High court invites one-two punch of fines, criminal charges

By Vin Suprynowicz
web posted February 1998

The Supreme Court on Dec. 10 handed down one ruling that's good news for those worried about prosecutorial excesses, but in a second case took a step in the opposite direction.

In the first case, a Washington state prosecutor named Lynne Kalina had sought an arrest warrant in a Seattle school burglary case by personally swearing that suspect Rodney Fletcher's fingerprints had been found in a school where he was not authorized to be, and that he'd been identified as a suspect. Both statements turned out to be untrue. But based on the sworn statement, Fletcher was arrested and spent a day in jail.

In general, prosecutors are considered immune from lawsuits for actions taken in the routine execution of their jobs. But former defendant Fletcher sued, contending such immunity no longer applies when government agents knowingly lie.

Wednesday, the high court unanimously agreed. That's good news, and the court's unanimity is reassuring. Any other decision would have offered carte blanche to prosecutorial skullduggery.

The case could also have far-reaching implications. For instance, it's well known that ATF agents lied when they said they suspected the Rev. David Koresh was operating a drug lab in his church -- the only way they could get access to military equipment and training facilities in preparation for their infamous 1993 raid in Waco, Texas.

In the second new case, however, and by a slim 5-4 majority, the court sharply limited the effects of its own double-jeopardy ruling in the 1989 case United States vs. Halper. In Halper the court held that -- under the constitutional protection against double jeopardy -- prosecution was barred if an earlier civil sanction was especially harsh and disproportionate to the harm supposedly caused to the government.

But Chief Justice William H. Rehnquist's opinion in the new case Hudson vs. United States emphasizes that "only the clearest proof" should be allowed to show that a civil remedy is really a criminal punishment ... triggering double-jeopardy protection.

The case was brought by three Oklahoma bankers, including the namesake John Hudson, who were determined to have arranged a series of loans that violated federal banking statutes and ultimately contributed to the failure of their banks. The three men in 1989 agreed to pay fines of $16,500, $15,000 and $12,500, respectively, and to quit the banking business.

Three years later the threesome were indicted on federal conspiracy charges stemming from the same transactions. Invoking the 1989 Supreme Court case, the 10th Circuit Court of Appeals said the prosecutions could proceed, because the fines imposed by the government were not so grossly disproportional to the government's damages in the bank failures as to render the fines ''punishment.''

Wednesday, the Supreme Court upheld the 10th Circuit, but then went much further toward reversing United States vs. Halper. The slim five-judge majority said judges should examine the legislative intent of a statute to determine whether it was meant to constitute a civil remedy or a criminal penalty.

The case of civil fines and criminal prosecutions is admittedly a gray area. If a driver pays a $100 speeding ticket but is later determined to have had the body of a murder victim in the trunk of his car that night, no one would want to see him protected from a criminal prosecution for the murder because he'd "already paid a civil fine" for a related offense.

But in today's real world, the government often does use fines and "civil" asset seizures as a way of punishing accused drug dealers, pornographers, and the like, long before they have their day in court ... and regardless of any original legislative intent.

In fact, prosecutors often immediately seize an accused party's bank accounts, home, and other assets, making it impossible for the accused to retain any counsel but a harried public defender, or to support himself and properly fund a trial defense that could take months or years.

Such defendants are thus effectively coerced by government-imposed poverty into accepting a plea bargain just to spare their families from begging on the streets -- hardly a recipe for justice.

When the three Oklahoma bankers agreed to pay their 1989 fines, did they have a reasonable expectation that they would then be done with federal penalties for their admitted offenses, and could resume their lives? Is it really all right for different federal agents to show up years later, saying, "Your deal with those guys isn't binding on us; thanks for the dough, but we're from a different department, and you're under arrest"?

The high court now seems to be backing away -- under political pressure related to the hysterical "War on Drugs" -- from even such mild limits as they have previously placed on prosecutors using civil fines and seizures, and then criminal prosecutions, as a one-two punch to break defendants both emotionally and financially.

In the end, that will only erode confidence that any defendant can really get a fair shake in our courts.

Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. Readers may contact him via e-mail at vin@lvrj.com. The column is syndicated in the United States and Canada via Mountain Media Syndications, P.O. Box 4422, Las Vegas Nev. 89127.

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