When prosecutors become defendants

The judge in the Ted Stevens corruption trial has issued a sweeping order that threatens to put the prosecutors behind bars instead of the defendant.  After the Department of Justice had to petition the court to dismiss the charges against the former Senator from Alaska due to serious prosecutorial misconduct, Judge Emmet Sullivan decided to clean house himself.  Rather than rely on the DoJ to investigate the prosecutors, Sullivan appointed a special investigator answerable to himself to determine whether the prosecutors should face criminal charges — and prison time:

During and after the trial, the judge reprimanded prosecutors several times for how they had handled evidence and witnesses. He chastised prosecutors for allowing a witness to leave town. He grew more agitated when he learned that prosecutors had introduced evidence they knew was inaccurate, and he scolded them for not turning over exculpatory material to the defense.

After the trial, an FBI agent came forward to complain about the conduct of prosecutors and another agent. And in February, Sullivan held three prosecutors in contempt for not complying with an order to produce documents connected to an investigation of the FBI agent’s allegations. The judge said the most recent allegation linked to prosecutors’ notes was “the most shocking and serious” so far.

Sullivan asked Holder to better train prosecutors in how to handle evidence and witness statements that may be helpful to defendants.

He identified those being investigated for potential contempt violations as four lawyers with the public integrity section: William Welch II, who heads the unit; Brenda Morris, the lead prosecutor on the Stevens case; Nicholas Marsh and Edward Sullivan; and two federal prosecutors from Alaska, Joseph W. Bottini and James Goeke.

To investigate the allegations, Sullivan appointed Henry F. Schuelke III, a former federal prosecutor who the judge said is known for his “fairness, integrity and sound judgment.” Schuelke declined to comment.

Under Sullivan’s order, Schuelke will review records and e-mail and will interview prosecutors, FBI agents and key witnesses. He will then recommend whether any prosecutors should be tried on charges of intentionally violating Sullivan’s orders or rules on handling evidence. The judge could hold a trial in which Schuelke acts as the prosecutor.

People call the American justice system adversarial, but prosecutors represent the People and have to work in the interests of justice.  That means that they have to disclose all evidence they acquire to the defense, including that which tends to exonerate defendants.  They have to represent their case honestly in court (as do defense attorneys), and they have to make witnesses available for deposition by the defense.  Prosecutors have to meet higher standards because they are supposed to ensure that they have the right person on trial and that their case can be made beyond a reasonable doubt — and if it can’t, they’re obligated to drop the case.

Clearly, in this case, prosecutors didn’t have that kind of confidence in the evidence or their witnesses.  Why, then, did they pursue the prosecution of Stevens?  Did someone press them to take the case to trial, forcing them to cover up the holes through misconduct and misrepresentations in court?  Sullivan wants answers to these questions, and so should we.  When prosecutors run off the rails as they did with Stevens, it threatens the liberty of all Americans.  This misconduct should have serious consequences.

That doesn’t exonerate Stevens.  He was victimized by the prosecution for their misconduct, and Alaskans should object if political motivations prove to be the reason.  However, Stevens didn’t have clean hands in the Veco matter, either.  He may or may not have been guilty of a crime, but the quid pro quo looks fairly well established between Veco’s personal attention to Stevens and Stevens’ legislative attention to Veco.  Republicans should have pushed him out the door before the last election even without the prosecution.

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