The inevitable conclusion is that the FBI and other law enforcement agencies, along with the Justice Department prosecutors have been quite effective in terrorism cases. Their experience and professionalism in the use of intelligence, apprehension of targets, and marshalling of persuasive evidence have been unmatched. Moreover, the civilian court system has proven to be efficient, to possess unquestioned credibility, and to pose few obstacles to the presentation of all relevant evidence.

Are there costs involved in a predominant civil court system option in terrorism cases? Obviously there are, including the financial burden of high security trials and the safety issues posed by the prosecutions and incarcerations of these defendants. But these are simply the price of maintaining a democracy based on the rule of law and individual liberties. And, compared to the alternative, these costs are manageable.

Rejecting the civilian court system presents some serious costs which are not so manageable. Some of these costs are intangible, such as the loss of confidence in the traditional reliance on the rule of law and the separation of powers between the executive and the judiciary. Others are more practical, especially the reduced American credibility and positive relationships with our allies, which are so important to winning the war on terrorism. Extradition decisions, international law enforcement cooperation and our diplomatic efforts on human rights come to mind.

What effect does it have to treat these defendants as enemy combatants rather than accused criminals, as soldiers and warriors rather than mass murderers, to allow them to place the focus on the legitimacy of their cause rather than the nature of their crimes?

Some say that the danger of exposing secret information is too great. The fact is, however, that the risk of disclosure of classified information has simply not been a significant issue in terrorism cases. The Classified Information Procedures Act, though in need of some legislative fine tuning, has effectively enabled federal prosecutors to manage both discovery and trial evidence issues without risk of danger of exposure of sensitive information.

Two decades ago this same fear was expressed in espionage cases, but it has proven not to endanger national security or pose a barrier to effective prosecution. Similarly, the specter of wholesale disclosure of sensitive and legally irrelevant information in terrorism cases is no more than an emotional red herring which obfuscates an intelligent discussion of the real choices to be made.

The military courts have an important role to play in the war against terrorism. No one can question the legitimacy of using this forum on foreign soil or against non-U.S. citizens who are military combatants. Deciding to utilize this system, on a case by case basis, may also prove to be appropriate in other situations.

But the use of our criminal justice professionals and system in the great majority of terrorism prosecutions presents an invaluable opportunity to say to the rest of the world that a free government based on the supremacy of the rule of law will continue to vanquish despotism and anarchy. This is subject which is too important to be left to demagogic politicians hunting for a campaign issue.

This fall someone near and dear to me began a job tutoring and counseling students at an inner-city Detroit high school.

Her daily reports over the dinner table range from disturbing to appalling. Despite the heroic efforts by some of the teachers and students, attending school consists mainly of fighting your way to and from school with limited learning in between.

Her school has been on “lock down” two days this week because of incidents involving firearms. Squabbling among politicians, bureaucrats, teachers, and parents, along with a pathetic state economy and financing system, have insured the escalation of this dismal situation.

This subjective and heartbreaking appraisal by my source was confirmed by the National Assessment of Education Progress test scores which were announced this week.

Detroit students not only scored the lowest in the nation, but the lowest in the 40 year history of the test.

If the scores of the top 10% of the Detroit students were removed from the mix, one could assume that the remainder could have done as well by choosing answers with a dart and dart board.

With only about 25% of the students managing to graduate, two-thirds of the drop-outs end up in either prison or on welfare.

Although Detroit’s test results are notable, an objective examination of more than a dozen other school systems in some of the country’s largest cities demonstrates that Detroit is not alone.

Clearly, the education systems in low income areas deserve an “F” for Failure. They prepare their students for lives of crime, poverty and neglect. The kids and their families pay the highest price but, without a doubt, we all are paying for this under-educated generation.

So what does this depressing news have to do with a law enforcement newsletter? Any police officer can answer that question, and this assessment is demonstrated by sociologists who find a direct link between crime and violence, on the one hand, and poor educational skills on the other.

A cynic might point out the silver lining for law enforcement officers in this pitiful situation by responding, “Job security.” But actually the opposite is true.

Not only will police officers and federal agents suffer the financial hardships of supporting this lost generation like the rest of the working Americans, but more particularly their jobs will be more difficult and dangerous, discouraging and dispiriting.

As the stress levels of law enforcement officers continue to escalate, the resulting toll on their emotional, medical, and social lives, and those of their families, cannot but increase as well.

Where is the outrage to this dismal state of affairs which might lead to serious reform efforts on a community, state and national level? Instead, denial, apathy, and finger pointing rule the day.

At the risk of being overly simplistic, I say we take some of the hundreds of billions we spend training and supporting Iraqis and Afghans and bolstering the military industrial complex and spend some of it on inner city kids who deserve an education other than the one they will get in the criminal justice system.

By Ross Parker

The greater majority of Americans long assumed that the criminal court system worked just fine. With criminal defendants afforded substantive Constitutional rights, many people assumed the nation’s prison held no innocent men or women.

This blithe assumption was upset in recent times by the use of DNA technology in post-conviction settings, which scientifically demonstrated that the innocent do indeed – even if only rarely– get convicted in this country.

Not only has the infallibility of the jury system suffered a blow by this development, but whole categories of evidence upon which we prosecutors relied upon like confessions and eyewitness identifications, which were utilized in over 75% of the wrongful convictions, have been called into question and become the targets of “reform” movements.

Last week the Supreme Court ruled in the 5-4 Osborne decision that an Alaska inmate did not have the right under the Due Process Clause, in the context of a Section 1983 civil rights suit, to have access, at his own expense, to semen evidence from his rape trial for DNA testing.

Although the Court recognized the “unparalleled ability” of DNA to exonerate the wrongfully convicted and identify the guilty, the majority held that the power to establish rules to regulate the use of this investigative resource belongs primarily to the state legislatures. Since Alaska’s post-conviction relief procedures were not fundamentally unfair, the federal courts could not upset procedures which disallowed “freestanding” discovery rights.

The majority relied on principles such as federalism, comity, finality and states’ rights, to reject the broad-based due process right of access to evidence for testing purposes advocated by Justice Stevens’ four-member minority.

Read by a career legal technician, particularly an ex-prosecutor, the majority opinion seems to rely on sound, time-honored legal reasoning. It is, moreover, as pointed out by Attorney General Eric Holder, both limited in scope and unlikely to foreclose the DNA testing examinations being conducted by the tens of thousands in the state and federal crime laboratories.

However, now that we must acknowledge that there are factually innocent people in prison and that there is an inexpensive and uniquely definitive test to exonerate them, as well as confirm the rightness of the imprisonment of the guilty, principles such as finality and comity seem rather underwhelming. One wonders whether the moral credibility of the nation’s criminal justice system would not benefit from the

Supreme Court stating, for the first time, that there is a fundamental right to be released from punishment upon proof of actual innocence.

Whatever your doubts about the balance struck by the Supreme Court in Osborne, the real target for moral criticism in this case ought to be the State of Alaska and its Prosecutors. In addition to having no law on DNA testing, the state has apparently never authorized a post-conviction DNA test, either at the instance of the prosecution or as a result of a court’s order.

What was the Prosecutor thinking? Instead of consenting to a simple test and settling the defendant’s culpability once and for all, they chose to spend thousands of hours of litigation, undoubtedly hundreds of thousands of dollars, and years of time litigating an issue without articulating a single reason justifying these extraordinary expenditures. Why do it? Apparently because they can.

Prosecution policy-making like this weakens our system of justice and encourages “reforms” which complicate and impede law enforcement’s search for the truth.

Some believe that prosecutors are the most powerful figures in the criminal justice system. Many of their decisions are virtually unreviewable: charging, case disposition, dismissals, plea bargains, and sentence recommendations, to name a few. Local and State prosecutors can be held accountable to the voters.. But given the power of incumbency, that checks and balance is rarely exercised.

The advent of DNA exoneration reversals (233 at last count) in the last decade has hammered home the point: The criminal justice system is not perfect. A 2003 study by the Center for Public Integrity claims that prosecutorial misconduct contributed to decisions on charge dismissals, conviction reversals, and reduced sentences in 2,012 cases since 1970.

Conversely, some say, given the millions of cases during that 23 year period, the “error rate” of less than .1 % is probably the lowest of any civilization in human history. Likewise, almost everyone active in the system would probably say that that rate has fallen dramatically in the last half-century with the judicial reforms of criminal procedure.

Still, a raw number of instances of material misconducts in the thousands is alarming to a public who blithely assumed that the system was always right and that procedural reforms have guaranteed that no innocent person could get convicted.The misconduct figure, plus various estimates of 1% or higher of wrongful convictions, i.e., conviction of the factually innocent, have spawned a nationwide movement to require more transparency and accountability for prosecutorial decision-making.

Such groups as The Justice Project conclude: “This lack of accountability has led to widespread abuse of prosecutorial power, and a flawed and inaccurate criminal justice system.”

In response to this over-generalization, the group recommends sweeping reforms, including: Clearly defined official policies and procedures, open file discovery, documentation of all witness and informant agreements, mandatory judicial reporting of every instance of prosecutorial misconduct, and a review board to investigate and sanction any such misconduct.

For those of us who were and are federal prosecutors, these “reforms” are essentially the status quo, but for many state prosecutors, these changes would severely curtail the wide discretion in which such an overworked system has come to depend.

The Project also advocates wide ranging reform to criminal procedures generally, including: improving and standardizing eyewitness identification practices, electronic recording of interrogations and confessions, expanded discovery rights, and higher standards for the performance of counsel in capital cases.

No doubt some jurisdictions need some of these reforms. Scientific studies on the need for more objective lineup protocols and methods of avoiding false confessions are increasingly persuasive.

Forensic testing problems, likewise, are likely to receive more attention by a public which is getting used to the forensic infallibility of the many television shows on the subject.

The mind-boggling misconduct alleged in the prosecution of Alaska Senator Ted Stevens, and its very public consequences, demonstrates that even federal prosecutors are not immune from such controversies.

Every case like Stevens fosters a new wave of increased and unjustified public cynicism that prosecutors commonly railroad the innocent. The significant difference in these high profile federal cases is that it is the Justice Department itself which has aggressively investigated and taken action in response to allegations of such behavior.

The public is largely unaware that there is a highly effective review and accountability function in the federal system. The Office of Professional Responsibility (OPR) is a meaningful deterrent of misconduct, as well as a source of exoneration for federal prosecutors unfairly accused of misconduct.

Prosecutors, both state and federal, cannot ignore this “reform” movement. They need to participate actively in the public forum, contribute to legislative debate, and acknowledge that, in some jurisdictions, and in some areas of the criminal justice system, changes need to be made.

Ross Parker, a former assistant U.S. Attorney,  is the author of a new book: “Carving Out the Rule of Law: The History of the United States Attorney’s Office in Eastern Michigan 1815-2008″  The book is available on amazon.com and rparker54@comcast.net.