The Difficulty In Holding The Gov't Accountable When It Breaks The Law

from the incredibly-difficult dept

Thu, Oct 20th 2011 2:03am — Mike Masnick

We've discussed in the past how the US government likes to use claims of sovereign immunity or national security to avoid being held accountable (and/or to hide the details). This opens the system up to widespread abuse, and it's hard not to imagine that's happening. Even if the vast majority of government workers are good and honest people, the system is structured with so little recourse, that it's impossible not to expect massive abuses of power.

In one recent case, we wrote about an EPA agent who pretty much made up an entire case against a guy, Hubert Vidrine, mostly because it allowed the EPA agent to spend more time with his mistress, with whom he was working on the case. While that's one rare example of the government being held accountable (it had to pay the guy), Vidrine's lawyer wants the world to know that the legal system is basically set up to stymie every effort by folks like Vidrine to respond to bogus criminal charges by the government. The lawyer, Gary Cornwell, was kind enough to pass along a letter he recently sent to Senator Rand Paul, following the Vidrine verdict. That letter is embedded below, but there are a few highlights.

First, he points out that while the facts of the case are certainly unusual, it's unfair to say that such abuses aren't common. The fact is, we just don't know, and the system makes it extremely difficult for anyone like Vidrine to fight back, even when there has clearly been a completely arbitrary and malicious prosecution:

I write principally to convey to you my disagreement with the suggestion of David Uhlmann, former chief of the environmental crimes section at the Justice Department, as reported in the New York Times on October 4, 2011, that "fortunately, this is an isolated situation." This probably is an unusual case; but not because it reflects an isolated problem. More probably, it is an unusual case because the Federal Tort Claims Act discourages lawyers from filing malicious prosecution cases.

When Mr. Vidrine came to me in September, 2005, I filed an administrative claim with the Department of Justice, as required by the Federal Tort Claim Act. By July, 2007, DOJ had failed (for nearly two years) to take any action on the claim, so I filed the civil suit in federal court in Lafayette, LA. I then fought with the government for over 3 � more years to get access to the EPA/FBI files documenting the perjury and other acts used by government agents to secure an indictment in December, 1999, and to get truthful deposition testimony uncovering how and why they had kept the prosecution going for nearly four more years (until September, 2003), when all charges were finally dismissed because there had never been a shred of evidence that any crime had been committed. I then tried the case in June, 2011.

Cornwell is hoping that Senator Paul will consider changing the law to make it easier for people to take the government to court if they're similarly wronged:

Plainly, what happened in this case just should not happen in our country, and to minimize the number of times it happens again the FTCA should be strengthened to make it a more effective form of relief for those injured by government misconduct. Most victims of governmental abuse of power simply cannot afford to pay a lawyer to pursue malicious prosecution cases, because the standard of liability (which requires proof of the lack of �probable cause�) is high, and because malicious prosecution cases (like this one) are often complex and involve many witnesses and thousands of documents. (The government produced over 15,000 documents in this case and then argued that their extensive investigation proved that they did have probable cause and were not acting maliciously.)

Given those realities, the Federal Tort Claim Act would better serve our country�s historical interests in preserving our freedom by preventing abuses of power (1) if it allowed the Court to award punitive damages (as the Federal Court noted in its opinion in this case, stating on page 142 that �. . . given the egregious conduct displayed by an agent of the government and the devastation wrought on otherwise law-abiding citizens, had punitive damages been allowable, this Court would have awarded punitive damages in the hope of deterring such reckless and damaging conduct and abuse of power in the future;� (2) if it allowed the Court to compensate Plaintiffs for the attorneys fees they incur in prosecuting the action, (3) if it did not cap attorney fees at 25% of the Plaintiff�s recovery, and (4) if � at least in those cases which are brought solely against the United States (and not against any prosecutor personally) � it expressly allowed �malicious prosecution� claims to be based on the acts of �prosecutors.�

Of course, for the most part, it appears that the government has been trying to move in the other direction, to shield itself from the very laws it passes and requires others to follow.

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Filed Under: accountability, government

21 Comments

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Anonymous Coward, 20 Oct 2011 @ 2:23am

I believe it should be hard to prosecute anything and that unfortunately includes the government.

It should not be easy to file those things, that is why I'm appalled by laws like ACTA, Protect-crap-IP and the like.

This acts as sort of filter, where only the most egrerious shit will be ever addressed and not every single one, that sounds bad right until you realize that we don't live in a world with infinite resources, that our world is not perfect and so we should address the really bad stuff first.

Now one on the other hand I don't want the law to be easy, I want that once wrong doing was detected, those responsible be SEVERELY punished.
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Anonymous Coward, 20 Oct 2011 @ 2:25am

Sorry I mean once detected and PROVEN that wrong was committed I want those responsible to walk the plank.
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That Anonymous Coward (profile), 20 Oct 2011 @ 2:38am

Re:
But when your dealing with the Government that has the unlimited ability to drag it out, make up new rules, and then declare they are off limits to any sort of legal remedy?

While the case of ruining a mans life for years so investigator can sleep with his mistress more is right out of a romance novel, how many people with badges/power in this country misuse that office? We have a list of them here and elsewhere, and those are only the cases where someone is willing to come forward. We have seen people trying to report authorities abusing the law, being harassed by other elements of the same system to protect their own.

The "Government" has to much ability to just have blame roll off their back. It is part of the problem we see with those in power feeling untouchable and over time they behave like they are. Very rarely is the full force of law applied to them like it is others.
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Anonymous Coward, 20 Oct 2011 @ 4:27am

Justice Delayed
There is an old saying, "Justice delayed is justice denied." The injuries to Mr Vidrine were made much worse by the unconscionably long time it took to finish the case. The US justice system has huge backlogs which impose delays wherever you look.

The primary cause of the backlog is the futile "war on drugs". Alcohol prohibition failed in the 1920s. Drug prohibition is failing for the same reasons. The answer is the same too, legalize supply and humanely help the addicts.

Get the case load from the drug trade drastically reduced, then the US justice system will stop doing "justice denied" so often.
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abc gum, 20 Oct 2011 @ 5:17am

"Cornwell is hoping that Senator Paul will consider changing the law to make it easier for people to take the government to court if they're similarly wronged: "

From what I've read of the TP game plan, they want to make it even more difficult to get your day in court.
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Anonymous Coward, 20 Oct 2011 @ 6:27am

Re: Re:
Apparently not so unlimited since the guy was able to procure and acquire the proof he needed to show that he was wronged.

Was the government able to stop him from doing so?
No it made it hard, and now they should be punished for it.

I don't want to ease anything, that means others will want to ease other things and that in general means throwing out due process to accomplish that.
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Dan (profile), 20 Oct 2011 @ 6:56am

Raising punititive damages would be a waste of time
Raising punitive damages would do nothing. No possible amount of money could be a deterrent for our wasteful government. If the punitive damages where against the employee them self, not enough people would ever know of the outcome to be deterred either.
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Hephaestus (profile), 20 Oct 2011 @ 7:03am

It goes back to the european feudal justice system of high courts for the entitled, and low court for the poor. A system where the laws were applied differently to the rich and the poor. The people in government now have no respect for the constitution. They see it as a 200 year old document that has become irrelevant since "things have changed". When in reality the only thing that has changed is these people now feel the law does not apply to them.
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DCX2, 20 Oct 2011 @ 7:40am

Re: Raising punititive damages would be a waste of time
Put him in prison. For how long? How about the length of time it took from the original indictment until the malicious prosecution conviction came. In this case, that would be 1999 to 2011, or 12 years. No possibility of parole.

That would do two things. 1) Discourage people from abusing their office, because they would end up in prison. 2) Discourage the government from dragging these cases out, lest the sentence grow even larger.
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DCX2, 20 Oct 2011 @ 7:44am

Re: Re: Re:
Just because *this specific guy* was able to procure and acquire the proof does not mean TAC is generally wrong. Consider how many years, and how much money it cost in lawyer fees, in order to arrive at this conclusion.

Most people don't have that kind of time and money. That's probably why we don't hear more about this. All of those people who were wronged and had no financial ability to pursue a lawsuit are prove TAC's point.
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Anonymous Coward, 20 Oct 2011 @ 7:44am

I think the problem is that it is too easy to blame "the government" when most of the action are taken at the best of individuals. The EPA agent, example, was doing things to benefit himself, at his own behest, without any direction by "the government".

Now, I will admit, there is certainly issues when it comes to holding the very top office holders to the law, especially when they are elected officials. Thankfully, everyone up to and including the President can be impeached and have legal action taken against them. However, it should be clear, that the standards here are very high, and much remain high so that the executive branch isn't hobbled by legal actions that limit their ability to work. Clearly if the President had to be in court every day to answer various nutjob lawsuits or spend him days answering law enforcement enquiries relative to someone bitching about his motorcade route, there would be little time left to actually govern.

Hephaestus, I think the real issue these days is that everyone and their dog seems to think they can hide most of their own personal wrong doing under "free speech" or somehow use the 4th, 5th, or 8th amendments to hide, shade, or ignore the facts of their actions. People want to hold "the government" to blame for all sorts of things, while not being willing to hold themselves to the same standards. There is a horrible turn towards a "my rights are bigger than your rights" mentality that feeds off the "me me me" generation that we live in.

Glass houses, and all that comes with the rock fights apply.
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hothmonster, 20 Oct 2011 @ 9:49am

Re:
"The EPA agent, example, was doing things to benefit himself, at his own behest, without any direction by "the government"."

The problem is "the government" found out what he was doing, knew it was wrong and then covered it all up and tried their best to make the victim give up so they never had to admit any of this happened.

Surely the actions of the agent are not "the governments" fault but them allowing this kind of stuff to happen with no consequences for "the villain" is what gets people upset with "the government" and that is what turns them into the villain in this situation.

If they would have publicly raped this agent before dragging him over the coals and paid off the victim before he even tried to sue them then they would be heroes and all the blame could fall on the single agent.

But they didn't because as people have pointed out once you achieve a certainly status level, whether that be job title or money in the bank, you get to make up and follow your own laws.

"There is a horrible turn towards a "my rights are bigger than your rights" mentality that feeds off the "me me me" generation that we live in."

You mean, the my rights are equal to your rights even though you have 100x as much money as me that feeds off the stop fucking me me me generation?
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Daddy Warbucks, 20 Oct 2011 @ 10:00am

Govt Holding Govt liable (for quotas)
The push to set EU style quotes in the US Govt is helping the trend toward these atrocities.

Homeland Security has set deportation quotas at 400K per year. Ripe for abuse.
Teachers caught falsifying tests to reach quotas.
EPA quota Police maliciously prosecuting(this post) and the boondoggle of ethanol quotas.

Until we remove "quotas", not accountability, from Govt, we'll get ineffective results.
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Anonymous Coward, 20 Oct 2011 @ 11:30am

Re: Re:
I disagree with both of you, surely the actions of government agents acting on their own behest are the governments fault because that's what "the government" is: a collective of individuals acting at their own behest.
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That Anonymous Coward (profile), 20 Oct 2011 @ 3:47pm

Re: Govt Holding Govt liable (for quotas)
quotas are "easy" metrics to judge someone on.
You can just look and see if they are failing or not, and no one needs to ever worry about the system being gamed.

Tests prove nothing, but they are easily reported by the media to a public that thinks they are infallible.

My combined SAT score was just over 800, many years ago, you'd think I am a moron. Except it was 780 verbal and not so good in math. The real story is I am very smart, but have issues with some math concepts. There was no extra box or notice that I'm a dyslexic and I still outscored people with no disadvantage like mine. I am way more than an SAT score can tell you, but it was a primary metric to see if I was worthy of college.

We need to stop accepting the "easy" solutions of scores and quotas - he filed 50 cases he is a good employee, and look at the outcome instead - those 50 cases he filed, all collapsed because he made it all up.
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Anonymous Coward, 20 Oct 2011 @ 7:48pm

Re: Re: Re: Re:
And that is not necessarily a bad thing, it acts as barrier to litigation, it is a filter.

If it is hard for everyone, then I don't see the problem if it is only hard to someone then there is a problem.

Justice should be based on percentage not fixed values so it would be hard for people with money or without it no matter who is trying to use it.

Discourage the use of the legal system for settlement of things and you get a streamlined system that will be dealing with only what is really, really necessary, in which injustice will still continue to occur no doubt about it but one that will be less pervasive on our daily lifes.
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Anonymous Coward, 20 Oct 2011 @ 8:34pm

Re: Re: Re: Re:
If it was harder to bring charges against someone would have that guy been accused in the first place?

Easing laws only works to cover the bad guys that use that to exploit the system in their favour.

The problem is not that we need laws to make it easy to refute something, but that we need more laws that make it difficult to bring those charges against others.

Easing anything only works in favour of the bad people who exploit the system.
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Anonymous Coward, 20 Oct 2011 @ 8:43pm

Re: Re: Re: Re:
See making more easier to accuse others is not the same thing as making it harder to accuse someone of something.

The guy would have been wrongly accused, he would have all the legal costs involved and all the troubles until he got to the truth, why? Because the problem is that it is to easy to accuse others of things today.

So "easing" the law to make it easier to complain is not a good thing.

Strengthening the law so the creepy Romeo couldn't do it in the first place is a better solution.

If you disagree can you put forth the logic for that?
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Anonymous Coward, 20 Oct 2011 @ 8:47pm

Re: Re: Re: Re: Re:
Also everyone should think really hard about what the priorities of the law should be.

It is more important to protect the innocent or it is more important to punish bad actors inside society?

In my mind there is no doubt that the innocent are more important that trying to punish anyone, and that is why I want to make harder to accuse others even if it means some bad people could get away with it.
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Bergman (profile), 21 Oct 2011 @ 12:07am

I've always wondered how a government can claim sovereign immunity to its own laws, in particular laws that only apply to those who are sovereignly immune?

18USC242 is a very good example of a law that CANNOT be broken except by those normally covered by sovereign immunity.
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Bergman (profile), 21 Oct 2011 @ 12:09am

Re: Re: Govt Holding Govt liable (for quotas)
I know the feeling. I'm mildly autistic, so I have a nasty tendency to fail IQ tests. Depending on what weight is given in the test to communication skills, I've tested as high as 148 and as low as 72 in the past.
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