In 2008, then-Sen. Ted Stevens of Alaska was prosecuted and convicted on charges that he had failed to report free work that a politically connected contractor had performed on his home.
Eight days after his conviction in federal court, Stevens was defeated for re-election.
In early 2009, however, that conviction was overturned at the request of the U.S. Department of Justice, which had discovered serious prosecutorial misconduct by attorneys in its Public Integrity Section.
A new independent investigation of that misconduct has now been released, and it is chilling. It concludes:
“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”
The details of the report make it even more chilling. Prosecutors were so determined to convict Stevens and get the scalp of a U.S. senator whom they believed corrupt that they point-blank lied to the court, to the defense and even to other members of the Department of Justice. (The report calls the lies “astonishing misstatements.”)
Prosecutors withheld crucial evidence. They allowed their witnesses to offer testimony that they knew to be false. There is also strong evidence that they pushed witnesses to fabricate last-minute testimony needed to close gaping holes in their case.
One of the few silver linings in the case is the fact that Stevens and the Bush administration that prosecuted him belonged to the same party. Had Stevens been a Democrat, this would been portrayed as a politically motivated hit job by the executive branch against a member of the opposite party, which would have created a crisis of an entirely different kind.
That also would have distracted attention from the real issues in the case, which are equally troubling in their own right:
– We need an aggressive, effective Public Integrity Section of the U.S. Justice Department; it is essential in ferreting out government corruption, especially at the state and local level where local prosecutors may be too intimidated or too compromised to take action themselves. However, actions such as these call into question the integrity of the Public Integrity Section. (It is important to stress that once other lawyers in the Justice Department began reviewing the case on appeal, they quickly discovered and reported the misbehavior of their colleagues; the Justice Department itself moved to have the conviction overturned.)
– If the defendant in the case was not a U.S. senator, the longest-serving Republican senator in history, it is questionable whether the facts of the case would ever have come to light. How many lower-profile cases in both federal and state courts are dogged by similar prosecutorial misconduct and are never discovered? When the awesome power of the government is turned against a single citizen, it is critically important that such power be wielded fairly and honestly. It is deeply troubling when such awesome power is abused.
– Despite evidence that “would prove beyond a reasonable doubt (that exculpatory) information was intentionally withheld from the attorneys for Senator Stevens,” the new Stevens report concludes that no criminal proceeding against the rogue prosecutors is possible because the legal barriers against such steps are so high.
Those barriers exist for a reason — prosecutors cannot do their job aggressively without a high degree of legal protection. But if those barriers are so high that they preclude punishment for conscious deception, fabrication and withholding of evidence, they need to be reconsidered.
As it is, prosecutors rarely suffer consequences for abusing the process. (Mike Nifong, the prosecutor in the infamous Duke lacrosse case, was eventually disbarred for his actions in that case, but such steps are rare.)
Consider a case out of Louisiana, in which prosecutors withheld blood evidence and other proof that would have helped to exonerate a murder suspect. Instead, the defendant was convicted and sentenced to death, eventually serving 18 years on Death Row and coming close to execution several times before being granted a new trial.
The truth came to light only after a junior district attorney on the case made a death-bed confession, and even then his confession was withheld for five years. In a new trial, the jury cleared the defendant after 35 minutes of deliberation.
Later, the defendant sued and was awarded $14 million in damages. But last year the U.S. Supreme Court, in a 5-4 ruling written by Justice Clarence Thomas, threw that award out on grounds that it violated prosecutorial immunity.
– Jay Bookman