Stevens prosecutors under investigation
Federal judge Emmett G. Sullivan dismissed the charges against former senator Ted Stevens yesterday, and then took the additional step of assigning a special prosecutor to investigate whether the prosecutors should be charged with criminal conduct themselves for their misconduct in the case.
Judge Sullivan made some bold statements as he announced his decision, including a call to other judges around the country to take steps to hold prosecutors accountable:
U.S. District Judge Emmet Sullivan said Tuesday that in his 25 years on the bench, he had never seen anything approaching the "mishandling and misconduct" perpetrated by the government in the case of former Alaskan Sen. Ted Stevens, who was convicted on corruption charges in October.At a hearing Tuesday morning in the U.S. District Court for the District of Columbia on the government's motion to dismiss, Sullivan said Stevens' case was symptomatic of a larger trend of misconduct. The judge urged his colleagues around the country to enter exculpatory evidence orders at the outset of every criminal case, and to require that exculpatory material be turned over in a usable form.
Last week Attorney General Eric Holder asked that the charges be dismissed based on misconduct by the prosecutors, including the prosecutors' refusal to turn over notes of an interview with a key prosecution witness that contradicted his testimony at trial. In other words, notes that memorialize the fact that the witness told the prosecutor one thing and then later testified to something different at trial, which at best is evidence that the prosecutor failed to correct a fraud on the court and perjury by a government witness, and at worst is evidence of subornation of perjury by the prosecutor.
During the trial the defense asked for and was denied a mistrial more than once based on the prosecutors' attempts to manipulate the witness and alleged coaching of the witness by his attorney as he testified. The trial was riddled with problems, including allegations of inappropriate relationships between prosecutors and witnesses, the relocation of a government witness beyond the reach of defense attorneys despite a federal subpoena ordering his presence in the courtroom, and the prosecutors' refusal to turn over documents even after ordered to do so by the judge.
As much as we might wish that this were the beginning of a trend in judges holding prosecutors accountable for misconduct such as withholding evidence or knowingly allowing government witnesses to commit perjury, I don't believe it. Scott Greenfield points out that Judge Sullivan has also recently taken action in a Guantanamo case where the government withheld key evidence, demonstrating that, for Judge Sullivan at least, this is not an isolated incident. I applaud Judge Sullivan's efforts now to correct the government's unethical conduct during the Stevens trial, but the fact remains during the trial he took no real action to correct them until the Attorney General came forward and requested that the charges be dismissed. He allowed the trial to proceed and he allowed Stevens' conviction until the chief prosecutor gave him permission to do otherwise. Trial judges and appellate judges as a rule will not censure prosecutors for misconduct. Disciplinary committees will not censure prosecutors except in extreme cases. As much as I hope that judges, federal and state, will follow Judge Sullivan's example in this case, I find it highly doubtful.
Mike at Crime and Federalism believes that Judge Sullivan gave the prosecutors the benefit of the doubt, as judges tend to do for prosecutors everywhere, until he reached his breaking point:
The timing and psychology of Judge Sullivan's actions are interesting. Judge Sullivan knew about the prosecutorial misconduct in the Stevens case while the case was pending. He refused to dismiss the case. Why?Judge Sullivan gave the prosecutors the benefit of the doubt. He wanted to believe that the Public Integrity Section of the United States Department of Justice had some integrity. There is a deep need to believe that our power structures have some justice to them. DOJ went too far. They could have stopped their lies and probably have never turned Judge Sullivan off to them. They kept telling more lies. Judge Sullivan finally realized that the mistakes were not good-faith errors or incompetence. He realized that everything he had ever been told was a lie.
The prosecutors under investigation, which includes two who were members of the Justice Department's public integrity division, are: Brenda Morris, Nicholas Marsh, Joseph W. Bottini, William Welch II, Edward Sullivan, and James Goeke. In an interview with Katie Couric last night, Attorney General Eric Holder declared that he does not intend to fire these prosecutors, "unless there’s some basis for me to decide if they have something wrong." So, Holder has determined himself that they did enough wrong to warrant dismissal of the case after the conviction, yet he states that he has no basis to decide if they have done something wrong for purpose of termination?
