photo: Felixco, Inc.
Convictions by John Kroger: A Prosecutor’s Battles Against Mafia Killers, Drug Kingpins, and Enron Thieves
I am going to start this review with a disclaimer. I am biased, particularly against prosecutors. I am a public defender, and through years of trench warfare I have wounds enough to have learned to have a healthy skepticism about the difficulty of getting “justice” in the criminal justice system. And I blame a lot of the problems on prosecutors. More than one prosecutor has told me he or she can’t do the right thing, or doesn’t care if my client is innocent, or if the police are lying to make a bad arrest stick.
But in Convictions: A Prosecutor’s Battles Against Mafia Killers, Drug Kingpins, and Enron Thieves, John Kroger reveals his own misgivings about the morality of the federal prosecutor’s job. He writes of a “darker side” of his job and the “ethical obstacle course” that he had to try to navigate. He saw how the FBI kept Mafia members on the government’s payroll and looked away as they continued to commit crimes; and how the DEA allowed a big drug cartel player to stay in business as long as the DEA was allowed to skim ten-fifteen percent off drug money shipments. Kroger discloses how he “secretly grew disgusted” at the moral ambiguity of the job. He became concerned about the vast power the prosecutor wields in the federal criminal system, noting that one federal judge complained that “Congress has cast the federal prosecutor in the role of God.”
Kroger adds, “we want to be idealistic, but in the end we accomplish our jobs through threats. You threaten to send your target to prison for life unless they cooperate; you threaten to send our witnesses to prison if they don’t tell the truth; you threaten your defendant’s spouse with indictment unless your defendant pleads. Over time the suffering witnesses and the suffering you cause begin to change you.”
Kroger’s frank acknowledgment of the ethical problems in the system gives him instant credibility with me. In fact, in the end, there are enough ethical dilemmas explored in the book to justify giving three hours of CLE credit simply for reading Kroger’s book.
There are enough ethical dilemmas explored to justify giving three hours of CLE credit simply for reading Kroger’s book.
The scope of Convictions is greater than the title entails. It is not just a memoir of Kroger’s key prosecutions. It is also an autobiography that reveals how Kroger grew up in a dysfunctional family, was an alcoholic teenager and one-time thief. It describes how he joined the Marine Corps and became a Recon Special Ops member, then went to Yale and earned Masters Degree in Philosophy. After the Marines, Kroger also spent time in politics as a means to fulfill a heartfelt desire to contribute to society though public service. He was a congressional aide, and became a policy advisor to Bill Clinton, but he was troubled by the moral and political compromise. Then, finally, he went to Harvard Law and became an Assistant United States Attorney for the Eastern District of New York. There, he prosecuted some of the most significant criminal cases in American history. Eventually, burned out by the weight of the caseload and ethical burdens, he went on a two-month cross-county bicycle trek that led to a life-altering epiphany, culminating in a decision to become a law school professor. Not surprisingly, his favorite subject is jurisprudence, or legal philosophy, where he tries with his students to understand the nature of justice.
But the heart of Kroger’s book is clearly the discussion of his key criminal prosecutions. And he draws the reader into the drama inherent in big-time crime right from the beginning. In the very first paragraph, Kroger has the bones of Sal “The Hammerhead” Cardacci in a cardboard box on his desk, and he is waiting for a verdict in a mafia prosecution. Kroger describes in fascinating detail the investigation of heinous mob crimes and the courtroom drama involved in mob prosecutions. But he doesn’t stop there. He also describes the social and historical circumstances that led to the growth of the Mafia in the first place. He first states the well-accepted premise that Prohibition created the initial incentive for illegal organizations, but then goes on to place direct blame on J. Edgar Hoover for failing to act against organized crime, suggesting that Hoover avoided time-consuming and potentially fruitless investigations against organized crime in order to bring respect to his organization by focusing on “communists” instead. This self-interested allocation of resources resulted in the tremendous growth and power of mob organizations.
Then Kroger goes on to explain “How we beat the mob.” Kroger credits RICO, the Racketeer Influenced Corrupt Organizations Act, with making successful mob prosecutions easier by allowing indictment of all defendants who belonged to the same “enterprise.” In addition, the extremely long federal sentences authorized by RICO helped federal prosecutors finally break through the Mafia’s code of silence. The Witness Protection Program also made it easier to recruit cooperating witnesses, because they could get new identities and be relocated instead of just waiting to get whacked for their betrayal. The development of wiretapping also helped the feds get evidence to corroborate cooperating witnesses. Kroger also credits broad socio-economic changes to contributing to the mob’s downfall. He points out that easy consumer credit and payday loan businesses cut into the mob’s loansharking business, government lotteries supplanted the numbers racket, and competition from Latin-American cartels displaced the mob’s European drug sources.
Drug prosecutions are also a big part of the book. In a chapter called The Dark Side, Kroger explains that “as a narcotics prosecutor I was forced to live in a murky world of moral ambiguity.” For example, he discloses that the DEA skimmed drug money from a cartel while allowing the cartel to stay in business, and used illegal wiretaps to gather evidence. Kroger writes that, “My talent was to use fear, pressure, and psychological ploys to trick, manipulate and break down suspects,” and turn them into informants. But, he felt conflicted about knowingly putting these informants at risk of facing a gruesome death at the hands of the cartel and eventually grew disgusted at what he saw, and what he did.
But again, Kroger goes beyond the specifics of his drug prosecutions and waxes philosophical. He explains, “How to win a war on drugs.” Kroger points out that the government’s $30 billion dollar a year efforts to reduce drug use by attempting to stem supply have failed. Adjusting for potency, Kroger notes that drug prices are down and demand is up since 1992. Kroger also explains that arresting one dealer or cleaning up one neighborhood is not really “success” because new dealers step in or traffickers just move to the next neighborhood. Kroger concludes that if the United States really wants to reduce drug abuse, “we have to develop a rational, well-funded national drug treatment plan.” Kroger notes that presently, however, treatment programs are chronically underfunded and politically unpopular.
The prosecution of ENRON criminals is the third major case category in Convictions. Kroger explains how he struggled initially to determine how to handle “the most significant white collar case in history.” The problem was initially the mere scale of the company. Enron and its related subsidiaries had a complex financial structure, and the FBI had seized some ten million documents. Out of necessity, Kroger and his team decided to focus on a few specific transactions, and the Enron Broadband Services (EBS). Enron executives had stated publicly that they had developed intelligent network control software analogous to Microsoft Windows and told analysts that EBS was worth 36 billion dollars. But, there was no software. EBS was just a shell. Kroger explains that to short-cut the investigation he decided to apply the same techniques he had used with mob and drug prosecutions, trying to get “flips.” Kroger acknowledges that “I made a fool of myself.” Kroger explains that corporate executives are very different from street criminals. They have more money and are better educated, and their sense of empowerment makes them less susceptible to government tricks and coercion. Plus, white collar defense attorneys know that if a case goes to trial, rather than ending early in a plea, their fees will be much higher. Consequently, Enron CEO Jeff Skilling’s lawyers reportedly billed him 54 million dollars. Eventually however, Kroger’s work resulted in the resulting in indictment of seven key executives on 221 counts of fraud, insider trading, and money laundering. Those eventually convicted included ENRON CEO Jeff Skilling and founder Ken Lay.
In the chapter “Getting Away With Fraud” Kroger goes beyond the details of the ENRON prosecution to describe the political and economic circumstances that allowed such a gigantic fraud to occur in the first place. According to Kroger, the major institutional players that should have acted to stop the fraud failed. Independent auditor Arthur Anderson failed because of greed. Members of ENRON’s Board of Directors were screened and ineffectual. Wall Street stock analysts were threatened with losing ENRON’s business; and one analyst was fired for recommended changing Enron to a hold from a buy. The SEC had inadequate resources and poor management. The SEC management goal was to maximize the number of filings reviewed, so analysts chose simpler, easier to meet targets. Even when the SEC caught a business doing something wrong, its enforcement strategy was to file and settle as soon as possible for small fines.
Regarding the ability of the system to deter fraud Kroger ultimately says, “Now I know it is hopeless.” What is not hopeless to Kroger, however, is having the will to keep fighting for justice. Convictions clearly refers not only to the court judgments entered against the criminal defendants Kroger prosecuted, but also to his own deep-seated feelings about the importance of his own public service.
Those readers intrigued by Convictions may also enjoy Indefensible, by David Feige, subtitled One Lawyer’s Journey Into the Inferno of American Justice. Feige was a public defender in New York’s state courts for 15 years. Near the end of the book that describes the drama and travails of his work in the Bronx courts, Feige writes: “There is something about the struggle of being a public defender that feels right . . . like the last bulwark between freedom and incarceration, the last hope of a population that no longer believes in hope or help.” But Feige also describes the struggle against burnout that is seemingly the almost inevitable result of a public defender’s massive case load, and front row view of persistent injustice. Of this struggle, Feige writes: “But what I still don’t know is when it’s acceptable to turn your back, to walk away from an indefensible system, to close your eyes to injustice, to surrender. What I do know though, is that while I wonder and until I’m sure, I’ll be uptown.”
Author: Ralph Dellapiana has been a trial attorney with the Salt Lake Legal Defenders for the past thirteen years.
Related posts:
Tags: A Prosecutor's Battle Against Mafia Killers Drug Kingpins and Enron Thieves, book review, Convictions, John Kroger, Ralph Dellapiana
