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The prosecutor’s office, a well-established stepping-stone for politically ambitious lawyers, has become an increasingly powerful arm of government in Michigan over the years. With the recognition that many crimes are symptoms of underlying social problems, state prosecutors have been drawn into administering a variety of social programs through the justice system. But all too often, critics complain, the prosecutor’s office operates without the same degree of checks and balances that regulate other areas of government. At worst, said attorneys interviewed by American Lawyer Media News Service and the Metro Times Detroit, the situation invites such abuse that defendants sometimes face the ” unchecked power of the entire state,” as one Detroit defense lawyer put it. At best, the evolving nature of the office of county prosecutor makes it difficult for the public to follow its actions. “It’s true that they [prosecutors] have a tremendous amount of power, but how they make decisions is often privileged information,” said Peter Henning, a law professor at Wayne State University in Detroit and a former federal prosecutor. “There is very little transparency in this particular branch of government.” Brian Mackie, the Washtenaw County prosecutor and president of the Michigan Prosecutors Association, has a related concern: “I’m amazed at how little people know about what we do.” This despite August election primaries that featured spirited prosecutor contests in the Detroit region of Wayne, Oakland, and Macomb Counties, which collectively handle the overwhelming majority of Michigan’s felony cases. What a prosecutor should do — above all else — is set high standards for the county in both law enforcement and criminal justice, according to Marianne Ciefer, chief public defender for the Detroit U.S. District Court. The best prosecutors, she maintains, are forthright with evidence and work fairly with defense lawyers. THE ‘WIN-AT-ANY-COST’ ATTITUDE “If an office is run with a win-at-any-cost attitude, the defendant isn’t going to get a fair shake,” Ciefer said. “Prosecutors also need to be defenders of the Constitution. How they behave filters all the way down to the cop on the beat.” Mackie, too, holds prosecutors to a high standard. He said the measure of a prosecutor is in knowing that criminal justice begins, but does not end, with an individual case. But Mackie said an informed public must be involved in that standard. “People need to demand that prosecutors are accountable, and take on important issues — racial justice, reasonable search laws, and fair sentencing,” Mackie said. “If prosecutors are not fulfilling their obligation to the community, then the community has to say so at the ballot box.” It is the public at large that most acutely feels the results of policies set by prosecutors. According to Henning, the scope of prosecutorial power has dramatically widened over the years, particularly in the areas of drug crime, white-collar crime, and crimes related to technology. Often, these new responsibilities are administered through a variety of out-of-court programs. In Wayne County, for example, the prosecutor’s office oversees a diversion program to provide supervision and support to first-time offenders who might otherwise land in jail. In Washtenaw County, prosecutors have targeted deadbeat parents with a system of monitoring child-support payments. “The prosecutor has a much larger role today,” said Wayne County Prosecutor John O’Hair, who is retiring from office at the end of his current term. In addition to the diversion program, O’Hair has established a number of outreach efforts, such as community meetings to discuss prosecutorial expectations and a plan to help support abandoned children. “All of these programs,” he said, “are designed to prevent people from entering the system in the first place.” ‘PERVERSE INCENTIVES’ But defense lawyers have other concerns, according to Eric Sterling, a spokesman for the Criminal Justice Policy Foundation of Washington, D.C. Rigid sentencing guidelines and hardball plea bargaining tactics — along with a voting public that seems to respond to tough talk on crime by election candidates — have given prosecutors unprecedented discretionary strength inside and outside the courtroom, he said. “People fear crime, and want it prosecuted aggressively — too often at the expense of constitutional rights,” Sterling added. Talking about crime policy is good politics, Sterling said, while being tough on crime is even better. But this can set up a system of perverse incentives in which prosecutors pursue cases that are unsound but improve their conviction statistics and make for impressive newspaper headlines. “Every prosecutor and prosecutor’s office needs to be evaluated individually,” Sterling acknowledged. “But there is a trend toward politically ambitious prosecutors with win-at-any-cost attitudes.” The so-called war on drugs is the stage where perverse incentives are played out most dramatically, said Sterling. Draconian mandatory minimum sentences for drug crimes in Michigan and elsewhere around the country encourage defendants to name names to reduce their own jail time. Often, those implicated by the defendant turn out to be innocent — a fact of which prosecutors are aware, but often do little to discourage, said Sterling. “This has simply become part of the process,” Sterling added. “It’s called ‘testalying’ in New York, and ‘the liars’ club’ in Los Angeles. Prosecutors know it goes on.” Sterling’s organization and the American Civil Liberties Union are currently involved around the country in several lawsuits, in which they claim innocent persons have been charged in drug crimes based on testimony of other defendants that is unsupported by any other evidence. In one such case now under appeal, a Michigan convict argued that he is an example of the tactic decried by Sterling. Six months ago, “Eric” — who spoke to Metro Times Detroit on the condition that his real name not be used, for fear that publicity could affect his appeal — was arrested in a drug sting carried out jointly by the Detroit police and the Bureau of Alcohol, Tobacco and Firearms (ATF). At the time, Eric was living with his brother, who was the actual target of the sting. When Eric returned home from work, police officers and ATF agents mistook him for his brother and raided their shared house. Eric’s brother was not at home. Police found enough cocaine on the premises to charge the occupant with trafficking. Eric maintained the cocaine was not his. Although he had youthful misdemeanor convictions for petty theft, Eric has no criminal record associated with drugs. His brother, on the other hand, had been arrested twice for drug-related crimes. Eric refused to testify against his brother, claiming he knew nothing about the drugs found by police. For that refusal, Eric alleges, Wayne County prosecutors turned their aim on him — charging him with possession of narcotics with intent to sell. To make matters worse, because the investigation was a joint police-ATF operation, Eric could be tried in either state or federal court. According to Eric, prosecutors made good on their threat to have him prosecuted in state court, which carries a more severe mandatory life sentence on conviction. “My brother’s business is none of mine,” Eric said. “I was clean. They have no evidence linking me, no witnesses, and no record. It’s not fair they should come down hard on me because they came up empty on my brother.” Outgoing Wayne County Prosecutor O’Hair would not comment on Eric’s case. He said, however, that aggressive prosecution of crimes — within ethical boundaries — is what good prosecutors do. “You can’t say because there are questionable practices in Los Angeles that it’s happening here [in Detroit],” O’Hair said. “Wayne County does not have a win-at-any-cost mentality.” ‘A BARTER SYSTEM’ But defense attorney Jeanice Dagher-Margosian is unsurprised by Eric’s story. She said such “aggressive” prosecutions happen all the time in Michigan’s courts. “There’s no question this stuff goes on,” she said. “Some prosecutors are beyond aggressive. It’s unconscionable — and unconstitutional.” Bumping up charges is only one example of the many ways in which prosecutors operate with diminished restraint, said Dagher-Margosian. They now also usurp territory that has traditionally belonged to the judge. She said prosecutors exert increasing control over pre-trial examination and how the defendant is to be charged. Dagher-Margosian said such control gives the prosecutor undue influence over how a defendant will plead, which in turn affects sentencing. “Plea bargaining, sentencing, the presentation of evidence — the courts have become a barter system,” said Dagher-Margosian. “And it’s one in which prosecutors have increasing leverage. It becomes the individual defendant against the unchecked power of the entire state.” Henning said judges are willing to cede much of the decision-making process to prosecutors because many judges, too, are elected officials sensitive to public opinion. It is often so much easier to simply sidestep a tough call. “I think these problems always existed,” said Henning. “You’re just seeing more of it in the open these days. No one ever looks at the decisions made on the day-to-day level.” But government and a variety of interest groups are beginning to look more closely, at least on a big-picture level. The Congressional Sentencing Commission issued a report in 1994 that strongly criticized mandatory minimum sentencing and the overall transfer of power in the courts from judges — who are supposed to be impartial — to prosecutors, who are not. And in a commencement address last June at Northwestern University’s Chicago law school, Attorney General Janet Reno urged graduates who wish to become prosecutors to “use your smarts to identify what the problems really are, get the facts straight, and work only in the interest of the community.”

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