Prosecutors Playing a Broken Record

What do former CIA official Clair George, the four Los Angeles cops who beat up Rodney King, Clark Clifford, his co-defendant Robert Altman, and E. Robert Wallach have in common?

Each is threatened with multiple criminal trials on essentially the same charges. That may be legal, under various judge-made loopholes in the double-jeopardy clause. But it’s not fair. And it illustrates pervasive prosecutorial disregard for the spirit of the constitutional guarantee.

Prosecutors, armed with the awesome machinery of the criminal law, should be satisfied with one clean shot at a defendant, even if they miss. But more and more we see them forcing their quarry to spend years of their lives and millions of dollars to defend themselves even after winning acquittals, or near-acquittals.

Many in the press seem to see double-jeopardy rules as mere technicalities to be circumvented when they get in the way of a good show. And even the American Civil Liberties Union, understandably loath to let police brutality go unpunished, is waffling on its opposition to successive state and federal prosecutions.

But as the Supreme Court said in 1957, in Green v. United States, successive prosecutions undermine liberty by subjecting the defendant to "a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

The potential for oppression by multiple prosecution is all the more apparent in white-collar and other complex cases. With trials grinding on for weeks or months, the million-dollar defense has become a routine necessity, leaving even acquitted defendants in financial ruin after a single trial, let alone two.

Elliott Abrams, the former State Department official who pleaded guilty to two misdemeanor counts of misleading Congress in the Iran-Contra affair rather than face a felony trial, captures part of the non-rich defendant’s ordeal in his forthcoming book, Undue Process:

"When you sit around with four lawyers, and you are paying, when you add it all up, maybe twelve hundred dollars an hour, that’s twenty dollars a minute. So when someone coughed, or spilled coffee, or when we took six minutes to order lunch, I would add it up, see the meter flipping, and smile. It costs me fifty dollars for everyone to go pee, I thought. A good cough is about a buck and a half.”

Clair George now faces the prospect of going through all this again, even after a four-week trial and six days of deliberations ended with a clear majority of the jurors favoring acquittal on all nine counts. The jury hung because of a few holdouts who wanted to convict George of misleading Congress and a grand jury in order to hide the Central Intelligence Agency’s role in the Iran-Contra affair.

But Independent Counsel Lawrence Walsh and his deputy Craig Gillen rushed to announce that they would have another go at George, the sooner the better.