NYTimes has an excellent factual report, quoted here, but read the original to benefit from links:
Justice Dept. Moves to Void Stevens Case
By NEIL A. LEWIS - Published: April 1, 2009
WASHINGTON — The Justice Department moved on Wednesday to drop all charges against former Senator Ted Stevens of Alaska, who lost his seat last year just days after being convicted on seven felony counts of ethics violations.
The case was one of the most high profile and bitterly fought in a string of corruption investigations into current and former members of Congress. But Justice Department lawyers told a federal court Wednesday that they had discovered a new instance of prosecutorial misconduct, on top of earlier disclosures that had raised questions about the way the case was handled, and asked that the convictions be voided.
The attorney general, Eric H. Holder Jr., said he would not seek a new trial.
The collapse of the Stevens case was a profound embarrassment for the Justice Department, and it raised troubling issues about the integrity of the actions of prosecutors who wield enormous power over people they investigate. Mr. Stevens’s case was handled by senior officials of the department’s Public Integrity Section, which handles official corruption cases.
Mr. Holder, himself a former prosecutor and judge, noted that the department’s Office of Professional Responsibility was conducting a review of the prosecutors’ conduct, raising the possibility that some of those who tried Mr. Stevens on ethics charges could themselves now face ethics charges.
Mr. Stevens said in a statement: “I always knew that there would be a day when the cloud that surrounded me would be removed. That day has finally come. It is unfortunate that an election was affected by proceedings now recognized as unfair.”
Mr. Stevens was charged in July with lying on Senate disclosure forms by concealing an estimated $250,000 worth of goods and services he received, mostly to renovate a chalet he owned in Alaska. Prosecutors said he had received the bulk of the goods and services from Bill Allen, a longtime friend who had made a fortune by providing services to Alaska’s booming oil industry.
But in their filing on Wednesday, government lawyers said they had recently learned that trial prosecutors had concealed from Mr. Stevens’s defense lawyers the notes from a 2008 interview with Mr. Allen that raised significant doubts about the charges. Among other things, Mr. Allen asserted in the interview that the work on the Stevens home was worth only about $80,000, they said.
Mr. Stevens’s lawyers argued during the trial that the senator had been unaware of the help he received from Mr. Allen and had not intentionally concealed anything. Mr. Allen, the prosecution’s chief witness, provided forceful testimony intended to demonstrate that Mr. Stevens had been fully aware of what he received and had even signaled that he wanted it concealed.
Mr. Holder said in a statement that “I have concluded that certain information should have been provided to the defense for use at trial.”
Mr. Stevens had faced an almost-certain prison term on the conviction. But Judge Emmet G. Sullivan had delayed imposing a sentence because he was considering motions by Mr. Stevens’s lawyers to throw out the conviction based on previous disclosures of prosecutorial misconduct. The judge repeatedly scolded prosecutors during the trial over a series of incidents in which they concealed information from defense lawyers.
Judge Sullivan recently ordered that some of the government lawyers involved be held in contempt of court, including the two top officials of the Public Integrity Section.
Judge Sullivan displayed his annoyance with the prosecutors’ conduct for the first time almost four weeks before Mr. Stevens was convicted. On Oct. 3, the judge almost declared a mistrial after discovering that prosecutors had not told the defense team about a different interview with Mr. Allen by the Federal Bureau of Investigation.
“How does the court have confidence that the Public Integrity Section has public integrity?” Judge Sullivan asked that day.
The chief prosecutor, Brenda Morris, apologized for her team’s mistakes. But she also called the errors careless, not purposeful.
But last month, an F.B.I. agent who had worked on the investigation disputed that characterization of events, accusing prosecutors and a fellow agent of willfully concealing evidence from Mr. Stevens’s lawyers.
The agent, Chad Joy, wrote in the complaint that he had “witnessed or learned of serious violations of policy, rules and procedures as well as possible criminal violations.”
Judge Sullivan ruled that Ms. Morris and two other prosecutors — William Welch and Patty Stemler — were in contempt of court after the Justice Department failed to produce documents the judge had requested to assess Mr. Joy’s complaint.
With that factual background as a basis, there is this from TPM:
A Critical Step to Improving Prosecutorial Accountability
This week, U.S. Attorney General Eric Holder dismissed the case against former Senator Ted Stevens of Alaska. Citing prosecutorial misconduct as the primary reason, the Justice Department determined that the fairness of the trial had been too damaged by government misconduct to proceed further.
The Stevens case had been marred by prosecutorial misconduct from the outset. Judge Emmett Sullivan repeatedly criticized prosecutors for failing to follow orders to provide evidence to the defense. In addition, prosecutorial misconduct at trial led Judge Sullivan to hold one of the prosecutors in contempt, and at one point instruct the jury to disregard some evidence presented by the prosecution.
The proper role of a prosecutor is not to simply seek convictions, but to see that justice is done. In pursuing a conviction against Stevens, prosecutors ignored their constitutional and ethical obligations to ensure a fair trial process. Holder rightly recognizes that there can be no justice when the fairness of a criminal proceeding is interrupted by government misconduct. The convictions against Stevens were obtained through the abuse of prosecutorial power and the wrongful suppression of evidence.
Likewise, the proper role of police investigation is to fairly attain facts to discern whether probable cause exists to believe a crime happened. Nobody has to talk to police, and it is unprofessional to quiz a targeted individual while holding any belief probable cause exists, without giving Miranda warnings - a safeguard all citizens are entitled to expect and demand. Police must themselves obey the law and the requirements it places on them - and an absence of Miranda warnings is equivalent to representing to a target individual that the investigator at the time believes there is a lack of probable cause, while making inquiry. TPM contines:
Unfortunately, the kind of prosecutorial misconduct that occurred in Steven's case is pervasive in our criminal justice system, at both the state and federal level. Withholding evidence is the most common type of prosecutorial misconduct. Making matters worse, prosecutors who engage in even the most egregious misconduct are rarely investigated or held accountable for abusing their power. Holder should be commended for taking a step in the right direction to hold prosecutors accountable for their actions in calling for an internal investigation in this case. It remains to be seen what will come of that investigation and how the prosecutors in Stevens case will be held accountable for their egregious abuses of power.
The vast majority of states have failed to enact effective safeguards designed to prevent misuse of prosecutorial power. Prosecutors are rarely reported to disciplinary authorities for acts of misconduct, and state bar associations rarely initiate disciplinary proceedings against prosecutors--civil practitioners are disciplined on a much greater scale than prosecutors. States should follow the example Holder set in the Stevens case by quickly taking actions to effectively respond to prosecutorial misconduct when it occurs.
Amen. Also, obviously, prosecutorial bosses, the Holders of this world at county and local levels should be sensitive to avoid compromising situations, such as, hypothetically, a county attorney sitting on a planning board rubber stamping questionale land dealings of another public official - how that other one uses power and office to accrue personal gain. Any prosecutor putting herself into such a situation should be questioning her own judgment and objectivity, then and later down the road. The TPM item concludes:
The Justice Project's upcoming publication, Improving Prosecutorial Accountability: A Policy Review, outlines the systemic problems that lead to prosecutorial misconduct and recommends reforms to improve prosecutorial accountability. For example, The Justice Project recommends jurisdictions adopt open-file discovery in criminal cases, which would largely eliminate the ability of prosecutors to withhold important evidence, as they did in the Stevens case. Further, The Justice Project also recommends jurisdictions establish prosecutorial review boards that would be responsible for investigating and sanctioning prosecutors who abuse their power.
Prosecutorial misconduct is costly and damaging to our criminal justice system, and Holder's actions this week recognize this. Indeed, prosecutorial misconduct plays a significant role in many wrongful convictions that have sent innocent people to prison while the true perpetrator remained free. Eric Holder should be applauded for sending the right message to all prosecutors that such abuses of power will not be tolerated.
John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.
The same idea, from another corner of the nation, and from a Duke University professor experienced in the publicly shameful situation of wrongful convictions, here, telling some tuths as they are but should not be:
One System, Two Realities
The United States has one of the best criminal justice systems on earth; in practice, however, there are two systems. One system, the one that tried former Senator Ted Stevens, seeks justice. The other system, the one to which the public is largely indifferent, is the one in which the kind of misconduct that freed Mr. Stevens is both common and tolerated.
We learn about the American criminal justice in middle-school civics classes. The system is an adversarial one. Both the state and the criminal defendant are represented by equally well-qualified advocates. A judge presides over the trial to make sure both sides play by the rules. If either side commits serious errors, the judge may stop the proceedings or overturn the conviction; "it is better that ten guilty men go free than one innocent man be wrongly convicted."
Our system is also democratic. Trials are public affairs. Every defendant is presumed innocent until a jury of his peers convict him; he is not required to testify at trial and jurors may not infer guilt from his failure to do so.
The Duke Innocence Project investigates the cases of poor and minority prisoners in North Carolina who have nothing in common with the Duke lacrosse players. In case after case, law students are surprised at how little evidence it took to convict the prisoner. And students are dismayed by the widespread indifference of the police, prosecutors, judges, defense lawyers, the North Carolina Attorney General, and the public to the routine misconduct of some prosecutors and police officers and to the possibility than some of these prisoners may be innocent.
When Reade Seligmann, one of the Duke lacrosse players, was exonerated, he said: "This entire experience has opened my eyes up to a tragic world of injustice I never knew existed. If it is possible for law enforcement officials to systematically railroad us with no evidence whatsoever, it is frightening to think what they could do to those who do not to have the resources to defend themselves."
No citizen in a civilized nation should be indifferent to such "frightening" reality. Those with resources have a level of "justice" available that those lacking resources in turn lack. It is known as the "deep pocket" having the advantage; the modern day Golden Rule, "Those having the gold make their own rules."
Think about it. Think about that hypothetical county prosecutor, compromising herself in a way that was unnecessary but politically expedient, easy, and appealingly gratifying at the time. It is a system failing to work if Miranda warnings are ignored, if cops infer "probable cause" from a target person's unwillingness to be quizzed, if cops and prosecutors withhold notice of what's been alleged by whom, etc. It is a system failing to work properly from a host of such things that make us less as a nation than we could and should aim to be.
Huffington Post poses similar concerns, here, and take some of the premises with a grain of salt:
After the dark days at the Department of Justice under President Bush, not surprisingly integrity seems to have returned under President Obama and Eric Holder. But how far will that integrity go? Will Holder be willing to tackle more subtle and elusive forms of prosecutorial misconduct? Will Holder insist that his prosecutors staunchly obey their oath "to seek justice," rather than simply and relentlessly striving for high conviction rates?
There are two areas of rampant prosecutorial misconduct that Holder should address. First, prosecutors routinely suborn perjury by coercing defendants--particularly white-collar defendants--into pleading guilty even when they may not be guilty. Second, prosecutors arbitrarily invoke a statute that is so vague, so poorly defined, and so ubiquitous that any man, woman, and child could become a convicted felon.
This may come as a surprise, but Abramoff was the victim of both forms of prosecutorial misconduct.
Abramoff may have pushed the envelope in his efforts to lobby vigorously for his clients, but he did not believe he was guilty of the serious criminal activities to which he pleaded guilty. So this begs the question. Why did he plead guilty if he did not believe he was guilty, and if in fact he may not have been guilty?
Herein lies the insidiousness and scope of prosecutorial misconduct. First, the prosecutors threatened that if Abramoff didn't play ball, they would not rest until they had found him guilty of some offense, for which he would be sent to a maximum-security prison with violent offenders for thirty years. Furthermore, Abramoff knew that the prosecutors had unlimited funds and resources, whereas he certainly did not. But they then made him an offer he couldn't refuse. They told Abramoff that if he pleaded guilty to whatever crimes they told him to plead guilty to, and if he cooperated in their ongoing investigation, then he would receive a much-reduced sentence, spent in a relatively cushy prison camp. This would also guarantee the prosecutors a conviction without facing the risk of a trial by jury. Perhaps Abramoff's fate would have been radically different if he had had Brendan Sullivan Jr. as his defense counsel. Instead, the terrified Abramoff quietly committed perjury by agreeing to plead guilty, something he couldn't dare admit now, because he could then be openly charged with perjury.
In November 2007, The New York Times reported that nearly 30% of convicted and imprisoned rapists and murderers later exonerated by DNA evidence had pleaded guilty. Why did they plead guilty when they were innocent? Because prosecutors terrified them into pleading guilty. This is the kind of prosecutorial misconduct that must stop.
As a wrap-up, Politico, warning us that the freedoms we enjoy are not automatic, but that people in positions of power can do good and bad things,
The Ted Stevens case this week is only the latest example — one in which Judge Emmet Sullivan threw out Stevens’ conviction and launched a criminal contempt investigation against a half-dozen federal prosecutors Tuesday, calling their actions “shocking and disturbing.”
Attorney General Eric Holder announced Tuesday he’s replacing the head of the office that investigates misconduct by Justice Department attorneys, just a day after Sullivan publicly complained about the unit’s slow pace.
But other federal judges, too, are complaining about the work done by Justice Department prosecutors.
• Federal Judge Colleen Kollar-Kotelly recently removed a Justice Department lawyer from a Guantanamo detainee case for flouting several deadlines, then lambasted his supervisor for submitting a “shockingly revisionist” sequence of events to the court.
• In Miami last month, federal Judge Alan Gold complained of "flagrant violations" by prosecutors who did not disclose the existence of secret recordings of a defense lawyer for a doctor charged with prescription fraud.
* Pentagon preps for economic warfare
* Parental rights: The new wedge issue
* U.S. could join direct talks with Iran
• Another federal judge in Washington, John Bates, last year cited a failure to turn over evidence as he ordered a new trial for a man convicted of illegal business dealings with Iran. Bates said he had “grave concerns” about the government’s actions, which “severely prejudiced” the defendant’s fair trial rights.
• And in a separate Gitmo case, Sullivan also lashed out at the government, vowing that “someone’s going to pay a price” for withholding evidence.
What’s remarkable about several of those cases is that judges – usually loath to interfere in the mechanics of the prosecution or the defense — took the dramatic step of removing Justice Department lawyers, or simply throwing out verdicts in cases that began during the prior administration.
This repeated criticism delivered to DOJ attorneys suggests they are facing a credibility gap, particularly before judges in the Capital—and perhaps elsewhere in the country as well—that could have profound effects in a variety of other cases.
It's a long screed. But think about it, please. Freedoms we presume are inviolable may only be so if we insist that they be so, regardless of the pressures brought to bear toward compromise or capitulation.
I don't know about Abramoff and that line of analysis, but I know I will try to never be steamrolled by powerful or well-placed people, making wrongful allegations against me. We all should stand up for our rights, for what's right.