Cheating Prosecutors May Face Rare Penalties As Conviction is Reversed and Justice Department to be Investigated

April 27, 2009

It is not unheard of for the prosecution to cheat, hide evidence, manufacture evidence and generally manipulate the justice system to achieve injustice.  But in the case of former United States Senator Ted Stevens Republican-Alaska, not only was the ill-gotten criminal conviction dismissed but the Judge has vowed to investigate the Justice Department.  This is rare on both counts, especially for a Judge to pursue sanctions beyond the routine tongue-lashing.

“In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” United States District Judge Emmet Sullivan said, as he spoke for 14 minutes with thinly-veiled anger.  The trial of the former Alaska Senator was held in the District of Columbia, where Judge Sullivan sits.   Judge Sullivan appointed a special prosecutor to investigate the Justice Department lawyers who prosecuted Senator Stevens.  They repeatedly withheld evidence from Senator Stevens’ lawyers during the trial.  The trial resulted in Stevens’ conviction last October for lying on federal disclosure forms about gifts and home renovations he received from wealthy friends.  The rules of federal procedure provide for the appointment of a special prosecutor for contempt investigations, but is rarely done.

Judge Sullivan, appointed Henry F. Scheulke III of Washington, D.C., to investigate contempt and obstruction by the Justice Department lawyers.  Mr. Scheulke is a former prosecutor and experienced defense attorney who oversaw a Senate Ethics Committee investigation and influence-peddling allegations in 1989 against former New York Senator Alfonse D’ Amato.  Scheulke will investigate six career lawyers with the Justice Department, including the William Welch, chief, and Brenda Morris, deputy chief of the Public Integrity Section, an elite unit that deals with official corruption.  The other lawyers to be investigated for possible criminal charges are Joseph W. Bottini, James A. Goeke, Nicholas A. Marsh and Edward P. Sullivan (no relation to Judge Sullivan or to Brendan Sullivan, attorney for Senator Stevens).

The judge said the matter was too serious to be left to an internal investigation by the Justice Department, which had dragged its feet, he said, before looking into the misconduct.  He criticized Attorney General Michael Mukasey for not responding to complaints.  The said reaction of the Justice Department was “shocking but not surprising.”  Of course, this is the usual result of charges of misconduct by the prosecution: File 13.  Nothing ever happens, the prosecutors know nothing ever happens, so what disincentive is there not to do again.  It is similar to police who manipulate evidence: they only rarely suffer any penalties for their constant corruption of the justice system.

But Judge Sullivan did not let die the wrongdoing of these prosecutors.  He called on Attorney General Eric Holder, who dismissed Senator Stevens’ conviction on April 1st in recognition of his department’s ill deeds, to retrain all prosecutors in the Justice Department.

Some observers have remarked that, notwithstanding the wrongdoing of the Justice lawyers, there was a healthy amount of evidence incriminating Senator Stevens.  These observers suggest he has not been convicted, but he really doesn’t look innocent of wrongdoing.  Senator Stevens was defeated in his Senate reelection campaign days after the guilty jury verdict in this trial.

Regardless of the guilt or innocence of this Senator or a thousand other accused citizens, if the United States Justice Department, and its elite Public Integrity Section no less, cannot carry out its work in an ethical manner, our system of justice is corrupt.

During the five-week trial, the prosecution lawyers were repeatedly forced to admit they had not turned over materials to the defense.  Judge Sullivan even said then,“How does anyone have any confidence that the Public Integrity Section has any integrity?”  But the judge overruled defense objections, as always happens, and allowed the prosecution’s tainted case to go the jury.  Not surprisingly, the jury found the Senator guilty.  However, the surprise came when Judge Sullivan then threw out the jury verdict.  The still-further surprise came when the Judge gave notice that the wrong-doing prosecutors would not just go home to cheat again in their next trial.  This time they might have to pay some penalty for wrongdoing—for a change and for the better.  It’s about time.

Prosecution and Defense — Switching Roles

November 23, 2007

For years there has been criticism of the way we pay public defenders.  Everyone knows that public defenders have way too many cases to give enough time to each.  The pay is so bad that the public defenders in New York City recently sued the City of New York, alleging they were paid so little per case that their clients were being denied due process of law. The appellate court agreed they should be paid more, but just a little bit more.   So it remains scandalously low there and many other places.

Now retired U.S. Supreme Court Justice Sandra Day O’Conner has a suggestion.  This month she said if she had a magic wand she would try to make prosecutors and public defenders comparably paid and trained. She said she would like to see states create a staff of public lawyers “who would spend some time on both sides”.  She says we should try the English model.

In England, public prosecutors and public defenders trade positions every few years.  Today’s prosecutor is yesterday’s public defender and vice versa.  This gives the person in each position a deeper understanding of and respect for the other.

My own personal experience confirms this.  During the years I was a Assistant District Attorney and as supervisor of other Assistant District Attorneys, I observed that experienced private defense attorneys could always cross examine witnesses better than prosecutors, including me.  This is because prosecutors just do not get the experience cross examining witnesses that defense attorneys do.  I was a prosecutor for eight years, but I never got a chance to cross examine witnesses on a routine basis, the way defense attorneys do.

Of course, even after practicing as a criminal defense attorney for twenty five years, cross examination continues to be a skill that needs development and sustainment.  Every witness must be prepared for extensively with the understanding that no matter how much preparation and anticipation for a witness, the unexpected will arise.  However, thorough understanding of the facts and law of the case along with an appreciation of the particular witness will empower a defense lawyer to control the unexpected.

Switching roles, as retired Justice O’Conner suggested, would also give defense attorneys an appreciation of the skills and the role of a prosecutor.  That are some things many defense attorneys do not have because they have never served as prosecutors.  It really does make a difference, giving a defense attorney an advantage of insight into the process the prosecutor’s office follows and the strategic view each prosecutor will have.

Justice O’Conner did not have in mind the superior skills a private defense attorney develops from serving as a prosecutor.  She had in mind an improved system of public prosecution and public defense for those who cannot afford to hire their won lawyer, of better understanding and smoother cooperation between the two sides.  But those who are accused of a crime who do hire their own lawyers to defend them should appreciate how the experience of serving as a criminal prosecutor for a number of years prepares a criminal defense attorney in unique ways which enable him to serve his clients.