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>From http://www.usnews.com/usnews/issue/001016/mcdade.htm
I guess this
is sort of list-related.
U.S. News 10/16/00
Federally speaking, a fine kettle of fish
A new law is tying prosecutors in knots
By Chitra Ragavan
Two Octobers ago, Congress passed a funny little law. It was named after its
sponsor, Pennsylvania Republican Joseph McDade, but for the congressman,
there was nothing funny about it. The Justice Department had spent eight
years investigating McDade on racketeering charges. He was finally acquitted
by a jury in 1996, but by then McDade's health and spirits were broken. The
McDade bill was his payback to Justice. It simply requires federal
prosecutors to comply with state ethics laws.
No big deal? Not quite. In August, the Oregon Supreme Court forbade all
lawyers in the state to lie, or encourage others to lie, cheat, or
misrepresent themselves. Under McDade, the ruling now applies to Oregon's
federal prosecutors. "We've handcuffed the agents," says senior FBI official
David Knowlton, "not the criminals." The U.S. attorney for the Oregon
district, Kristine Olson, has informed the FBI and other federal
investigative agencies that she cannot OK agents or informants to assume
false identities, wear body wires, or engage in undercover activities. "In
effect," says David Szady, special agent in charge of the FBI's Portland
office, "we now have to go to a drug dealer and say, 'FBI! Would you sell us
some drugs, please?' " The FBI, Szady says, has had to suspend 50
investigations, including probes of Internet child pornographers, a Russian
organized-crime group, and a massive check-fraud ring.
Federal prosecutors despise the McDade law. David Margolis, a senior Justice
Department official and a veteran organized-crime prosecutor, says McDade
has had a major chilling effect. "Even I wouldn't go out on a limb," he
says. Justice officials are trying to gut the law before Congress goes out
of session this week. The department warned lawmakers in 1998 that
prosecutors would be lost in a morass of quirky state ethics laws-especially
during complicated multistate investigations. But defense lawyers won the
day. "Why should prosecutors be exempt from rules that apply to all other
lawyers in that state?" says Mark Holscher, lawyer for former Los Alamos
scientist Wen Ho Lee. So far, no court has dismissed a case or excluded
evidence on the basis of McDade. "These are crocodile tears," says veteran
defense lawyer Irv Nathan.
Major headache. The biggest headache for prosecutors is the American Bar
Association's controversial Model Rule 4.2, adopted by many states. It
prohibits prosecutors from contacting people represented by lawyers without
first talking to the attorneys. Remember when Kenneth Starr's prosecutors
ignored Monica Lewinsky's tearful entreaties to call her lawyer? They got
away with it because, since 1989, Justice has defied Rule 4.2.
No more. Prosecutors now say adhering to 4.2 has hurt white-collar probes,
where securing the cooperation of informers is often vital. In an
investigation of Alaska Airlines last year, company lawyers barred federal
agents from questioning employees. Sen. Patrick Leahy of Vermont says, "The
pendulum has swung too far in the other direction." But House Judiciary
Committee Chairman Henry Hyde of Illinois says he's not inclined to repeal
McDade. "That doesn't mean I'm for crooks," Hyde says. "I'm for ethical
behavior both by law enforcement and by defense counsel." Watching the fight
from the sidelines is Joe McDade, now 69. "I didn't read about it. I lived
it," he says, of prosecutorial zealotry. "The effort is not justice. The
effort is to break a citizen."
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