Prosecutorial misconduct alters the Senate
posted by Kaimipono D. Wenger
The latest news on the Ted Stevens trial is mind-boggling. Not only has the indictment been dismissed by Eric Holder and the prosecution dropped; as noted in several sources (such as the New York Times), federal Judge Emmet Sullivan is now initiating criminal contempt investigations of the Justice Department attorneys who prosecuted Stevens. Apparently those attorneys concealed exculpatory evidence and knowingly presented false testimony; Judge Sullivan is calling it the worst “mishandling or misconduct that I’ve seen in my 25 years.”
Especially troubling, I think, is the fact that the verdict in this case came down days before the general election, and Senator Stevens lost that election by 3,000 votes (out of 300,000 cast). One has to suspect that the conviction for fraud, days before the election, tipped the scales.
That is, prosecutorial misconduct is very likely to have changed the composition of the Senate in this race. I’m not a particular fan of Stevens’ politics, but I find it incredibly problematic that he lost his Senate seat in this fashion.
April 7, 2009 at 5:39 pm
Posted in: Politics
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Responses (8)
Jason Kilborn - April 7, 2009 at 6:15 pm
I’ve had it with moaning and groaning about the Stevens mess. This exact thing happens to poor, black defendants all the time. In these cases, a man’s LIFE is on the line, not just an election. Why do we care so much about injustice in the Stevens case and so little about raging prosecutorial misconduct against indigent defendants? Give me a break! If we’re going to throw the book at the prosecutors in the Stevens csae, we had better get a WHOLE LIBRARY ready to throw at the D.A.s who railroad indigent criminal defendants every day.
A.W. - April 7, 2009 at 6:27 pm
Stevens was one of the most corrupt senators around and bluntly the republicans are better off without him, even losing a majority. But yeah, this stinks to high heaven and you do have to be concerned about electorial motives, although I will say that there are good bipartisan reasons to dislike Stevens, so i wouldn’t assume a specifically democratic plot.
As for Jason, I would question how much it is done outside of high profile cases like this, and I would point out that we are potentially talking about an attempt to influence a democratic election. its hard to dismiss it as less important, seeing that literally every american was harmed in this.
John Armstrong - April 7, 2009 at 6:42 pm
IANAExpert on this case, but don’t I remember the prosecution offering a late trial date and Stevens’ specifically wanting to get it up and down fast? If my memory is correct, then the case is equally strong that Stevens’ choice to have a trial before the election cost him the election. Why aren’t people blaming him for losing the seat on those grounds?
Ruleswatch - April 7, 2009 at 8:49 pm
ANSWERS PLEASE
What personal accountability to Stevens is there here in this federal court judge’s appointment of a special prosecutor?
Would these prosecutors, if found disciplinable, (or, indeed, convictable) also be subject to civil liability to Stevens, and if so, under what cause of action? Have there been other cases where US federal prosecutors, individually, have been successfully sued by defendants they have wronged?
Besides factual, prove-it defences what substantive, legal responses could the prosecutors claim?
Would an action examine the possibility of his conviction without the putative wrongful failure to disclose?
How would a claim for compensatory damages be measured?
Other writers have focused on the power of US federal prosecutors, (for example, Concurring Opinions, within the last few days, highlighted a law review article recently mooting adminstrative law application to the exercise of federal prosecutorial discretion)–do the events here hold any portent of some ongoing regulation of these folks or any broader regulatory control of their conduct?
Beyond the Court’s power of contempt and the internal controls available through the federal prosecution system are their Bar mechanisms to discipline these actors, if misconduct is found?
Assuming that congressional supporters of Stevens were (perhaps fantastically) to seek to manifest support, could the Senate or the Congress themselves weigh in some juridicial way?
In a broader sense, how do these events relate to claims by Scooter Libby on the one hand, or Conrad Black on the other, that excessive power and focus of federal prosecutors is improperly and far from methodically exercised?
Jeff - April 8, 2009 at 1:06 am
Full Discloure: I was a field organizer for Mark Begich, I do not claim to be neutral on this matter.
Prosecutorial misconduct did not alter the senate, an election did. There were many factors which effected the outcome of the Alaska Senate race, Ted Steven’s trial being only among the most significant. It is important to note that Mark Begich’s lead in the race, according to both polling data and unscientifically from the thousands of calls I made, peaked in late summer after Steven’s indictment came down, and slowly eroded from there due to factor such as our esteemed governor’s entry into the presidential race and the growing realization that the Democrats would have a substantial majority after the election.
I could go on for a long time about this, but I won’t. For the record, I believe that dropping the charges against Ted Stevens is the right thing to do, and Judge Sullivan is right to pursue contempt charges. However, to state that prosecutiorial misconduct altered the election makes some pretty big assumptions: first, that if the prosecution had acted legally/ethically, Sen. Stevens would have been aquitted on all seven counts (unlikely, most charges against him were quite easy to prove) and second that if the verdict were different Stevens would have won. I will concede that an aquittal on all 7 charges would very likely given Uncle Ted the victory, but I firmly believe that a mixed verdict or no verdict at all would still have left Begich in a good position to win.
A.W. - April 8, 2009 at 8:54 am
Jeff,
It may not be self-evident that but for this misconduct Stevens would have been acquitted and he would have kept the seat. But the dangerous precedent alone should chasten us. Begich should accept Palin’s call to resign and let them run a special election, period. It would be the classy thing to do, and it protects our democracy from politically-motivated prosecutions. Remember, tomorrow it might be your ox that is gored.
Not that i expect Begich to do so, and not that i think Stephens should be the senator again. But fair is fair and that would be the ideal outcome: a do over on the election.
bill - April 8, 2009 at 1:46 pm
So what?
The last administration’s incompetence and misconduct and dishonesty altered many things, including the composition of the Senate in 2002 (thanks to the drive to war over nonexistent WMDs), the ethnic and electoral composition of Louisiana, and the Supreme Court (whose disingenuousness appointed that administration in the first place).
Stevens was as guilty as OJ. The people can see it even if lawprofs cannot.
Stevens and Prosecutorial Misconduct | Demablogue - October 6, 2009 at 9:03 am
[...] in the history of the Senate was defeated, but by only 3000 votes. As Kaimipono Wenger writes on Concurring Opinions, his conviction must have tipped the [...]
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