E-Mail This Article to a Friend Cabral’s sharp aim, continued

Based on revealing letters exchanged between McNeil and Prince between September 28 and October 7, 2005, here is essentially what the battle was all about: Porter had been funneling information to the feds even before Cabral became sheriff. When Cabral took over the office, she read the riot act to her underlings: all signs and reports of prisoner abuse had to be reported to her and her staff, she declared, with no more cover-ups, no blue wall of silence. Period. This directive extended to the jail’s medical personnel, who might come across either tales of abuse that had to be included in confidential reports to a supervisor, or signs of physical injury that they were required to include in inmate medical records for purposes of treatment as well as documentation. When Cabral learned that Porter had failed, in the sheriff’s view, to adequately document and report what she had observed, she ordered Porter barred from the House of Correction.

A long and tortured federal investigation ensued. Cabral, not one to be intimidated, appeared voluntarily before the federal grand jury to testify. Though a subject of a criminal investigation has the constitutional right to invoke the Fifth Amendment privilege against self-incrimination and refuse to testify even when she believes she is innocent, Cabral talked and talked and talked. She even waived the attorney-client privilege, opening up for federal inspection all communications between the Sheriff’s Department and its general counsel, Anne Powers. Such cooperation by a target of a federal criminal investigation, is virtually unheard of — unless the person has entered into a plea bargain.

The sheriff’s efforts to terminate the investigation went beyond supplying testimony and waiving privileges. She authorized her staff and her attorney to negotiate with the feds to change the sheriff’s written policies on reporting evidence of abuse and other problems. But these efforts broke down when the US Attorney’s Office insisted that Sheriff’s Department employees be relieved from state regulations forcing them to report abuse to the sheriff as well as to the feds. Cabral had no problem with a simultaneous report to both state and federal authorities, but she insisted that the Sheriff’s Department, which had the job of running the jail, had to be informed of abuse, even if the feds were as well.

The investigation pushed forward — until finally Prince sat down and wrote a detailed complaint to the Department of Justice’s Public Integrity Section in Washington, which has jurisdiction to investigate and discipline wayward federal prosecutors. It was obviously no coincidence that within just a few months after Prince filed his complaint, the Boston US Attorney’s Office closed down its long-running witch hunt of Cabral’s Sheriff’s Department. Noticeably stung by Cabral’s resistance and Prince’s going over the heads of Boston prosecutors and agents, Assistant US Attorney McNeil wrote a three-page letter, dated September 28, 2005, to Prince, setting forth a remarkably self-serving version of the events leading up to the closing of the Boston investigation. It is extremely unusual for a prosecutor to write such a letter when an investigation is closed without an indictment; normally the target’s lawyer is informed with a one-line note or a phone call. But McNeil explained that he was writing the letter in this case because "it has become clear over the last several months that Sheriff Cabral’s view is that this investigation has been motivated by some personal or political hostility toward her." Therefore, wrote the prosecutor, "a more detailed explanation of the course of our investigation and our decision is in order."

McNeil went on to claim that he was unable to indict either Cabral or any of her subordinates because there was not "proof beyond a reasonable doubt" that they were actually guilty of obstructing the investigation. He also made clear that the evidence did not "exonerate" the sheriff. "Indeed," McNeil wrote, "we believe that your client or others in the top chain of command likely ordered other employees of the Sheriff’s Department to bar Ms. Porter because she had disclosed information to the FBI." But there was just not enough evidence, he concluded, to meet the high standard that would be necessary to obtain a conviction at trial. McNeil concluded with a none-too-veiled threat: "if new evidence comes to light or circumstances otherwise so warrant, this letter shall not preclude this office or a grand jury from reopening this matter." Presumably, dangling the federal Sword of Damocles over Cabral’s head would serve to shut her up and thus avoid further embarrassment to the feds. McNeil did not specify, after all, what other "circumstances," besides "new evidence," might cause him to reopen the investigation. Vagueness continued to be the hallmark of the federal assault on Cabral’s authority.

Ordinarily a federal prosecutorial target who receives a "no prosecution" letter licks his or her wounds and retreats to a neutral corner of the ring. But both Cabral and Prince recognized McNeil’s letter for what it was: an attempt to spin the whole two-year ordeal in a manner that made the feds look good at Cabral’s expense. Prince smelled a rat. In a detailed seven-page reply hastily hand-delivered a week later, he wrote: "[Your letter] appears to be written for consumption and use by parties other than my client. Therefore, I cannot let it go unanswered."

Sure enough, McNeil’s letter became public when Porter’s lawyer Joseph Savage — a former federal prosecutor who Prince’s letter hints took on Porter’s case because of Savage’s friendly relationship with the US attorney’s office — filed it in Porter’s civil suit against Cabral. Were it not for Prince’s quick reply, McNeil’s version of events would be the only version out there. As it is, Prince’s suspicion about the intent of McNeil’s letter was borne out when Shelley Murphy of the Boston Globe wrote a prominent December 1 story (SHERIFF IS SAID TO RESIST AN INQUIRY) virtually parroting McNeil’s missive, despite the fact that the Globe by that time had been given a copy of Prince’s reply. Murphy devoted only two sentences to the contents of Prince’s detailed rebuttal. Indeed, the reading public would not have grasped the fruitless, vindictive, and abusive nature of McNeil’s investigation, had Boston Herald columnist Peter Gelzinis not written a column (PLENTY BEHIND US ATTORNEY’S BATTLE VS. SHERIFF) that appeared the next day. "For 28 months," wrote Gelzinis, "US Attorney Michael J. Sullivan held the threat of indictment over Suffolk County Sheriff Andrea Cabral’s head. But when the time came for the feds to put up or shut up, Maximum Mike’s office chose to shut up."

THE POWERS THAT BE

Sheriff Andrea Cabral’s frightening tale suggests that every citizen is at risk of being accused of committing a felony — thanks to virtually unfettered prosecutorial power that has only expanded with the enactment of Sarbanes-Oxley. But none of us will know it until the FBI comes knocking. It might take the ambitions of a Michael Sullivan — who was elected to the state legislature in 1990, where he served three terms, and who is rumored to be considering higher office — to trigger abuse of the powers available to the feds. Or it might take legal-career ambition: assistant prosecutors normally make their reputations from getting conviction notches on their belts and then go on to jobs at large law firms. Or such overreaching might be driven by ordinary hubris: the feds’ mere desire to flex a little muscle simply because they can.

As any student of history knows, the motives for irresponsible grabs at power are endless and often mysterious. But we do know this: the FBI and the federal prosecutors who work with them can now use dangerously vague and overly broad statutes — provided by a heedless Congress and rarely reined in by the courts — to harass any one of us. Not only new statutes, such as Sarbanes-Oxley and the laws against "material support for terrorism," but older standbys like the federal "anti-fraud" statutes are so vague that common citizens can’t figure out when they’ve crossed the invisible line. The next target might not have Sheriff Andrea Cabral’s resources and guts, or Attorney Walter Prince’s determination and skill. Not every innocent citizen can play David to the federal Goliath.

Harvey Silverglate is a criminal-defense and civil-liberties lawyer, and frequent Phoenix "Freedom Watch" contributor. Dustin Lewis assisted in the preparation of this piece.