POSTED: August 22, 2016
Barbara Mancini is a Philadelphia nurse and a consultant for Compassion and Choices, an end-of-life advocacy organization
Former Attorney General Kathleen Kane has had her day in court. This is somewhat unusual as the overwhelming majority of criminal cases in the United States – up to 97 percent – are settled behind closed doors in the plea-bargaining process. There, prosecutors alone, with no judicial oversight, have the power to determine a person’s fate.
In 2013, I was falsely accused and prosecuted by Kane on the charge of aiding the attempted suicide of my dying 93-year-old father. All because I handed him his prescribed morphine at his request.
Unlike many criminal defendants, I was lucky enough to have my own defense counsel, who was determined to fight the unjust charge against me. And while my prosecution did not generate the drama of Kane’s case, it did generate significant media scrutiny.
Editorial and opinion writers across Pennsylvania harshly questioned Kane’s decision to prosecute me. And the Schuylkill County judge who dismissed my case was equally harsh in her ruling, saying Kane’s case was based on “little independent investigation, significant hearsay, including double hearsay received from third persons, speculation, and guess.”
Long before the use of plea bargains became the ubiquitous method of litigating criminal cases, U.S. Supreme Court Justice Robert H. Jackson raised cautions about the power of prosecutors. In a 1940 speech, he noted:
“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated, and he can have this done to the tune of public statements and veiled or unveiled intimations.
“The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial.
“If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. . . .
“A sensitiveness to fair play is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”
It is safe to say that humility and fair play are sorely lacking in criminal justice in the United States. Most people charged with crimes do not have the resources to fight the charges against them. They have no choice but to accept a plea bargain, fearing an even harsher penalty if convicted at trial. This results in an easy win for the prosecutor.
As U.S. District Judge Jed Rakoff wrote in 2014: “Plea bargains have led many innocent people to take a deal. People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. . . . The prosecutor has the information, he has all the chips . . . and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion.”
Even people who have the means to hire their own defense counsel suffer greatly when unjustly charged. Consider two local cases:
Walter Logan, a Radnor Township contractor, was in a contract dispute with Salem Baptist Church of Jenkintown in 2009. His lawyers would later contend that the church used its connections with Montgomery County officials to have Logan charged with theft. He fought back, the charges were dismissed, and, in a settlement agreement, then-District Attorney Risa Vetri Ferman had to formally apologize to him in a statement that said “there is no credible evidence Mr. Logan ever stole anything.” Ferman now is a Montgomery County Court judge.
Xiaoxing Xi, a physics researcher at Temple University, was accused by federal prosecutors of spying for China in a case where investigators misunderstood the science behind his work. The U.S. Attorney’s Office dropped the charges but not before he lost the chance to head Temple’s physics department and had incurred $200,000 in legal fees. “If nothing good comes out of this,” Xi told the Inquirer in May, “then we suffered so much for nothing.”
Like Logan and Xi, I, too, suffered. I was placed on unpaid leave from my job, and I incurred $104,000 in legal fees. I will always have an arrest record. Kane did not get her conviction in my case, but I was definitely punished.
I am not gleeful over Kane’s conviction for perjury and other crimes last week. However, I am glad she can no longer hurt innocent people. Testimony from her trial revealed that others who work or have worked in the Attorney General’s Office are hardly examples of moral rectitude. Nor is Philadelphia District Attorney Seth Williams, who last week reported receiving $160,050 in gifts over five years, items he had failed to list on mandatory reporting statements.
These are the people who act as judge and jury in the vast majority of criminal cases that come before them. The socially destructive cycle of arrests, prosecutions, and convictions through plea bargaining continues, giving the United States the dismal distinction of having the largest prison population in the world. For that, and for the cause of justice, I am truly saddened.