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Martha Stewart stands convicted primarily of lying to federal officials in informal interviews about a matter that did not result in her prosecution for substantive criminal wrongdoing. As a result of her lies, she will lose her liberty, her reputation and her financial empire. One lesson from this case is that it’s bad to lie, particularly to a federal prosecutor, because he will catch you and punish you. But many, especially those who follow criminal justice issues, will appreciate the irony in such a prosecution. That is, sometimes prosecutors lie too. But when prosecutors lie, usually nothing happens to them. Let’s be clear. Some lies by prosecutors are justified by them as “beneficent lies.” Consider a prosecutor’s lies, deceits and misrepresentations, or use of them, that typically attend undercover investigations. Such dissembling is tolerated to catch guilty people in criminal activity that is sometimes manufactured by the government itself. Entrapmentlike conduct is an accepted part of law enforcement, however immoral and unsavory some people might believe it to be. One glaring illustration is the pornography prosecution of Keith Jacobson. Federal law enforcement agents repeatedly solicited him for more than two years, using five fictitious organizations and a bogus pen pal who lied to him repeatedly to entice him to purchase child pornography. Prosecutors relied on those deceptions to bring a case that the U.S. Supreme Court ultimately struck down. Or consider the lies and deceits by government interrogators to induce a suspect to confess. Such conduct, used by prosecutors to convict, is routinely permitted as necessary to solve crimes. Interrogators in one notorious New York murder case told the suspect, falsely, that his victim was alive in order to minimize his appearance of culpability and trick him into confessing. And prosecutors, over the years, to avoid search and seizure limitations, have routinely elicited from police witnesses the obviously false testimony that suspects “dropped” drugs and other contraband to the ground upon seeing the police. Lies, deceits and misrepresentations by prosecutors inside the courtroom are never justified. True, most prosecutors are honest, responsible and hard-working public servants. But to win convictions, some prosecutors lie. And in contrast to Martha Stewart, these prosecutors are hardly ever held accountable for their lies. Consider the prosecution of Edwin Wilson, convicted by a federal jury for shipping explosives to Libya. His conviction was recently thrown out by a federal judge because, astonishingly, at least two dozen federal prosecutors knowingly participated in the presentation to the jury of a perjurious affidavit denying that Wilson’s activities were authorized by the CIA. As the judge observed: “Honesty comes hard to the government. One would have to work hard to conceive of a more fundamentally unfair process with a consequentially unreliable result.” No prosecutor has been punished yet for this misconduct. Prosecutors can also corrupt the truth-finding process, without being punished, by lying to juries about the reliability of the forensic evidence, the existence of cooperation agreements, that a government witness did not confess to the crime, that a defendant fabricated evidence and that a key witness was alive. Prosecutors may also conceal favorable evidence from the defense, and turn a deaf ear to perjury from their witnesses. In the recent case of Banks v. Dretke, the U.S. Supreme Court vacated the death sentence because the prosecutor knowingly encouraged his two key witnesses to lie to the jury to get Delma Banks Jr. executed. Martha Stewart, on the other hand, was vigorously prosecuted for lies that, however inexcusable, appear far less serious than some of those noted above. Moreover, although she could have declined to be interviewed, she voluntarily spoke to the prosecutors about a matter that involved minimal wrongdoing. In actuality, her lies hurt nobody, and hardly “obstructed” federal criminal justice. It is inconceivable that she would have been prosecuted if her name were Martha Smith. Contrast this with the too-numerous cases in which prosecutors have deliberately lied to judges, juries and defense lawyers, and thereby seriously corrupted the system of justice and denied defendants a fair trial. A sea of lies Although we are taught not to lie, lying permeates our culture. Presidents, politicians, executives and the media lie. Indeed, almost everybody lies sometimes, with varying consequences. But lies that infect our system of law should be taken seriously. The public reasonably expects the legal system to act fairly and consistently. As the Martha Stewart case demonstrates, lies by celebrities are prosecuted aggressively. But so too should lies by prosecutors. A legal system that looks past, or excuses, lies by prosecutors only breeds cynicism and a disrespect for the law. Bennett L. Gershman is a professor at Pace University School of Law. Joel Cohen is a partner at New York’s Stroock & Stroock & Lavan. Both are former prosecutors.

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