What to Watch for in the FIFA Case: Introduction

The recently announced case alleging corruption within FIFA, soccer's international governing body, will be prominently featured in the legal headlines in the coming months and years. That case comes at an opportune time for those interested in critiquing the American criminal justice system.

In the past, views of that system have often broken down along partisan lines -- think of, for example, Richard Nixon's get-tough-on-crime campaigns and the 1988 Willie Horton ads. But recent years have brought growing bipartisan concerns about the daunting power wielded by prosecutors and the fairness of the cases they initiate, particularly in the federal system. Based on the charges in the FIFA case and the manner in which the investigation appears to have proceeded, that case may offer an ideal opportunity to highlight some of these issues.

What would you expect to see in a properly run criminal justice system? Opinions on specific points will vary, but we could probably all agree on some basic elements such as:

  • Laws that are written and applied clearly, so people have a fair opportunity to know whether they're committing crimes;
  • Some reasonable basis for determining, when large numbers of people are potentially subject to prosecution, which ones will actually be targeted;
  • For those who are charged, a process that ensures that the evidence relied upon by the government to prove its case is trustworthy and reliable; and
  • A full and fair opportunity to gather and present evidence that could help the defendant.

I imagine those points are fairly uncontroversial, and we'd like to take for granted that they're well-established in the American system. But are they? Critics have raised serious questions about all of those elements, and my own experience as a defense attorney has given me cause for similar concern.

Before getting into the specific issues, it's worth asking whether the FIFA case is really the right vehicle to use for the discussion. The targets may not be the most sympathetic; based on the nature of the case, it's probably fair to say that most or all are far better off than those we often think of as being at risk from the system. Should we really care that much how they're treated?

Yes. Not only because they're as entitled to fairness and justice as anyone else, but because the very prominence of the case and the defendants will likely enhance the discussion. Some of the most critical issues in the criminal system are best exposed when the cases are big enough, and the litigation by both sides is aggressive enough, to bring them to the surface.

In the notorious Duke Lacrosse case, for example, it took a well-financed defense team to expose and ultimately drive from office a corrupt prosecutor. Similarly, the Ted Stevens case, fought aggressively by some of the best criminal attorneys in the world, uncovered serious problems that sparked a large-scale review of prosecutorial practices throughout the country. And when a big case leads to changes, the resulting benefits flow to those who could never afford the type of representation the spotlighted defendants got. Today, for example, even indigent defendants are benefiting immensely from the reforms spawned by the Stevens case.

Finally, seeing the enormous imbalance of power between even the wealthiest and most influential defendants and the United States government may serve as a sobering reminder. To paraphrase Georgia lawyer Bobby Lee Cook, who represented the Rockefellers and Carnegies in a suit alleging a power grab by the federal government -- if this is what they can do to the rich and powerful, what can they do to the rest of us if they're ever so inclined?

To be absolutely clear, I'm not arguing that the FIFA targets are innocent. They (or some of them) may be, or they may all be plainly guilty of every charged offense, or something in between. For purposes of this discussion, it doesn't matter. The points I'll be discussing relate to how the system treats everyone accused of committing a crime, and the analysis doesn't depend on whether any particular person is innocent or guilty.

Moreover, even after the whole process has run its course we may not know with any confidence who really did what. The lasting uncertainty over whether even a convicted defendant is truly guilty is itself one of the frustrating results of the system's flaws. At some point, we will believe that we "know," based on guilty pleas and trial verdicts, what happened. But if the system leading to those pleas and verdicts is itself suspect, any supposed certainty from those results is illusory.

Eighty years ago, the Supreme Court aptly described the federal prosecutor's unique responsibility:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

We hope, of course, that not only the FIFA prosecutors but all prosecutors throughout the country adhere to this ideal. Unfortunately, not all do -- and of even greater concern, there are rules, policies and practices built into the system that distort even those cases handled by well-intentioned prosecutors. In the posts to follow, I'll address some of these and point out where they may show up in the FIFA case.