No More Presumption of Good Will For Unethical Prosecutors

The horrible Duke lacrosse team rape prosecution in 2006 had one very bright silver lining. It finally forced the majority of Americans to accept that prosecutors are as capable of being unethical  as any other attorney, and that because their misdeeds carry the extra weight of government power, prosecutorial misconduct must be exposed and condemned.

Thus it is a relief that the recent blatant abuse of power by Commonwealth of Virginia Attorney Martha Garst is being roundly attacked. After a student party at James Madison University in Harrisonburg, Va. turned violent and required police intervention, Garst ordered a dozen police officers to gather evidence by raiding the offices of the campus newspaper, which had photographs of the disruption. Brandishing a search warrant, police demanded all photos of the party, and were directed by Garst to threaten the staff with seizure of “cameras, documents, everything” if they did not comply. With no time to consult counsel and faced with a full-scale police raid, the staff did.

This wasn’t legitimate law enforcement, however; it was intimidation by force. The raid was almost certainly illegal, as the U.S. Privacy Protection Act prohibits authorities from searching newsrooms for unpublished materials, like notes and photographs. They may obtain a subpoena for newsroom documents or photos if there is sufficient urgency, but even then, law enforcement officials must give a newspaper reasonable time to consult with counsel and decide what to do.

The least that we must demand of prosecutors is that they obey the law. A close second is that we have to be able to trust them not to abuse their considerable power by using KGB methods and bullying college students. Once, not too long ago and before Mike NiFong got disbarred for persecuting Duke students, an incident like this would be the subject of a University complaint, a couple of meetings perhaps, and then quickly forgotten. Not any more. The National Press Club has condemned the raid, and it is becoming clear that Garst will be held accountable for her unethical strong-arm tactics.

Foolishly and naively, we used to give prosecutors a pass for these things because we assumed that they were the “good guys.” They aren’t the good guys when they abuse their power, however. The ends don’t justify the means just because they are used for fighting crime and protecting the peace. Now that we know that, prosecutorial misconduct is out of the high grass.

It’s about time.

[Thanks to Chase Martinez for the tip.]

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