Wednesday, April 01, 2009

Prosecutorial Misconduct

Well, at least Alaska got a different Senator....

But there's a real story here, and not just about Ted Stevens. It's exceptional for a defendant to have the type of resources that Ted Stevens could muster against a U.S. Attorney's Office. But for the transition to the Obama Administration, I doubt that the Department of Justice would be admitting the extent and gravity of the misconduct or dropping the charges - just as before, it would be "all that matters is winning, full speed ahead".

There are a couple of things that make the Stevens case unusual. First, a U.S. Attorneys Office has such phenomenal resources, it's a bit surprising that the involved prosecutors felt the need to do this. Second, given the resources possessed by the defense, it's amazing that they thought they could get away with such extraordinary misconduct. I suspect, unfortunately, this is an example of rot that set in at the highest levels of the Bush Administration - rot beginning at the Oval Office - politicizing everything, focusing on results over means, throwing away any sense of obligation to observe ethical standards or even follow the law, putting loyalty above competence....

But the thing is, it's not particularly unusual for a police officer or prosecutor to decide that a defendant is guilty, and to "help along" the prosecution by playing games with the evidence, influencing witnesses, lying on the witness stand.... "He's guilty, right? So it's not really wrong to make sure he's convicted." In many cases the defense may have strong grounds to suspect misconduct, but won't be able to prove it. While some prosecutors have a very strong sense of ethics and commitment to doing justice, there are some whose primary goal is to get as many convictions as possible no matter what the facts. And there are some who have internalized the notion that everybody they prosecute is guilty - and obviously so - because they don't charge innocent people. When you're convinced you're advancing justice, it can become all too easy to turn a blind eye.

Stevens was convicted. You can say "He belongs in jail." You can attempt to justify the perversion of justice by the prosecutors and officers involved in the misconduct. But if you think he's guilty, think about this: It's that misconduct that is keeping him out of prison. That's not normally the way it works - normally, this type of misconduct is vastly more likely to land an innocent person in prison than to keep a guilty person out.


  1. Of course the Washington Post reminds us that Eric Holder has never been all that good at holding an ethical position when it's not in his interest to do so . . . it's always easy to be "above board" when it is the "last guys" decisions that you are reviewing . . .

    "Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster."


  2. What - I get a rant about the "D.C. voting rights bill:, but nary a word about They Live?

  3. "They Live" speaks for itself. : )

    . . . unless you are a law librarian to be, then it needs a translator.