One Rogue
It is hard to find a federal prosecutor who has truly gone rogue. In the 1930s, one prosecutor managed it--and the case went to the United States Supreme Court.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the District of Kansas, the head of the Boilermaker Union entered a guilty plea to racketeering in connection with his repeated misappropriation of union funds for personal benefit.
In the Eastern District of Virginia, two people were arrested and charged with participating in a transnational money laundering scheme. The two arrested communicated between several nations to arrange for the money to be laundered.
In the District of Massachusetts, a person entered a guilty plea to wire fraud for being part of a conspiracy that used stolen credit card numbers and identities to obtain goods and services. The fraud ran for four years and totaled $2.3 million.
One Rogue Prosecutor
Ninety years ago, a seemingly innocuous counterfeiting case began its journey to the United States Supreme Court. The Court’s decision in the case would become famous for one paragraph that defined how prosecutors have been perceived ever since. That case, Berger v. United States, demonstrates the harm a truly rogue prosecutor can do.
Harry Berger allegedly played a small role in a counterfeiting scheme. Katz was the center of this scheme. He passed the counterfeit currency to others to distribute. Berger was one of the distributors. According to Katz, Berger passed counterfeit currency to another conspirator. The United States Attorney’s Office for the Eastern District of New York charged Berger with a single conspiracy.
The issue in the case was credibility. Would the jury believe Katz when he had struck a deal with the government and believed Berger had an affair with Katz’s wife? This required the prosecution to do two things: (1) build Katz’s credibility and (2) destroy the credibility of anyone who contradicted his testimony. For the defense, Berger’s attorney called several character witnesses and Berger, himself, testified. All designed to show Berger was more credible than Katz.
During cross examination and closing argument, the prosecution broke through the bounds of adversarial norms. Henry Singer, the chief assistant United States attorney for the Eastern District of New York, handled the case. Singer was an office veteran. He was also a win-at-all-costs litigator. In his years as a federal prosecutor, he had already been admonished by courts for exceeding the bounds of proper advocacy. After the Berger case, Singer would return to private practice and find himself indicted for attempting to bribe a juror in a murder case.
On cross examination, Singer questioned Berger by misconstruing Berger’s testimony on multiple instances. In one instance, Berger testified that if Berger had not done something that someone named Godby would give Berger “the works.” Singer characterized this as Berger testifying that he would give Singer the works. He repeated the mischaracterization several times. Singer immediately followed those questions with questions about who was in the apartment when Berger was arrested. It included questions about whether Singer was there, whether the judge was there, and whether members of the jury were there. A third line of questioning focused on interactions between Berger and Singer outside the courtroom. Singer accused Berger of talking to Singer in the hall and threatening Singer. When Berger denied the meeting, Singer challenged Berger to call Singer a liar, perhaps baiting Singer to an outburst.
Singer’s misconduct continued through closing argument. At one point, he portrayed himself as having unique knowledge about the case. When a prosecution witness could not identify Berger, Singer argued that he personally knew that she knew Berger. She had simply lied during her testimony. In another instance, Singer complained that it was unfair for the defense to “twist” the government’s evidence when Singer was not permitted to question the defense evidence.
The jury found Berger guilty and his attorney appealed to the Second Circuit Court of Appeals, raising two issues. The first involved a variance between the charge and the evidence. The court disposed of this as harmless. Second, the defense sought reversal due to Singer’s misconduct during the trial. Judge Learned Hand wrote the court’s opinion only briefly mentioning the issue. When he did, Hand placed more blame on the trial judge for failing to restrain Singer. “It is indeed true that this officer failed in moderation and good taste; we might have been better content had the trial judge seen fit to keep him more closely in hand than he did.” Consequently, the court ruled against Berger.
With the Second Circuit affirming the conviction, Berger’s defense sought review by the United States Supreme Court. The Supreme Court agreed to hear the case. In its decision, the Court concurred with the Second Circuit on the variance issue but differed when it came to prosecutorial misconduct. In doing so, Justice Sutherland, writing for the Court, devised one of the most cited descriptions of the prosecutor’s role:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
The Court then applied this to Singer’s conduct finding it was clear that Singer struck foul blows. It then turned to whether the misconduct made a difference in the outcome. The Court noted the weak evidence against Berger. From this, the Court reasoned that prejudice was nearly certain. As a result, it reversed the conviction.
Singer’s conduct throughout Berger’s case demonstrates the standard by which prosecutors are evaluated. He pursued Berger with a win-at-all-costs mentality. The evidence was secondary. It was more important to win by disparaging the defendant than to present a compelling case that proved Berger’s guilt beyond a reasonable doubt. It also ties back to the modern norms of prosecutorial behavior. It seems the case was not thoroughly reviewed before it was pursued. They did not consider how to overcome weak aspects of the case. They did not consider whether the federal interest in the case was sufficiently significant. Had they done those things, it is unlikely the government would have pursued this case.
Therein lies a credible standard for evaluating federal prosecutorial conduct. Are they taking a win-at-all-costs approach? Does winning the case take precedence over an objective evaluation of the evidence? If so, the prosecutor is likely going rogue. If not, the prosecutor is more likely striking hard blows, rather than foul ones.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!