GAZETTE COLUMN: DO WE KNOW AN UNJUST PROSECUTION WHEN WE SEE ONE? by John P. Flannery

We all know presidential candidate, former Senator John Edwards, had an affair with self-styled avant-garde film-maker, Rielle Hunter, that they made a baby while Edwards’ wife was battling cancer, that Edwards first denied it was his child, that Edwards’ loyal friend, Andy Young, said it was his, and, finally, Edwards admitted, yeah, that’s my child.  Thus have we removed all doubt that Edwards is a despicable human being

But was any of this a crime?  More to the point, was it a federal campaign violation because monies were received and spent to hide this affair and the Hunter love child?  In order to be a campaign funding violation, according to the law, the money had to be given “for the purposes of influencing any election for federal office.”  In addition, Edwards had to know it was a violation and intend to violate the campaign finance laws.  He had to act “knowingly and willfully” to be convicted of such a crime.

In Edwards’ favor, the Federal Election Commission (FEC), when they reviewed Edwards’ campaign filings, didn’t require that these funds dedicated to covering up the affair be reported in the campaign filings as campaign contributions. 

The North Carolina federal jury heard the government’s evidence at Edwards’ trial and heard federal judge Catherine Eagles’ instructions on the law and the jury outright acquitted Edwards on one count of receiving illegal campaign contributions, and hung on the other charges, tilted, according to press reports, toward Edwards’ innocence of all charges, prompting Justice Department sources to say that there won’t be another trial.  Truth is, there never should have been a first trial.

Nor is this debacle an exceptional case of federal prosecutors over-reaching beyond the facts and the law compromising the justice system’s claim to being fundamentally fair. 

Another example of a federal prosecution gone awry, in Florida, five-month old, Sabrina Aisenberg, was kidnapped and the federal prosecutor indicted Sabrina’s parents on secret tape recordings that the prosecution claimed showed that the parents had kidnapped the child. 

The grand jury was told these statements were overheard on the tapes.  But, in truth and fact, there was no such statements on any of the tape recordings.  The court later found the probable cause to make these recordings was bogus as well.  The government was forced to drop the case because there was no evidence and the Judge awarded $1.5 million in legal fees to the Aisenberg family lawyers. 

As for the federal prosecutor, the Just Us Department suspended the responsible prosecutor for two days (a Saturday and a Sunday).  No, he wasn’t fired.  He was permitted to join another federal prosecutor’s office in Florida.  The family thought they had a slam dunk civil rights action; the court told them, however, that the prosecutor enjoyed immunity and dismissed the suit.

Earlier this year, the Justice Department admitted that its federal prosecutors engaged in misconduct in their prosecution of Senator Ted Stevens when they withheld vital evidence that “seriously damaged the testimony and credibility of the government’s key witness.”  This all came to light afterwards.  In the meantime, Stevens was convicted, lost his re-election, and then afterwards his conviction was vacated for the government’s misconduct.

To show that this is not just a few random instances of misconduct, USA Today conducted an in depth  survey and found 201 federal cases across the nation involving prosecutorial misconduct punished by the court – prosecutorial abuses that put innocent people in jail, and others that prompted the court to let some who may have been guilty go free - http://projects.usatoday.com/news/2010/justice/cases/.

The power of a federal prosecutor is enormous.  The filing of an indictment naming anyone is a personal catastrophe – no matter what happens afterwards to the Accused.  We can’t afford to have prosecutors undermining the law by breaking the law themselves.  I know I was a federal prosecutor in the Southern District of New York at a time when we believed that constitutional rights were the rules of the road and any crime had to be construed strictly and could not be charged to scare someone into pleading to something else.  But more and more, prosecutors treat these powers recklessly.  This gross prosecutorial misconduct will not stop while prosecutors enjoy immunity from prosecution themselves, and are hardly ever disciplined or even criticized when they do wrong.

GAZETTE COLUMN: A MILL WORKER’S SON – WHO LOST HIS WAY by John P. Flannery

His Dad was a textile mill floor worker in North Carolina; but he went on to become a highly successful trial lawyer, a U.S. Senator and a candidate for President; but then the golden boy became leaden, and, when not snickering or tongue clucking, we should be asking ourselves, “How did John Edwards go wrong?”

We have to take a closer look at the effect the medium, our political system, has on our elected officials who too often become servants of power rather than of the people they purport to represent, obsessed with ascending a ladder of insider privilege, increased political potency, and wide recognition and doing so at almost any financial or human or ethical cost including the abandonment of the ideology that they first espoused to get elected.

Marshall McLuhan made the oft-quoted statement, “the medium is the message,” but later allowed for its modification, re-stating his famous nostrum as “the medium is the massage,” meaning that our senses are altered, “massaged,” by the medium.

When John Edwards lost his 16-year old son Wade in a freak traffic accident in 1996, Edwards was at a loss to find a way to grieve and to honor his dead son’s memory.  He decided to run for public office because his son had wanted him to do so, and because his son wrote a prize-winning essay, “What it means to be an American,” focusing on his father’s vote at a local North Carolina fire house.

In that first Senate campaign, Edwards said, “We are a country that speaks out for those without a voice … we stand up for people.”  He promised to any and all who would join his campaign that “the folks in Washington and on Wall Street will hear you loud and clear.”  That was then.

Jeremy Larner, who wrote the academy award-winning script for “the Candidate,” insisted that politicians “don’t sell out,” but “they evolve into something else.”

We all know that wonderful morality play by Carlo Collodi, adapted to the screen as “Pinocchio,” a popular Disney classic, that featured a “pleasure” island that encouraged its island visitors to misbehave badly, to fight, to destroy, to engage in self-abusive practices, until each transformed, or devolved, into a jackass.

Edwards lost his “Jiminy Cricket” conscience, beginning his devolution, sometime after he arrived in the political pleasure island we call Capitol Hill, when he got a taste of real power.

Edwards betrayed his son’s expectation that his father would be “brave, truthful and unselfish,” the telling difference between Pinocchio being human or remaining stuck as a puppet.

Edwards falsely denied the affair that he had during his presidential bid, and made it appear that the love child he fathered was fathered by a campaign worker instead, and he funded the lie with mislabeled contributions from two close friends, pretending the monies were for furniture, rather than a cover-up.

This nation can’t trust its helm to a coward who lies about his self-centered behavior.

Unfortunately, we have a political system that corrodes the conscience of its elected officials – and routing out one bad one doesn’t address the problem we have. 

We have to reform our system -- if we hope for this nation to survive as anything resembling a democracy.

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