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  •   Espy Loss Puts Prosecutor's Tactics on Trial

    Donald C. Smaltz
    Independent counsel Donald Smaltz. (Ray Lustig — The Washington Post)
    By John Mintz
    Washington Post Staff Writer
    Thursday, December 3, 1998; Page A6

    The acquittal of former agriculture secretary Mike Espy has again raised questions about the judgment and tactics of independent counsel Donald C. Smaltz, who staked his reputation on proving corruption in the Clinton-era Agriculture Department.

    Smaltz's defenders pointed out that he has secured several convictions against or guilty pleas from business figures who did business with the department for giving things of value to officials. As independent counsel, Smaltz also has secured $11 million in fines and court judgments.

    But Smaltz's detractors said yesterday the jury's decision confirmed the point they have made almost since he was appointed in 1994: that Smaltz has lacked perspective in spending $17 million in pursuit of Espy and people close to him for offenses such as receiving football tickets or accepting dinners.

    "Smaltz knew at an early stage of his investigation that he was woefully short of evidence that Espy compromised his position at the Department of Agriculture or did anything merely for getting some football tickets," said attorney Tom Green, who represented Don Tyson, the former Tyson Foods Inc. chairman.

    "A wise prosecutor would say, 'I better think twice about prosecuting this case,'" Green said. "Smaltz had an evangelistic approach to public life. He thought it had to be totally, irrevocably antiseptic. It doesn't have to be."

    To be sure, some lawyers defended Smaltz following his crushing loss.

    "He had a hard case, similar to many public integrity cases, where he had to rely on witnesses who loved the defendant," said John Q. Barrett, a St. John's University law professor and former Iran-contra case prosecutor. "But sometimes it's the right thing to bring a hard case. Law enforcement isn't about quantifying how many dollars you've recovered, or how many years you've sentenced."

    Smaltz, a white-collar defense attorney from Los Angeles, has become emblematic for advocates of reforming the independent counsel law. The law's critics say that it encourages prosecutorial obsessiveness because it sets no time or spending limits on investigations and because independent counsels do not operate under the checks and balances that regular prosecutors do.

    New York Mayor Rudolph W. Giuliani (R), in a discussion Tuesday with Washington Post editors and reporters, said that as a prosecutor he disagreed with the independent counsel law because counsels often bet their entire legal careers on proving one set of crimes. "It's frightening," he said, not referring particularly to Smaltz. "You see your whole career resting on that case."

    Stephen Saltzburg, a George Washington University law professor who was a high Justice Department official in the Reagan and Bush administrations, said what he characterized as Smaltz's excessive aggressiveness should prompt Congress to consider scaling back the independent counsel statute.

    "I told my evidence class the jury would do what it did" yesterday, said Saltzburg, who visited the trial. "This case was overcharged and overprosecuted, and the jury saw it. These were major charges about relatively small things. . . . It was about Espy being sloppy on his expenses."

    The 12 members of the jury – 11 black, one white – clearly sympathized with the defense lawyers and were uneasy with Smaltz, who handled much of the case personally, Saltzburg said. "But this verdict had nothing to do with race," Saltzburg said. "It had to do with a weak case."

    Lovida H. Coleman Jr., a former deputy independent counsel who investigated then-Attorney General Edwin Meese III, said Smaltz applied a "rote" logic to his prosecutions, determining to proceed based solely on whether the narrow legal elements of a crime were present. He ignored subjective questions that experienced public integrity prosecutors bring to bear, said Coleman, whose law firm represented a business targeted by Smaltz.

    "Juries look for the question: Did this defendant do wrong?" she said. "Having someone's roommate take you to a football game is not that. A prosecutor has to demonstrate there was corrupt motive in the giving or taking [of gifts]. That may be a matter of great concern, and something that should be published in the newspaper. But it may not be the stuff of criminal cases. . . . Little people wouldn't have been prosecuted for these chump charges."

    Staff writer Michael Grunwald contributed to this report.

    © Copyright 1998 The Washington Post Company

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