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DiMasi Agonistes and the federal ‘justice’ system

Despite the fact that DiMasi should have immediately been given diagnostic tests and started on a treatment regimen, the feds launched him on his seven-week odyssey, during which he requested urgent medical attention at every stop, but to no avail. He was not taken to see a cancer specialist for another month after his return to Kentucky, despite yet again requesting care the day after he arrived. And, in one last sadistic twist, the Bureau of Prisons instructed doctors to cease taking calls from DiMasi's wife concerning his condition. This chronology strongly suggests that DiMasi experienced something more serious than mere negligence: in effect, DiMasi was given a possible death sentence for political corruption (or, perhaps more precisely, for not providing "helpful" testimony concerning the activities of others). One need not feel particular sympathy for DiMasi in order to see how dangerous it is to allow the feds to cross a line where they can effectively torture anybody into giving testimony that the DOJ wants to hear.

What is needed is a criminal investigation asking the same type of questions Watergate raised: who at the DOJ knew what about DiMasi's health, and when did they know it?

The federal statute books are littered with laws making it a crime, at least in theory, to intentionally mistreat a prisoner (deprivation of civil rights), as well as to take extreme steps — such as torture — to get a prisoner to give, much less to concoct, testimony (obstruction of justice and subornation or facilitation of perjury). Many federal prosecutions these days are unscrupulous stretches to "get" high-profile targets whose conviction and incarceration might build the careers of prosecutors and the institutional power of the DOJ — think John Edwards and Roger Clemens, most recently — and toying with a prisoner's health in pursuit of such ends surely deserves scrutiny in any criminal-justice system claiming to be civilized.

CRUEL AND UNUSUAL

The federal courts have long had an uneasy but in the end too tolerant attitude toward pressure applied or inducements offered to vulnerable defendants or prisoners in order to get their "cooperation." In an instructive 1988 Boston case, federal District Judge Joseph Tauro threw out the testimony of accomplice witnesses who had agreed to cooperate against some of their former cohorts pursuant to a plea agreement. Under the agreement, the accomplice witnesses would be rewarded with leniency if their cooperation assisted in convicting the defendants who insisted on going to trial rather than pleading guilty. The government promptly went to the Court of Appeals, which reversed Tauro's exclusion of the cooperators' testimony despite the appellate court's expressing "concern and uneasiness . . . over the coercive potential of these plea agreements." The court's "uneasiness" with the enormous pressure put on the witnesses to perform was overcome, in the judges' own words, because the coercive cooperation practices were "so firmly established" that their cessation could cause the collapse of the whole federal approach to obtaining testimony. (That the system developed by the DOJ for producing incriminatory testimony was corrupt to its core did not deter the court.)