Matthew T. Mangino
GateHouse News Service
April 18, 2014
Ongoing public battles over the reach and authority of prosecutors has cast a shadow over corruption probes in two states. The American Bar Association established a set of standards for prosecutors to use as a guide for professional conduct and performance. Cases in New York and Pennsylvania have tied these standards in knots.
Recently, Manhattan U.S. Attorney Preet Bharara challenged New York Gov. Andrew Cuomo's decision to dismantle a commission examining public corruption and said his office would take over the investigations.
Bharara has made pursuing corruption at the state capital a priority since being appointed by the president in 2009. The New York Times quoted him as saying during a radio interview, "Nine months may be the proper and natural gestation period for a child, but in our experience not the amount of time necessary for a public corruption prosecution to mature."
In Pennsylvania, the attorney general, a former lead prosecutor in the attorney general’s office and the district attorney of Philadelphia are embroiled in a bitter dispute. The acrimony boiled over after Attorney General Kathleen Kane decided to drop a political corruption probe in Philadelphia.
The spectacle of prosecutors engaging in bitter public debates is unsettling.
The ABA standards provide, “The decision to institute criminal proceedings should be initially and primarily the responsibility of the prosecutor.” In fact, section 3-3.9 (b) provides, “The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction.”
In March, the Philadelphia Inquirer reported that Kane's office shut down a corruption investigation that reportedly involved at least four Philadelphia legislators allegedly accepting improper payments.
The following day, Kane held a press conference saying that she dropped the investigation because it became “non-prosecutable” once charges were dismissed against the informant in the case. Kane also said that the investigation was mismanaged, and that her office found evidence that it was racially biased.
A former lead prosecutor in the attorney general’s office, Frank G. Fina, countered in an Inquirer op-ed. “My colleagues and I conducted our investigation honestly, ably, and with integrity. I am willing to sit down at the same table with Kane … where we can each respond to any questions that are posed about the investigation.”
Philadelphia District Attorney Seth Williams was also sharply critical of Kane. Fina is now a prosecutor in Williams’ office. The attorney general “drops a case supported by hundreds of hours of devastating tapes because the main witness got a deal on a bunch of government fraud charges," he wrote in an op-ed that also appeared in The Inquirer. “As a DA, I think this might be the most disturbing aspect of the whole sordid spectacle. You don't have to be a prosecutor to know this is how it's done."
Kane recently fired off a letter to the Philadelphia district attorney suggesting that "any law enforcement agency interested in taking this case should do so." Williams wrote back immediately, telling the attorney general to hand over all of the original evidence although he had already told The Inquirer that Kane's criticism of the investigation and its key undercover operative have permanently tainted any potential prosecution.
In New York, an area where federal prosecutors have turned their notoriety into elective office — Rudy Giuliani, Chris Christie — Bharara kept railing against Cuomo, "The sequence of these events gives the appearance, although I am sure this is not the intent, that investigations potentially significant to the public interest have been bargained away as part of the negotiated arrangement between legislative and executive leaders."
Asked about reports that Cuomo's aides interfered in the commission's decisions, Bharara told The Times, "I don't know what all the facts are there. … What I can tell you is, it is impossible to overstate the importance of independence on the part of any investigative body."
There appears to be no end to the unseemly and unsettling war of words.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
Visit the Column
Michael Thomas Gargiulo, Pretrial Hearing 41
2 days ago