The Hyde amendment and prosecutorial investigation: the promise of protection for criminal defendants.

• Author: Singband, Lynn R.

INTRODUCTION

Kermit Bunn appeared before a federal grand jury in response to a subpoena requiring him to certify the authenticity of corporate documents. (1) He refused to take the oath on the grounds that the prosecutor was not licensed to practice in that state. After this refusal, Bunn added, "I have legal paperwork on all of you [grand jurors]. You need to go get legal counsel." The court reporter recorded these comments, and the district court charged Bunn with contempt for threatening the grand jury. The court issued an order to show cause based on the transcript of the grand jury proceedings and the foreman's testimony that the grand jury members perceived the comments as a threat. Bunn moved for discovery and requested the tape recording of the grand jury proceedings. Although the government did not object, it failed to produce the tape and ultimately dismissed the charges, determining that the statement on the tape was too vague to prove contempt beyond a reasonable doubt.

Though not the most egregious example of prosecutorial misconduct, this case nonetheless illustrates the lack of standards governing the conduct of investigations by federal prosecutors made prior to their charging decisions as well as the lack of guidance about the extent to which federal prosecutors should review evidence on hand or reasonably available before bringing charges. (2) Because federal prosecutors have considerable involvement in the pre-charging investigation and virtual free reign over the charging decision, (3) it is reasonable to expect that they adhere to some basic principles in conducting these investigations and in deciding what and whom to charge. (4) However, under existing standards set by the United States Constitution, the United States Department of Justice ("DOJ"), federal ethics rules, and the courts, federal prosecutors have very broad and vague guidelines to help them conduct their pre-charging investigation and exercise their charging discretion. (5) Furthermore, the enforcement of these standards by the courts, state disciplinary authorities, and the Office of Professional Responsibility (DOJ's internal review board) is minimal and generally lenient. (6)

In 1997, Congress enacted the "Hyde Amendment," purportedly in an effort to minimize prosecutorial abuse of power in the charging decision by creating a financial remedy for victims of egregious prosecutorial action. (7) The Hyde Amendment allows prevailing criminal defendants with private counsel to collect "a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith." (8) Current judicial interpretation of the Hyde Amendment standard raises the question of whether the courts' decisions interpreting the law will add to the standard of conduct for prosecutors established by pre-existing laws, regulations, and internal guidelines. Commentators are also interested in the extent to which the Hyde Amendment effectively deters prosecutors by introducing financial considerations to the charging decision.

Part I of this Comment describes federal prosecutors' broad charging discretion and the resulting potential for abuse. This Part then examines and critiques the standard of conduct set for federal prosecutors by the United States Constitution, the courts, the DOJ, and ethics rules. Finally, this Part reviews and assesses the various enforcement mechanisms used to insure compliance with the standards of conduct set by these various sources. Part II discusses how current interpretations of the Hyde Amendment have failed to establish a standard of conduct for federal prosecutors different from that established by pre-existing laws, internal regulations, and ethics rules. This Part then considers the effectiveness of the Hyde Amendment as a deterrent mechanism and analyzes the Hyde Amendment's success as a remedy for prevailing criminal defendants. Part III argues that the Hyde Amendment offers the courts an important opportunity to issue opinions detailing how federal prosecutors should exercise their charging discretion.

1. PROSECUTORS' DISCRETIONARY POWER: WRONGFUL CONVICTIONS AND CURRENT REGULATION

   1. The Breadth of Prosecutorial Discretion

      Federal prosecutors wield an enormous amount of power with broad discretion and few constraints or guidelines. (9) Federal prosecutors have the authority to bring charges, decide what charges to bring, make sentencing recommendations, and control the plea bargaining process. (10) The decision to charge, in particular, puts the federal prosecutor in an extremely powerful position. (11) The Principles of Federal Prosecution ("Principles"), the internal manual for the DOJ, only requires a federal prosecutor to demonstrate probable cause by finding that an individual has likely committed a federal offense before deciding to bring charges. After finding probable cause, the federal prosecutor has discretion in deciding which steps to take next in pursuing an investigation or prosecution. (12) Generally, commentators and courts list the same reasons for allowing prosecutors such broad discretion: the need to efficiently use limited resources; prosecutorial expertise in making discretionary decisions; the danger of chilling law enforcement efforts;

      the potential need for leniency; the danger of a potential increase in frivolous claims by defendants, and the harm to effective crime control a lack of discretion might induce. (13)

      The broad discretion given to federal prosecutors in making the charging decision can result in innocent people losing their freedom. (14) While conviction and sentencing to prison or death is certainly the worst result of prosecutorial abuse of power, the effect of a grand jury subpoena alone can be devastating. (15) Federal prosecutors' exercise of broad discretion in the charging decision has led to convictions and death sentences for defendants despite the existence of evidence demonstrating their innocence. (16) This broad discretion also has allowed prosecutors to pursue investigations relentlessly despite lacking cause to do so (17) and has even permitted them to press charges they subsequently dismissed. The following section reviews the federal prosecutors' standard of conduct established by various sources and explains how wrongful convictions are made possible because of limited guidance as to what is a legitimate exercise of the charging power. (18)

   2. Current Standard of Conduct for Prosecutors

      1. The Judiciary

         Courts have limited authority to establish a standard of conduct for prosecutors. The constitutional standard prohibiting selective or vindictive prosecution (19) sets a high burden of proof for defendants to satisfy before they may bring a claim in an effort to have their convictions dismissed. (20) Because of the high standard, very few defendants are able to bring constitutional claims and even fewer prevail. (21) Courts also have a general supervisory authority, which allows judges to set procedural standards in their courtrooms "to deter governmental misconduct and preserve judicial integrity." (22) However, the Supreme Court has construed that judicial authority very narrowly. (23) Therefore, judges have little ability to set a standard of conduct for federal prosecutors, as their ability to enforce a standard is severely limited.

      2. The Criminal Justice System: Indictment

         Despite the limitations on courts in establishing and enforcing a standard of conduct, the justice system as a whole sets standards for the different phases of prosecution. In order to obtain an indictment and pursue prosecution, the federal prosecutor must demonstrate to a grand jury the existence of probable cause for pressing specific charges against defendants. (24) To satisfy the probable cause standard, prosecutors must demonstrate that they have reason "to believe that the accused committed an offense." (25) The prosecutor need only present inculpatory evidence to the grand jury. (26) Additionally, only the prosecutor presents evidence to the grand jury, making it difficult for jurors not to take the prosecutor's side. Across the board, practitioners acknowledge that if the prosecutor wants a grand jury indictment, the prosecutor will get one. (27) Federal prosecutors and government officials even admit that the probable cause standard fails to act as a screening mechanism. (28) Although the general public perceives the grand jury system as an institution designed to weed out improper and unwarranted prosecutions by requiring proof of probable cause, in reality it is a "rubber stamp" for the prosecutor's charging decision. (29)

      3. The Criminal Justice System: Trial

         Once federal prosecutors obtain an indictment, they move to the trial phase where they must prove guilt beyond a reasonable doubt. (30) However, since the charging decision is limited solely by the easily satisfied probable cause standard, defendants may be dragged through the early stages of prosecution before a thorough investigation, or the defendant's presentation of evidence at trial, makes it apparent that the evidence is insufficient to support the charges. The beyond a reasonable doubt standard may help to vindicate some defendants who are acquitted, but, sometimes, acquittal brings little satisfaction after a lengthy investigation and indictment. (31)

      4. Department of Justice

         In the Principles, the DOJ "provide[s] Federal prosecutors [with] a statement of sound prosecutorial policies and practices for particularly important areas of their work." (32) According to the Principles, federal prosecutors should prosecute if they believe an individual's conduct constitutes a federal criminal offense and the evidence is sufficient to obtain and sustain a conviction. (33) Federal prosecutors should not pursue a prosecution if "[n]o substantial Federal interest would be served by prosecution; [t]he person is subject to effective...