Baczynski:
By : Alexander Stocks
The process of shaping the Polish legal system to address crimes that flourish in a free market has involved the use of legal advisers. These specialists appear before the Sejm to offer legal opinions and commentary, arrange formal conferences and training seminars for policy makers, field calls from individual ministers and parliamentarians, or sometimes simply meet interested parties to discuss legal matters over coffee. Poland's resident legal adviser with the U.S. Department of Justice, 43-year-old Steve Baczynski, has spent the past five years advising the country's justice, interior and finance ministries through a department organization called "Oversees Prosecutorial Development and Training." The former assistant U.S. attorney for New York's western district, who has a background in organized crime, white-collar crime and drug enforcement, spoke to the Business Journal's Alexander Stocks about the country's legal system and its challenges. The following is an edited version of their conversation.
Q: How did you come to be a legal adviser to the Polish government?
A: In 1994, the government made a request to the U.S. Justice Department to send an attorney here to act as a consultant who'd come in from the outside and take a fresh look at their criminal procedure, criminal code, and the way prosecutors and judges function.
Q: What were some of your first assignments?
A: I first served as resident expert to the parliamentary committees that were considering changes to the penal code of criminal procedure and the enactment of the crown witness law. (In late 1997) I was asked by Justice Minister (Hanna) Suchocka to take a look at how prosecutors and the judiciary function. I did an extensive field audit and then made certain recommendations and served as an adviser in the preparation of a prosecutor's bill. I also served as an adviser to the Interior Ministry on certain changes to their wire tapping laws.
Q: How do wire tapping laws function here?
A: To obtain a wiretap, police need to obtain permission from the interior minister. It's a drawn-out process. It (also) becomes a judicious control because the interior minister doesn't have time to review all the wiretap applications. The proposal is that wiretap applications be made to an independent court.
Q: What role do you play in advising the legislature on such legal matters?
A: The decision is for the Poles to make. My role is to present them with certain experiences that the United States has had over the years, which make investigating organized crime and economic crime more productive. I've advised on certain legislation but I'm only one of probably hundreds of people who go into the mix of what ends up being a law.
Q: How closely related is Polish and U.S. law?
A: They're not closely related in the sense that Polish law emanates from an inquisitorial base. It is modeled on a system in which the judge is not only the fact finder but tends to be the interrogator in the courtroom. Prosecutors are not advocates for the government as they are in the United States. There's no corporate criminal liability in Poland, meaning that a corporation could be held criminally liable for activity.
Q: How do U.S. techniques differ from Polish ones in terms of investigating ongoing crimes or organized crime?
A: In U.S. law, prosecutors work closely with police from the get-go of the investigation. If there is an investigation of an organized crime group, I, as an attorney, will receive a phone call from the FBI (Federal Bureau of Investigation) or the DEA (Drug Enforcement Agency) and they will advise me that they are looking at a particular target. We will then sit down and devise a strategy on how to investigate. We do not distinguish between what the Poles call operations methods - wiretaps, undercover operations, controlled deliveries, that sort of thing. We view all of those as evidence-gathering methods while the Poles look at it as pre-procedural information gathering and view that as confidential. As a result, the Polish system cannot react quickly in terms of developing strategies or changing course in the middle of an investigation. We in the United States also have the ability to plea bargain. The Poles introduced a bill, which is set to expire the crown witness law. The crown witness law allows a prosecutor to plead away or dismiss all charges against the defendant who agrees to cooperate against his fellow criminals in organized crime matters. However, that particular power does not exist with respect to, for example, corruption cases. Also, Poland essentially adopted a policy of reducing most of the sentences in the criminal code. We on the other hand in the United States have gone on a road of increasing sentences. We as prosecutors have a better hammer in terms of convincing people to cooperate in return for more lenient sentences. The Poles don't have that hammer.
Q: What is your personal opinion about the ethics of crown witness laws?
A: It's a necessary evil. You cannot break up criminal organizations by using honest citizens. I mean, honest citizens are not involved in organized crime. If you want to break these groups up you have to deal with the people who are closest to the source, which often means that you need to deal with a small fish to get a bigger fish. The problem with the Polish crown witness law is it's an all-or-nothing proposition. In the United States the prosecutor will determine what is in the best interest of the case and the state in determining what type of a deal will be cut. I, as a prosecutor, catch a small fish. Let's say a small drug dealer is prepared to assist me in catching his supplier. I can make one of two decisions. I can sit down and say to him, look, you have to testify. But testimony in a case like that will often carry with it substantial expenses. I have to worry about his security. I have to worry about whether a fact finder, whether it's the judge or the jury, is even going to find him believable because obviously he has a motive to lie. In the U.S. model, if I determine (that) his testimony is necessary, then I will say that as part of your plea agreement we will recommend to the court a reduction in your sentence in return for your testimony. I can (also), however, look at the negatives and say, I want you to wear a wire. I want you to introduce an undercover agent to your supplier so that we can get into the organization. I want you to give us information upon which we can base a search warrant. And he doesn't have to testify. It could even be that we never have to reveal the identity from where we got the information that allowed us to catch the bigger fish. Consequently those expenses, such as protection, security, etc., are reduced. The Polish model requires that the co-operating defendant testify. He must testify in every case. Otherwise he can't be a crown witness.
Q: You've also advised Poland on asset forfeiture laws. Can you explain what they involve?
A: Asset forfeiture is a tool that has been very effective in the United States. The theory of American prosecutors and American criminal-policy makers has been for some time that incarcerating a defendant is not always sufficient to deter crimes that have an economic motive. What we have determined in the United States is that the forfeiture of assets is an effective method of deterring criminal activity. For example, if you smuggle drugs using an automobile, then that automobile is subject to forfeiture because it was the instrument with which the crime was committed. The Poles do not use asset forfeiture efficiently and there are a lot of reasons for that. We are in a position where, for example, if a defendant conveys an automobile to his sickly father, but he is the one who continually drives it, we can demonstrate that is a sham transaction. That is virtually impossible under the Polish model.
Q: Poland is also getting tougher on bribery, isn't it?
A: Poland signed the OECD (Organization for Economic Development and Cooperation) convention, which will make it illegal for companies to bribe foreign officials in return for favorable contracts or decisions.
Q: Why is there such a backlog of legislation in Poland?
A: Legislation has its own life and in any democracy there's a natural tendency to have a backlog of proposed laws. A court's interpretation of law in Poland is not binding in any other court and consequently everybody always reviews the law de novo and waits for the legislature to change the law. Since legislation is a cumbersome process, the backlog in some way hinders the development of law, which may need to be developed to conform to the ever-changing technologies and crime picture that confronts every market economy.
Q: In the criminal justice area, what kinds of laws does Poland need most?
A: Poland needs to look again at its code of criminal procedure. It's too cumbersome. Poland does have plea bargaining, but it's a very watered-down version, which really doesn't give prosecutors an incentive to present a plea bargain at an early enough stage. So consequently the Polish legal system wastes a lot of money and resources it wouldn't have to if it looked at that system.
Q: What would you say are the main weaknesses of the Polish legal system?
A: It's an inquisitorial model. Prosecutors are not active in the examination of witnesses. What happens in the Polish system is a prosecutor will direct the police to conduct an investigation. The police will gather evidence. It will develop evidence that's relevant, not relevant, duplicative, etc. And they'll put it in a file and send it to the prosecutor. The prosecutor acts like the U.S. grand jury in determining, "Will we indict, will we not indict?" If the prosecutor decides to indict, he prepares an indicting instrument, which is needlessly (detailed), because it forces the prosecutor to expend his resources, even in the event that there should be a plea.
Q: What is Poland's overall crime picture?
A: Poland has a rising crime rate. Overall, Poland has more economic crimes than it ever had before. There are certain types of crimes that just didn't exist because of the socialist model and the repressive government prior to 1989. Consequently, one of the costs of democracy is that there is a certain uptick in the types of crimes that are going to occur frauds, embezzlement, thefts. Organized crime was unknown in the Polish system prior to 1989 and is now taking root, but the legal system is still as it was in 1989.
