“Something is very rotten at the U.S. Department of Justice. No other reasonable conclusion can be drawn from an independent report on the 2008 prosecution of Ted Stevens,” wrote the Wall Street Journal.
The article slammed the failure of the Justice Department to discipline the prosecutors found guilty of misconduct.
“Most damaging to Justice’s credibility is that, three years after Judge Sullivan set aside the guilty verdicts against Senator Stevens, the department still hasn’t disciplined the men and women involved,” the article pointed out. “Nor has it instituted harsher penalties for future abuses.”
HIDING EVIDENCE THAT COULD HAVE BEAT THE CHARGES
The report released this week noted that “the prosecution in the Stevens case was permeated by the systematic concealment of significant evidence,” which would have helped Stevens beat the corruption charges.
Prosecutors also hid evidence that would have destroyed the credibility of the government’s key witness whose testimony was critical in the jury’s finding of Steven’s guilt on corruption charges.
No doubt the commission’s findings would have been balm to the soul of the disgraced 86-year old former Senator. But their report came too late for Stevens. The former Republican senator from Alaska died in a plane crash two years ago, just as the post-trial investigation into his case was about to be launched.
Stevens had served in office for 40 continuous years, until his trial on corruption charges (accepting excessive gifts and failing to report them on his disclosure forms) ended his career. After being found guilty, he was awaiting sentencing when a stunning series of twists overturned his sentence and reinstated his freedom–even prior to a judicialreview of his case.
KEY GOVERNMENT WITNESS RECANTS
The unraveling of the case began when a key government witness recanted his testimony, disclosing that prosecutors had coached him to be deceitful on the witness stand.
Thickening the plot, a former FBI agent involved in the investigation came forward with disclosures of prosecutorial misconduct.
The recanting of the government witness, plus numerous calls for a mistrial over ethical breaches during the trial itself, threatened to open a pandora’s box for the Department of Justice.
For months Judge Sullivan had warned U.S. prosecutors about their repeated failure to turn over evidence that might help exonerate the defendant. Now with a key witness recanting, he became furious.
JUDGE DIDN’T TRUST DOJ TO CONDUCT INQUIRY
Attorney General Eric Holder, sensing an unfolding fiasco for the Department of Justice, recommended that the conviction against the former Alaska senator be dismissed. Judge Emett Sullivan not only did so, but took matters much further.
In an extraordinary move, he ordered an inquiry into the prosecutors’ handling of the case. Judge Sullivan insisted that the misconduct allegations were “too serious and too numerous” to be left to an internal Justice Department investigation.
He appointed Washington lawyer Henry Schuelke to investigate whether members of the trial team should be prosecuted for criminal contempt.
Virtually the entire case against Ted Stevens hinged on the testimony of one man, William Allen, CEO of a wealthy oil services company.
To protect Allen’s credibility on the witness stand, prosecutors withheld from the defense evidence that he had bribed a woman in a separate criminal investigation to perjure herself.
Prosecutors also failed to set the record straight when Allen presented testimony which the prosecution knew was false.
The 525-page report catalogs other shameful misconduct by prosecutors during the trial, including manipulating FBI reports, doctoring up witness testimony and sending a witness back to Alaska before he could be called to testify by Stevens’s defense lawyers.
PROSECUTORS SUFFERED COLLECTIVE ‘MEMORY FAILURE’
The investigators also mocked the prosecutors for their “collective, sustained, permanent memory failure” when they were being questioned for the purpose of the investigation. They repeatedly failed to answer questions due to allegedly not having a clear memory of the events in question. Such tactics, if tried by witnesses in court, might well qualify as obstruction of justice or contempt of court.
Many find it outrageousthat although Schuelke and his co-investigators found serious, premeditated misconduct, they did not recommend any form of discipline or sanctions.
The rationale for this omission was that at the trial, government lawyers were not specifically ordered to share all exculpatory evidence.
Doing so ought to be a matter of basic legal ethics, critics say, that prosecutors should automatically feel bound by. To suggest they are immune from their ethical duties without a reminder makes a mockery of justice.
Alaska Republican Sen. Lisa Murkowski and a group called Alaskans for Justice have called for the firing of two of the lead prosecutors. Some of the members of the House Judiciary Committee’s subcommittee on crime, terrorism and homeland security, have said the prosecutors ought to be disbarred.
“I don’t understand why anyone who took Ted Stevens’ life should ever be allowed to practice law again,” said Texas Republican Rep. Louie Gohmert.
The subcommittee’s chairman, Wisconsin Republican Rep. Jim Sensenbrenner, said he wanted to see a disbarment investigation of the Stevens prosecution team. “It was probably one of the blackest incidents in the history of the Justice Department,” Sensenbrenner said.
“Mr. Schuelke’s report will be recorded by history among the darkest moments in the Justice Department’s 223 year history, Sen. Murkowski said.
“If a standing United States Senator can be treated this way, and the Justice Department can nearly get away with it, just think what happens every day to the ordinary citizen — oftentimes a small business person — who finds himself or herself trapped in the federal criminal justice system,” Murkowski said.
ABUSE OF POWER PLAGUES THE SYSTEM
The Stevens report once again drives home the alarming reality that abuse of power plagues the criminal justice system, involving the highest echelons of the Department of Justice.
“It would be nice to think these abuses were rare lapses. But we wonder what else we might learn if every DOJ prosecution was subjected to a review [when indications of misconduct abound],” wrote the Wall Street Journal.
One thinks immediately of two Alaska state legislators whose guilty verdicts were also overturned because Justice withheld evidence related to the same Mr. Allen who was the key witness against Stevens.
In another case, charges against executives at tech company Broadcom were also tossed out because federal prosecutors had improperly pressured and influenced key witnesses for the defense.
The judge, in a scathing rebuke to prosecutors, said that witnesses had been intimidated into testifying in a manner favorable to the prosecution, and that prosecutors had leaked information to the press to prejudice public opinion against the defendants.
In one of the most striking recent cases claiming prosecutorial abuse, two men who served 25 years in prison for first degree murder sued the Iowa prosecutors who convicted them.
The men, after being released from prison, accused two Iowa prosecutors of arresting them without probable cause, fabricating evidence, coercing witnesses to testify against them and withholding exculpatory evidence.
The prosecutors asked a lower court judge to dismiss the case, citing prosecutorial immunity. (Prosecutors are granted legal protection from prosecution in criminal cases they have tried in court.) But the lower court ruled that this immunity did not apply to actions that had taken place prior to the trial.
The case wound its way to the Supreme Court. Just as it was about to be heard, the two prosecutors, anticipating a negative decision, reached a settlement with the two men they had sent to jail, in what now appears to have been a blind rush to convict, if not an outright frame-up.
Although the settlement exempted the prosecutors from having to admit to wrongdoing, the $12 million they agreed to pay the two ex-convicts was seen as an implicit admission of guilt.
PROSECUTOR-TURNED-JUDGE NOW UNDER INVESTIGTION
In the most recent sensational case of wrongful conviction due to alleged prosecutorial misconduct, 60 Minutes reported that a Texas man, Michael Morton, serving a life sentence for the fatal 1986 beating of his wife, was recently freed after DNA evidence cleared him and implicated another man in the murder.
58-year old Morton, who spent nearly 25 years in jail before being cleared, was awarded nearly $2 million under the state’s compensation law.
After the shocking discovery of morton’s innocence, a special prosecutor was appointed to investigate whether the prosecutor in the case, Ken Anderson, knowingly withheld critical evidence that would have supported the defendant’s innocence.
Investigations of court officers are rare, and the one against Anderson — a rising star among young prosecutors when he handled Morton’s trial in 1987–is especially unusual since he’s now a Texas District Court judge.
At issue in the investigation is strong exculpatory evidence that was hidden from Morton’s defense.
It includes the testimony of Morton’s young son who had described the killer and said it was not his father, and reports from Morton’s neighbors that a green van casing the neighborhood and a stranger prowling the woods behind Morton’s house had been sighted in the days prior to the murder.
Had those details been disclosed, they would have gone a long way to support Morton’s assertion that an intruder killed his wife.
WIN-AT-ALL-COSTS
“Prosecutorial misconduct occupies a dark and poorly policed corner of our criminal justice apparatus,” wrote NY University law professor and ethics expert Stephen Gillers in the New York Times.
“Few people have the financial means and legal resources to mount a persuasive claim of prosecutorial misconduct. And on the infrequent occasions when courts do overturn convictions because of clear prosecutorial misconduct, the research shows that no action is taken against the prosecutors themselves.
Lack of transparency and accountability within our criminal justice system has allowed prosecutorial abuse of power and misconduct to run rampant.
For many prosecutors, the pursuit of justice has been subverted by the pursuit of convictions. These individuals easily allow their sense of ethics to be overwhelmed by the desire to win and, at times, as in the Rubashkin case, by sheer vindictiveness.
Prosecutors also tend to get carried away by their role as “avenging angels,” self-appointed guardians of justice piously uprooting corruption from the face of the earth.
Others are lured by the rewards and glory of winning a case, as in a promotion to more prestigious posts such as judgeships or quite often, to political candidacy
There is no threat of discipline, and little risk even of detection for misconduct, said Gillers, who lectures regularly on courtroom and judicial ethics to the American Bar Association.
GILLERS ON RUBASHKIN CASE
Professor Gillers’s name jumps out to anyone familiar with the Rubashkin case. He and judicial ethics expert Mark Harrison, two nationally acclaimed experts, after reviewing the government’s filings, wrote affidavits condemning what they viewed as gross violation of ethics in the Rubashkin trial.
Prof. Gillers said the prosecutors violated the defendant’s constitutional rights by hiding from him their ex parte communications with Judge Reade. They breached their obligations, he said, by discussing with her “charging strategies” and other issues pertaining to the ICE raid and investigation of Agriprocessors.
Countering the government’s defense that the prosecutors only discussed with the judge “logistics,” the prosecutors had no business discussing even logistics with the presiding judge, the ethics expert wrote in his affidavit.
“They surely cannot excuse either the failure to keep an accurate record of the communications or the failure to promptly disclose them to affected parties at the earliest practicable time,” Mark Harrison concurred in his own brief. He concluded that “the conduct of Chief Judge Reade violated several provisions of the Code of Conduct applicable to federal judges.”
LETTERS FROM CONGRESSMEN URGING REVIEW OF RUBASHKIN CASE REACH 50 MARK
Returning to the Ted Stevens case, the Department Of Justice has not yet completed its own internal report, and judging from Eric Holder’s statements, the DOJ is being cagey about when it will be completed and if the public will ever get to see it.
For Holder, stonewalling and delay tactics, on marked display in the Fast and Furious scandal, are a well-worn strategy. Despite congressional subpoenas issued months ago by senators leading the probe in the gun-running saga, the documents in question have still not been turned over to Congress.
Holder has likewise ignored separate letters from 50 congressmen demanding an investigation into the overwhelming evidence of abuse of power in the Rubashkin case.
The letters continue to come, most recently from Rep. Tom Price (R-GA) and Rep. Dave Loebsack (D-Iowa). Rep. Price currently serves as chairman of the Republican Policy Committee, and is the fifth ranking Republican in the House of Representatives.
The congressmen cited their concern over the ex parte communications between the Iowa U.S. Attorney’s office and Judge Reade. They echoed the deep unease shared by 48 congressional colleagues over indications of foul play.
Reps. Price and Loebsack urged the attorney general to open an investigation into the “allegations of misconduct by federal authorities in the prosecution of this case.”
‘PREFERENTIAL TREATMENT’ FOR RUBASHKIN PROSECUTORS
Rep. Michael Grimm (R-Staten Island/Brooklyn) was recently featured in the Staten Island Advance as one of the 50 House members who have asked the U.S. attorney general to re-examine the trial and conviction of Sholom Rubashkin.
In his letter to Holder, Grimm said the Rubashkin investigation “raises many concerns.”
While many critics have said the mere appearance of partiality on the part of the judge had tainted the trial, Rep. Grimm went further, citing actual partiality as his concern.
“I worry that prosecutors may have received preferential treatment from the judge because of the [ex parte] conversations they engaged in before the raid,” Grimm wrote.
He said he was also concerned that Rubashkin, a first-time, non-violent offender, was “punished so severely,” beyond the measures meted out to murderers and terrorists.
With the shocking disclosures in the Stevens case in the headlines, the letters about alleged misconduct in the Rubashkin case carry an added potency.
With Iowa U.S. Attorney Stephanie Rose poised for confirmation as federal judge by the Senate, and the attendant scrutiny of her role in the abuse of federal power that marked the Postville Prosecutions, could there be a more auspicious moment to demand an investigation into the Rubashkin case?
