Justice Department Takes Notice

While the International Olympic Committee is investigating the Salt Lake City payoffs for its own housecleaning, the U.S. Jus­tice Department is taking a look, too. Whether the federal Foreign Corrupt Practices Act, on which the convention is modeled, might be used to bring criminal charges is a gray area at the early stages of investigations. The federal act concerns bribery of public offi­cials, and the Olympic committee is private.

However, “Some of the ingredients in this scandal appear to be FCPA violations”, says Stanley Marcuss, who was a Senate Banking Committee staffer involved in crafting the legislation en acted in 1977. Marcuss, a partner in the Washington office of Bry­an Cave, is director of the big-business Coalition for Fair Interna­tional Business Practices.

The federal law came on the heels of U.S. business involve­ment in scandals in Japan and Europe.

If criminal charges were to be filed against some of those involved in bringing the 2002 Winter Olympic Games to Salt Lake City, says Marcuss, “That would do an awful lot to get people to sit up and take notice that the FCPA can have pret­ty wide ramifications-especially now with the bribery conven­tion and other countries preparing to enact their own Versions of the law”.

The corrupt practices act had amounted to unilateral disarma­ment for U.S. businesses competing in not-always-ethical world trade. Now it might provide guidance to other countries as they deal with the Olympics scandal and craft their own anti-corrup­tion laws to comply with the convention.

It was the lopsided effect the act had on American businesses that prompted U.S. officials to push for the convention.

“The convention is a tremendous breakthrough,” says Fritz Heimann, who wears several hats. He is a special counsel to the general counsel of General Electric Co., and a member of an advi­sory committee to an Organization for Economic Cooperation and Development working group that will monitor various nations' legislative efforts to ensure they comport with the convention.

He also is chair of the U.S. chapter of Transparency Interna­tional, a private organization working in more than 70 countries to increase government accountability and curb international and national corruption.

The Olympics scandal, he says, highlights one of the key issues in combating bribery. “I find it incredible that some committee members use the ancient argument that there are cultural differ­ences concerning bribery”, Heimann says. “Bribing senior officials is a crime wherever it occurs, and that it's always done in secret makes the cultural argument nonsense”.

TEXT 20

Going Gangbusters

Three years ago, California prosecutors came up with a new tack to fight youth violence: Obtain injunctions barring gang ac­tivities.

One civil injunction was issued against 138 alleged members of two San Jose street gangs. It prohibited conduct generally associat­ed with gang activity such as drinking, vandalism, possessing weap­ons, using drugs, using gang hand signs, appearing with known gang members, applying graffiti and using beepers in public.

Los Angeles County deputy district attorneys obtained civil injunctions against gang members in six other cities, including Los Angeles. The orders often imposed a curfew and, in an ef­fort to stop drug sales near apartment buildings, forbade tres­passing on private property. A Pasadena injunction went fur­ther, prohibiting gang members from carrying pagers, cellular telephones or walkie-talkies.

Constitutional Questions

While prosecutors say their tactics are a good way to fight gangs, some courts and critics have voiced concerns about the con­stitutionality of such measures.

The California Supreme Court will soon add its voice to the debate, as it considers the San Jose injunction in People v. Acuna, No. HO11802.

In a decision last year, a California appellate court struck down part of the injunction, upholding only the bar on criminal acts. The remaining prohibitions were held to be overbroad, vague and an infringement on free speech.

San Jose City Attorney Joan R. Gallo says her office is await­ing the latest ruling before applying for more gang injunctions. Currently, the city has two that are outstanding, including the one being considered by the state supreme court.

Chicago's legal department also has reviewed the civil injunc­tion tool but is waiting until the Illinois Supreme Court hears an appeal of a decision striking down the city's gang loitering ordi­nance, City of Chicago v. Youkhana, 660 N.E.2d 34 (1995).

An Illinois appeals court held the measure infringed on free­doms of association, assembly and expression; criminalized the sta­tus of being a gang member; and permitted police officers to avoid probable cause requirements.

Some prosecutors have been unsuccessful at the trial level as well. In a Los Angeles County case, a judge issued a temporary restraining order aimed at gangs in Westminster, but refused to grant a preliminary injunction.

The setbacks have not dampened the enthusiasm of prose­cutors for the injunctions, which are enforced with the con­tempt remedy.

“The San Jose injunction had an immediate effect, sending gang members packing from a foursquare-block area that they had taken over,” says Gallo.

And in an interview, Los Angeles District Attorney Gil Garcetti proclaimed his community-based gang-fighting program “a phenomenal success.” He says it is his belief that the injunctions his deputies have obtained will pass constitutional muster because they are more specific than the San Jose order.

His office has since applied for injunctions in two other cities, one of which is Inglewood, home of the Los Angeles Lakers.

Deanne Castorena, the Los Angeles deputy district attorney who obtained the county's first injunction in Norwalk two years ago, says many community members support the program and have come forward with affidavits.

The Los Angeles County effort is part of a larger program being called Strategy Against Gang Environments. Part of that strategy involves sending gang prosecutors from the district attorney's office to cities where they set up an office. Once they arrive, they begin working with police, notifying them of gang members' parole and probation restrictions. These can include the waiver of Fourth Amend­ment requirements, permitting them to be searched without cause.

Not everyone is as enthusiastic about using civil injunctions to control gang activity. Houston City Attorney Gene Locke says he declined to use the strategy, and instead opted for the “more traditional legal measures” such as prosecuting gang members in­dividually for violating nuisance laws.

Locke says his office was concerned about possible liability for civil liberties violations, the overall effectiveness of injunctions, and the cost of such a program.

Others say the injunctions could result in broad sweeps of eth­nic and low-income neighborhoods. “Innocent kids [will] get ar­rested because they look like gang members,” says one govern­ment attorney who refused to be identified.

TEXT 21

Crazy Talk

Can killers be cunning and methodical, yet so mentally ill they aren't fully responsible for their crimes?

Psychologists say yes, but jurors overwhelmingly say no. And that may bode poorly for Unabomber suspect Ted Kaczynski, who is standing trial for four of the 16 mail bombings attributed to the Unabomber over 17 years.

Jurors tend to think of an insane person “as someone who's living on Mars and wouldn't begin to know how to put a bomb together,” says Scott Sundby, a law professor at Washington & Lee University in Lexington, Va. Sundby has interviewed 152 cap­ital-case jurors in California for a death penalty research project.

Kaczynski's defense attorneys, Quin Denvir and Judy Clar­ke, may be asking jurors to challenge that traditional view. They gave notice in June that they will present expert testimony about Kaczynski's mental condition during his trial for the murder of two people, which was set to begin in November in U.S. District Court in Sacramento.

In theory, mental illness evidence could form the basis of an insanity defense or – if Kaczynski is convicted of murder – provide a mitigating circumstance to persuade jurors to spare his life.

But Sundby and other experts say it is extremely hard to sway jurors with mental illness evidence, even in what is considered an ideal case. And Kaczynski's case is far from ideal.

Prosecutors say FBI agents who searched the Montana cabin of the mathematics professor-turned-recluse found an assembled bomb, a Unabomber manuscript and a journal discussing the bombings.

The federal insanity defense has been regarded as a tactic of last resort since 1984 when the Insanity Defense Reform Act was passed by Congress.

The law compels defendants to prove by clear and convincing evidence that a “severe mental disease or defect” left them unable to “appreciate ... the wrongfulness” of their actions. The previous test required prosecutors to prove sanity.

Only 1 percent of defendants plead insanity, according to the American Academy of Psychiatry and the Law. It published a study of about 9,000 cases in 49 counties between 1976 and 1987. About 26 percent of those defendants were acquitted, mostly in cases where prosecutors agreed to the plea. Only 7 percent of ac­quittals came from jury trials, the study found.