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BUKOWSKY: Feeding Grand Juries Baloney Sandwiches


Political Prosecutions Got 99 Problems & Public Safety Ain’t One 

A prosecutor is supposed to be devoted to enhancing public safety. But, too often in America, prosecutors instead give in to the temptation to use their power to further their own personal ambitions and/or to take out a political opponent. And one cannot help but wonder whether that is currently the case with St. Louis Circuit Attorney Kim Gardner.

Gardner waited less than 24 hours after the KMOV story broke to announce that she had made the (highly irregular) decision to launch a “formal investigation” into the “alleged actions of Governor Greitens” last month.

One would think that Gardner has more serious matters to find “troubling” than the 2015 alleged actions. After all, in 2017, St. Louis was named the 2nd most violent city in the country and only solved 35 percent of its homicides.

Last week, two private investigators working on behalf of Gardner spent Valentine’s Day in Jefferson City interviewing at least 24 legislators about Governor Eric Greitens about a broad range of topics.

Earlier this month, Attorney Al Watkins announced (before he agreed to be gagged) that Gardner has empaneled a grand jury. This indicates that Gardner’s investigation is still ongoing, although it certainly does not mean that Gardner’s investigation will be fair. As is often said, a prosecutor can persuade a grand jury to indict a ham sandwich. After all, there’s no one there to object if the prosecutor feeds the grand jury a bunch of baloney.

Respected legal scholar Alan Dershowitz recently observed that there is a frightening trend in America “that afflicts both Republicans and Democrats: the criminalization of political differences.” As he explained, there are too many malleable laws on our books that “can be used to prosecute the ethically questionable, but not necessarily criminal, activities of political rivals.”

Indeed, due to the vast and vague statutory and regulatory provisions from which a prosecutor can try to prosecute an individual – “everyone is a criminal if prosecutors look hard enough, they are guaranteed to find something eventually.”

Former Supreme Court Justice Robert Jackson warned us that a prosecutor is the most dangerous when he decides to “pick people he thinks he should get, rather than pick cases that need to be prosecuted” because there are undesirable motives for a prosecutor to proceed by “picking the man, and then searching the law books . . . to pin some offense on him.”

It’s worth noting that overzealous prosecutors don’t limit their targets to politicians. (See, e.g., Jim Comey’s Javert-like persecution of Martha Stewart and/or the outrageous overreach by prosecutors in their case against Reddit founder Aaron Schwartz, a former child prodigy who committed suicide after being persecuted by federal prosecutors).

Grand Juries & the Mess in Texas

Grand Jurors in Texas have been convinced to indict in political prosecutions many times. Two different Democrats holding the office of Travis County District Attorney (which encompasses Austin) have wrongfully persecuted two different high-profile Republicans: Tom Delay and Rick Perry.

In 2005, the Democrat Travis County District Attorney empaneled three grand juries to take down then-majority leader of the U.S. House of Representatives – Tom Delay. Even though Delay was eventually exonerated, the political prosecution forced him to resign from office and destroyed his political career.

In 2014, the Democrat Travis County prosecutor persuaded a grand jury to indict Texas Governor Rick Perry. The indictment was eventually dismissed in 2016. But while Perry was never convicted, the indictment came while he was running for President and it cost him plenty of time and money.

Finally, there is a high-profile Republican on Republican political prosecution pending in Texas now that the Wall Street Journal described as “dubious.” Texas AG Ken Paxton, who has a reputation of ruffling the Republican establishment and was elected in 2014 on a wave of tea-party support, was indicted in 2015 and faces several felony charges of securities fraud. The complainant is a GOP rival. Since his indictment, Paxton has received a total of over $630,000 for his legal defense from family and friends. The prosecution is draining Paxton of time and money as he seeks reelection.

Will the Cole County Prosecutor Strike Back?

It is also important to note that prosecutor political warfare can go both ways. After all, if we are to have formal investigations by prosecutors originate from news articles (instead of from cases referred to prosecutors by law enforcement agencies, which is the normal and proper course for criminal cases), where does that stop? Should Republican Prosecuting Attorney Mark Richardson formally investigate the Star’s report that two private investigators (Jack Foley and William Tisaby) interviewed over two-dozen lawmakers last Wednesday? It appears that neither of them is a registered private investigator, so those interviews may have been unlawful. And, under the doctrine of accomplice liability, it is also unlawful for Gardner to send unlicensed private investigators to Jefferson City to interview legislators.  Should Richardson now empanel a grand jury to consider indicting Gardner and her investigators for those alleged actions? Violating the private investigator registration requirements is a class A misdemeanor for the first offense; a subsequent offense is a class E felony.

No MO Political Prosecutions, Please

Prosecutors should not launch political prosecutions. They should focus on enhancing public safety. When prosecutors play politics or use their power to advance their own career ambitions by pursuing cases that do not enhance public safety, it undermines the public’s confidence in our political system and our criminal justice system.

And if politicians stand by silently when prosecutors go on political witch-hunts to take down political rivals, they shouldn’t be surprised if there is no one there to object if and when it happens to them.