Was The Fischer Homes Prosecution About Publicity, Not Justice?

Jon Entine writes this about federal prosecutors:

We rarely think about the sheer magnitude of power in the hands of government attorneys. They have a fundamental responsibility not to win cases but to ensure justice. It is as much their duty to refrain from improper methods to produce a wrongful conviction as it is to use every legitimate means possible to bring about a just one. But that's not always what happens. Often, government prosecutors have no intention of going to trial. They have perfected a more powerful tactic: exploiting the threat of business losses and manipulating the media to force capitulation.

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Entine offers that analysis in the context of his commentary about the misguided prosecution of Fischer Homes after a well-publicized raid by ICE:

Three years ago, with TV crews rolling, police helicopters swooped down on construction sites in northern Kentucky overseen by Fischer Homes, one of the 100 largest U.S. home builders. SWAT teams arrested 76 Hispanic-looking workers. Armed agents handcuffed and shackled four Fischer superintendents at dawn at their homes.

Criminal charges against Fischer employees of harboring illegal immigrants, and a threatened charge of money laundering against the corporation, were in Entine's opinion unfounded:

Fischer had no undocumented workers on its payroll and the documents confiscated in the raid showed that the company's adherence to immigration and civil rights statutes, which limit what an employer can do even if it suspects its subcontractors have hired illegal immigrants, was exemplary.

The charges were all dropped, and the company was never indicted, although some of Fisher's subcontractors were convicted of harboring illegal aliens.

To be fair, Entine's view of the case might be tainted by this:

In 2006 he worked as a consultant, researching immigration politics, for a media relations company hired by Fischer Homes.

The prosecutor handling the case claims that the charges against Fischer's employees were dropped "because a key witness fled the country unexpectedly, leaving prosecutors without time to rebuild the case." One might expect a case of that magnitude to be based on substantial documentary evidence and the testimony of several witnesses, including some of the convicted subcontractors, not just on the word of a "key witness" who proved to be so unreliable that he didn't stick around for the trial.

According to the public record, as reported by NPR, the government's investigation included "secretly recorded and videotaped conversations with Fischer supervisors." Those conversations apparently didn't give the prosecution enough evidence to sustain the charges. NPR also reports that the government alleged a conspiracy between Fischer and a subcontractor to hire undocumented workers, an allegation supported only by the fact that "a supervisor had the subcontractor's number on speed dial in his cell phone."

The skinny evidence in the record, the government's reliance on a single witness to make its case, and the eventual dismissals of the charges lend support to Entine's view of the prosecution, which (despite his connection to Fischer Homes) seems to be based on copious research. Moreover, Entine's description of the government's tactics rings true. This is the deal he says was offered to Fischer Homes' founder:

Plead guilty to a felony, pay a $1 million fine and your employees will be off the hook.

The government gets its money and favorable headlines, the corporation goes about its business, and everybody's happy. It happens every day.

According to Entine, when the government discovered that ICE couldn't produce the evidence to justify its case,

prosecutors increased pressure on indicted employees to agree to a plea deal -- to perjure themselves -- in return for the charges being dropped. Remarkably, they refused.

Again, to be fair, the prosecutors probably didn't ask the indicted employees in express terms to perjure themselves. But assisted by ICE agents, they may well have said something like, "Based on our investigation, this is what we think the true facts are, and if you agree those facts are true and testify to them, we'll drop the charges against you." Conversations along those lines are commonplace, and they commonly lead to perjury. Playing on a witness' self-interest is an easy way for prosecutors to get the testimony they want.

Why did this case get off the ground if, as Entine writes, Fischer was complying with the law? The TV cameras, helicopters, and SWAT teams give credence to Entine's explanation:

The raid came as the immigration debate was once again playing out in Congress. Media reports, stoked by government news releases, portrayed Fischer Homes as a greedy corporation cheating Americans out of jobs.

With Lou Dobbs and his ilk fueling anger about the supposed "crisis" of undocumented workers stealing jobs from Americans, did ICE want to put on a show, as it did in Iowa when it raided Agriprocessors and in Mississippi when it raided Howard Industries? If so, did the prosecutors assume that the threat of prison sentences, and the dangled offer of a corporate fine with a dismissal of charges against the corporate employees, would assure that they would never need to prove their case? As Entine writes, it's a tactic the government has perfected -- and it's a serious abuse of the government's awesome power to prosecute.

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    Too bad prosecutors have (none / 0) (#1)
    by MKS on Sat Jul 25, 2009 at 11:34:26 PM EST
    immunity from malicious prosecution lawsuits.

    i don't think they have (none / 0) (#3)
    by cpinva on Sun Jul 26, 2009 at 05:20:45 AM EST
    absolute immunity. there's still that whole "committing illegal acts under color of law" thing. having someone arrested and jailed, knowing they have no actual basis for doing so, that will hold water in court, would seem, on its face, to be an illegal act, subject to prosecution. and then there's the prospect of a civil suit to consider, for civil rights violations.

    i could be wrong.


    TChris, thank you ... (none / 0) (#2)
    by cymro on Sun Jul 26, 2009 at 04:02:14 AM EST
    ... even though your posts so often depress me, and make me feel helpless in the face of the powerful forces of abusive authority run amok. But please keep writing what you do, because our only hope of a creating a more just society is to keep shining a light on this kind of injustice.

    Wish he'd named names (none / 0) (#6)
    by gyrfalcon on Sun Jul 26, 2009 at 07:45:31 AM EST
    Who was the U.S. attorney who did this? (I assume a USA was in charge, no?)  Is this one of those cases Karl Rove et al would have had the guy/gal fired for if he/she hadn't pursued it aggressively?  Is this U.S. attorney still in place?

    It seems a particular shame here because according to the writer, the company was apparently being pretty meticulous about following the law with regard to its hiring.  That's a great message to send out-- No matter how careful you are, we're still gonna get you if we feel like it.

    Ugh, ugh, ugh.

    actually, i'm surprised they didn't (none / 0) (#7)
    by cpinva on Sun Jul 26, 2009 at 03:20:18 PM EST
    No matter how careful you are, we're still gonna get you if we feel like it.

    assert a RICO violation, and seize all the company and personal assets, requiring them all to prove they weren't ill-gotten gains. that's an even better way to gain compliance, even from those who've committed no crime worse than double-parking.