Legal News

A Purely Political Prosecution? One Take on the Fischer Homes Case

By Ashby Jones

Until a short time ago, we hadn’t heard of the Fischer Homes saga. Very interesting stuff. The short story: Three years ago, the F.B.I. raided construction sites in northern Kentucky overseeen by homebuilder Fischer Homes. In an attempt to assemble a wide-sweeping illegal-immigration case against the company and its officials, the government took documents, handcuffed Fischer Homes superintendents and locked down the company’s headquarters. The F.B.I. arrested dozens of Hispanic-looking workers and filed criminal charges against seven Fischer officials.

But in the end, nothing came of it. The company was never indicted, and charges against all the Fischer Homes employees were ultimately dropped after, federal prosecutors have said, a key witness fled, according to a May Cincinnati Enquirer story (link not available).

The Washington Post on Tuesday cleared some space for Jon Entine, a visiting scholar at the American Enterprise Institute and the author of a book on the case (yes, an entire book).

Writes Entine:

The raid came as the immigration debate was once again playing out in Congress. Media reports, stoked by government news releases, portrayed Fischer Homes as a greedy corporation cheating Americans out of jobs. . . .

The problem I discovered? The prosecutor’s facts were wrong — Fischer had no undocumented workers on its payroll and the documents confiscated in the raid showed that the company’s adherence to immigration and civil rights statutes, which limit what an employer can do even if it suspects its subcontractors have hired illegal immigrants, was exemplary. But the justice system wields enormous power, which often depends on extracting plea deals, sometimes from the innocent and often from supposedly deep-pocketed businesses.

Entine casts the prosecution as purely political, offering up plea deals which would have required Fischer employees to perjure themselves. But Fischer didn’t play ball. The company fought the government and ultimately won, though it reportedly spent more than $1 million on legal fees.

The government wasn’t quoted in Entine’s WaPo piece. But in responding to the book’s claims in the Cincinnati Enquirer piece, assistant U.S. attorney Robert McBride said the prosecution was justified. About eight subcontractors for Fischer were convicted of harboring illegal aliens. And the case-in-chief fell apart largely because a key witness fled the country unexpectedly, leaving prosecutors without time to rebuild the case.

Still, Entine sees gross prosecutorial abuse in the case:

We rarely think about the sheer magnitude of power in the hands of government attorneys. They have a fundamental responsibility not to win cases but to ensure justice. It is as much their duty to refrain from improper methods to produce a wrongful conviction as it is to use every legitimate means possible to bring about a just one. But that’s not always what happens. Often, government prosecutors have no intention of going to trial. They have perfected a more powerful tactic: exploiting the threat of business losses and manipulating the media to force capitulation.

What happens to the innocent when prosecutors abuse their power to further their careers or cater to political expediency? Think of the 2006 Duke lacrosse fiasco, which shattered the lives of many young men. Or the corruption case against Ted Stevens, the former GOP senator from Alaska . . . Or the prosecution of the accounting firm Arthur Andersen, found guilty of obstruction of justice in its audit of Enron. The criminal charges were reversed long after the company had dissolved, its 85,000 employees dispersed.

At what point do the potential public benefits of vigorous prosecution outweigh the harm when legal protections are suspended?

Most people find it difficult to hold much sympathy for corporations, often forgetting that we depend on a dynamic, competitive economy for our welfare. The victims of overzealous prosecutors and ambitious government agencies are often workers and their families, including many small-business owners who have played by the rules yet now find themselves targets — businessmen such as Henry Fischer. As Fischer says, “I hope nothing like this happens to you.”

Full post as published by Law Blog - WSJ.com on July 21, 2009 (boomark / email).