The Justice Department’s “inspector general or a similarly skilled official should do postmortems on failed cases to identify why decisions were made and who made them (this is critical), and to report annually on how much is spent on questionable but high-profile cases,” criminal-defense lawyer Abbe Lowell, who defended former Sen. John Edwards in his political-corruption case, writes in the Washington Post.
In the Edwards case, who rejected a settlement with the Federal Elections Commission or a misdemeanor charge?, Lowell asks. In the case of acquitted former pitcher Roger Clemens, who decided that following Congress's referral made more sense than relegating the issue to Major League Baseball and Hall of Fame voters? Another remedy is for bad decisions to have real costs, as they do for people who spend vast sums to defend themselves, Lowell says. The costs of these cases are hidden in the salaries of career employees and line items for “travel” and “lodging.” The now-lapsed Independent Counsel law included a provision for the reimbursement of attorneys fees for misguided prosecutions. Allowing defendants in failed cases that have little public benefit to get their fees covered would be fair to victims of prosecutorial indiscretion, Lowell says, adding, “It would also heighten public awareness of the costs of these cases and provide real incentive for the government to think twice before bringing cases.”