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The past year has seen an epidemic of reports of prosecutorial misconduct, abuse and overreaching. We’ve witnessed judges harshly denouncing overzealous prosecutors in the KPMG case, well known in the business community; the Tollman cases, well known in the international community; the proceedings against Representative William Jefferson, D-La., well known in the political community � and the case amplified both nationally and internationally by megapublicity, Duke University lacrosse. These cases, while wildly different, had one common theme: The defendants had the social and financial wherewithal to defend themselves against overzealous prosecutors who, in committing gross excesses, hurt their own cases and brought about disdain from the courts and public opinion. The most notorious recent case was the allegations of sexual assault against three members of the Duke lacrosse team. Another was the first-ever search of the offices of a sitting member of Congress, Jefferson. There, a federal appeals court held that the FBI’s actions became unconstitutional when they viewed every record in the office without giving Jefferson the opportunity to argue that some documents involved legislative business. In the KPMG case, the government indicted 19 KPMG employees on conspiracy and tax evasion, and claimed that KPMG was a co-conspirator. Under the threat of indicting KPMG itself, prosecutors from the Southern District of New York succeeded in pressuring KPMG to first limit, and then cut off, its payment of legal fees to its employees. After charges were dismissed against 13 of 16 defendants, Judge Lewis Kaplan said of the prosecutors, “Their deliberate interference with the defendants’ rights was outrageous and shocking in the constitutional sense, because it was fundamentally at odds with two of our most basic constitutional values � the right to counsel and the right to fair proceedings.” Judicial criticism of U.S. prosecutorial abuse is not confined to this country. The Southern District of New York’s eight-year pursuit of the Stanley and Beatrice Tollman family, wealthy hoteliers who live in England, on bank and tax fraud charges led to stern rebukes from judges in both England and Canada. An attorney for a Tollman family member testified in an affidavit that a prosecutor said in 2002 that he was looking forward to “doing the perp walk with Bea,” a reference to Stanley Tollman’s then-nearly 70-year-old wife � a statement widely viewed as threatening public humiliation for members of his family unless he cooperated. The prosecutor denied the allegation, a denial the British judge found “untruthful.” The same judge also described as “reprehensible” the prosecutor’s tactics in seeking the extradition of the Tollmans. This past June, the judge ruled that the Tollmans should not be extradited. Earlier, an Ontario Superior Court justice found that the prosecutor tried to entrap Tollman’s nephew while he was on a business trip to Canada. He spent two years in Canada fighting the prosecutor’s attempt to have him extradited to the United States without following the law. The Canadian judge described the prosecutor’s conduct as “disingenuous” and “egregious,” stating that “it is only in an exceptional case that an extradition proceeding will be stayed as an abuse of process. This is such a case.” Recent congressional hearings revealed shocking details of politically motivated prosecutions in Alabama and Pennsylvania. The Pennsylvania case led former Republican Attorney General Richard Thornburgh, in a House hearing, to say: “Confidence in the U.S. Department of Justice’s decision-making authority in conducting criminal investigations and prosecutions, in particular, must be absolutely paramount.” Referrals to the OPR Prosecutors undermine our judicial system when they fail to carry out their duties in an impartial and professional manner. It seems to me, based on my experiences at the Justice Department and as Iowa’s attorney general, that Justice officials and U.S. attorneys need to be much more aggressive, and should refer cases to its Office of Professional Responsibility (OPR) at the first hint of even the suggestion of misconduct. Harsh criticisms from the bench should, I believe, result in automatic referrals to the OPR. Congress should examine these cases, and also ensure that the OPR has the necessary personnel and budget. As the Canadian judge wrote in the case of the Tollmans’ nephew: “Mr. Tollman was able to insist on his rights, albeit at considerable personal and financial cost. However, he was armed with intelligence, stamina, a social position of power and prestige, and enormous personal wealth. Very few people would have been able to do what he has done. If the system went awry for him, what hope is there for the weak, the poor and those less powerful?” That’s exactly the point: It cannot be that only the rich and powerful have their day in court because only they can “afford” justice. Justice needs to be fully available to rich and poor, powerful and powerless, alike, and Congress and the OPR need to move to ensure that it is. Bonnie Campbell is a partner at the Campbell Law Firm in Des Moines, Iowa, and a former attorney general of Iowa.

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