The opinion
HARRY T. EDWARDS, Circuit Judge,
dissenting:
Because I believe that this matter presents a clear case of “prosecutorial misconduct” — a fact virtually conceded by the Government during oral argument on appeal — I would reverse.
This case is controlled by our decision in United States v. Smith, 478 F.2d 976 (D.C.Cir.1973). In Smith , it was alleged that
the Assistant United States Attorney . . . had spoken to [a potential defense witness] outside of the courtroom and told him that if he took the stand, he might be prosecuted for concealed deadly weapon, [and that] he might be prosecuted as a principal ... as an aider and abettor.
478 F.2d at 977 (emphasis added). In response to this accusation, the prosecutor in Smith stated that he
felt it incumbent ... to advise [the potential witness] ... to seek an independent attorney .. . because ... he could be potentially prosecuted. . . .
478 F.2d at 977-78 (emphasis added). In ruling to reverse the conviction in Smith , this court, in an opinion authored by Judge Robb, held that:
We think the prosecutor’s warning was plainly a threat that resulted in depriving the defendants of [the witness’] testimony. The government argues in its brief that [the witness] had a right to be advised that he might incriminate himself and be subject to prosecution if he elected to testify, and the government suggests that the prosecutor was only protecting [the witness’] rights when he warned him. Even if the prosecutor’s motives were impeccable, however, the implication of what he said was calculated to transform *373 [the potential witness] from a willing witness to one who would refuse to testify, and that in fact was the result. We therefore conclude that the prosecutor’s remarks were prejudicial. As the Supreme Court of Michigan observed in People v. Pena, 383 Mich. 402, 406 , 175 N.W.2d 767, 768 (1970), “[a] prosecutor may impeach a witness in court but he may not intimidate him — in or out of court." If the prosecutor thought the witness should be advised of his rights then he should have suggested that the court explain them to [the witness]. The matter would then have been presented to [the witness] by the court without any threats or implication of retaliation.
The treatment of the witness requires the reversal of [the] conviction.
478 F.2d at 979 (emphasis added). It is submitted that, for reasons that are quite obvious, Smith is indistinguishable from this ease and thus controlling.
To my mind, the sanctity of the judicial process is at stake here. The action of the prosecutor in this case — in threatening a potential defense witness with prosecution if he took the witness stand — was coercive, abusive and a gross breach of conduct by an officer of the court. The District Court should not have tolerated this conduct, and this court should not in any way approve it. If we cannot trust officers of the court to act in accordance with the law, then the constitutional safeguards associated with criminal prosecution are worthless.
There is no doubt that members of society justly expect both police protection against those who would violate the law and adequate systems of prosecution to assess the innocence or guilt of those who are charged with crimes. However, it is equally clear that the enforcers of the law cannot be above the law in carrying out their duties. In order for our systems of law enforcement to remain legitimate, criminal prosecutions themselves always must be lawful.
We ascribe so much importance to our legal safeguards because, in our country— unlike some others in the world — we assume that a person is innocent until proven guilty, and we guarantee a full and fair trial in any criminal prosecution. When these assumptions and guarantees are abandoned or abrogated by heavy-handed prosecutors, we risk the introduction of totalitarianism into our judicial process.