Chief Justice Roberts, former Justice Department official, heaps criticism on US prosecutors

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WASHINGTON — For a conservative lawyer who once worked in the Justice Department, Chief Justice John Roberts is making criticism of federal prosecutors a regular thing at the Supreme Court.

In his latest remarks about Justice Department lawyers, Roberts said Tuesday that federal prosecutors use a part of the federal bank robbery law to "extort" a guilty plea from defendants.

Roberts was questioning Justice Department lawyer Brian Fletcher at a Supreme Court argument over the provision of the law that includes a mandatory 10-year minimum prison term for a suspect who forces another person to accompany him during the robbery or in trying to elude police. The justices were wrestling with whether the distance traveled matters in figuring out whether the provision applies.

The measure gives prosecutors powerful leverage over defendants, who might not want to risk the 10-year term at trial, Roberts said.

A suspect might walk 2 feet with a bank teller, Roberts said, "and the prosecutor is armed with another 10 years automatically in his pocket, and then you use that to extort a plea bargain of, you know, six years, somebody who might otherwise wanted to go to trial."

Obtaining guilty pleas from defendants is no theoretical matter. More than 9 in 10 convictions in the United States come through guilty pleas.

A prosecutor has plenty of leverage when a defendant uses a gun, or assaults bank customers or employees during a robbery, Roberts said. But a case without those elements "is exactly where the prosecutor needs another ace in his hand," he said.

Roberts worked in the White House counsel's office in the Reagan administration, then served as a top Justice Department lawyer under President George H.W. Bush. After roughly 10 years in private practice, Roberts became a federal appeals court judge in 2003 and chief justice two years later. President George W. Bush nominated him to both posts.

Roberts still often sides with the government in criminal cases. But he has been sharply critical of the Justice Department, especially in recent years.

In June, Roberts wrote the opinion for the court that overturned the conviction, under the federal anti-chemical weapons law, of a woman who used toxic chemicals that caused a thumb burn on a friend who had become her husband's lover. He said prosecutors had overreached.

"In sum, the global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon," Roberts said.

Last month, the chief justice was firmly in the camp of the skeptics in a case over the use of a federal law passed in the wake of the Enron accounting scandal against a commercial fisherman who was convicted of destroying evidence — undersized red grouper that he ordered his crew to toss overboard.

"You make him sound like a mob boss or something," Roberts said to Justice Department lawyer Roman Martinez during arguments over the conviction of fisherman John Yates.

Last year, Roberts spoke of "the overweening power of the government" in an argument over whether criminal defendants whose assets had been frozen by prosecutors had a right to a court hearing to try to gain access to the money they needed for their legal defense. Roberts dissented from the court's decision against a New York couple who had been indicted on charges that they stole medical devices.

The chief justice has taken a more sympathetic view of local prosecutors. In one instance, he was part a five-justice majority that overturned a $14 million judgment given to a former death row inmate who was convicted of murder after New Orleans prosecutors withheld evidence in his trial.


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