Pre-Trial Reforms Struggle to Balance Rights of Defendants and Crime Victims

March 26, 2021 by Tom Ramstack

WASHINGTON — As Congress struggled Friday to find the fine line between protecting crime victims and suspects in pre-trial proceedings, federal prosecutors were trying to recover from an embarrassing blunder.

In both cases, the federal government seeks to eliminate stumbling blocks to fair trials.

At a House Judiciary Committee hearing, advocates for criminal defendants talked about prosecutors who intimidate sometimes innocent people into false confessions or hide evidence from their attorneys that could win their release from jail.

One of them was a Texas man who spent 18 years on death row for a murder that later evidence showed he did not commit.

“I witnessed the nearly unchecked power of the district attorney’s office,” said Anthony Graves. 

He said he was falsely accused by another man but prosecutors did not disclose evidence that would have shown his innocence.

“My execution date was set twice,” he said.

One proposal in Congress to avoid risks that defendants might be intimidated into confessions would require police and prosecutors to videotape all their interrogations and other encounters with criminal suspects.

The Innocence Project, an advocacy organization that seeks to free unjustly convicted persons, estimates confessions coerced by police result in 28% of wrongful convictions.

“The interrogation stage offers one of the first opportunities to solve crimes,” said Sheila Jackson Lee, D-Texas, who chairs the subcommittee on crime, terrorism and homeland security.

However, it also gives police and prosecutors an opportunity to exert “disproportionate leverage” over defendants that can result in wrongful convictions, she said.

A second proposal would allow defendants to be released without posting cash bonds if they meet criteria for low risk of fleeing or committing other crimes.

The “No Cash Bail” bill pending in Congress drew a sharp warning from a woman whose son was murdered by a man who was released four days earlier by police after being arrested on an unrelated crime. He qualified for release under New Jersey’s no cash bail reform law.

“These are the types of people who are benefiting from their reform,” said June Rodgers. “No one is considering the victims and their families in all of this.”

Rep. Andy Biggs, R-Ariz., cautioned against bail reform that could release dangerous criminals.

“There is no consideration for generalized risk to our communities in releasing these prisoners,” Biggs said.

However, he agreed that more diligence might be needed to ensure prosecutors divulge to defense attorneys evidence that might show the innocence of defendants, also known as exculpatory evidence.

He mentioned the example of the late U.S. Senator Ted Stevens, R-Alaska, who was convicted of fraud in 2008 but later exonerated after a whistleblower reported that prosecutors hid exculpatory evidence.

“We don’t want to see that happen again,” Biggs said about the incident that caused a huge scandal for the Justice Department.

Meanwhile, the Justice Department is confronting another awkward incident that erupted this week, perhaps endangering one of the biggest criminal prosecutions in U.S. history.

Justice Department prosecutors are investigating the former acting U.S. Attorney for the District of Columbia because of his comments Sunday during a television interview. They said the interview might jeopardize fair trial rights of Jan. 6 rioters at the Capitol building.

Michael R. Sherwin said during an interview on CBS’s 60 Minutes that the insurrectionists could face sedition and conspiracy charges.

Sedition is a rarely invoked felony offense that refers to encouraging rebellion against the government. If convicted, defendants could spend up to 20 years in prison.

Sherwin said during the 60 Minutes interview, “I personally believe the evidence is trending toward” seditious conspiracy charges.

He added, “I believe the facts do support those charges. And I think that, as we go forward, more facts will support that.”

U.S. District Judge Amit P. Mehta called an unplanned hearing two days later on whether Sherwin’s comments on 60 Minutes and in a New York Times article showed he violated court and Justice Department rules that forbid press interviews about pending cases.

The Justice Department review is looking at whether Sherwin endangered successful prosecutions for more than 300 defendants who are charged so far and another 100 expected to be arrested soon.

Defense attorneys are seizing on Sherwin’s comments to argue their clients’ 6th Amendment rights to a fair trial might not be possible now. They seek to throw out the charges.

In one case, attorney David B. Smith, who represents a Seattle Proud Boys leader, cited 

Sherwin’s comments in a motion to the court that seeks to keep his client out of jail while he awaits trial. 

Sherwin gave prosecutors “marching orders . . . to build seditious and conspiracy charges,” Smith wrote in his motion.

Mehta said during the hearing that he was surprised to hear Sherwin discussing cases for which he previously was the top prosecutor. The Justice Department’s Office of Professional Responsibility is leading the internal review.

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