Prosecutorial Misconduct: Senator Ted Stevens Never Got a Second Chance

This Monday, after an investigation ordered by U.S. District Judge Emmet Sullivan, it was recommended that criminal charges not be filed against the lawyers involved in the shameful prosecution of former Alaska Senator Ted Stevens.

Ordinarily, I’m happy when a prosecutor or other authority has the integrity not to bring charges against an individual. But the trial and conviction of Senator Stevens was by no means ordinary, and given the gross misconduct by the government’s lawyers, I’m somewhat ambivalent.

Even though Attorney General Eric Holder dismissed all charges against Senator Stevens, Senator Stevens will never get a second chance. You see, he was killed in a plane creash a few months ago. Meanwhile, back in 2008, eight days after he was convicted, he lost his senate seat in a close election. He had held that seat for over forty years. Without doubt, had he not been convicted, he would have been re-elected.

Andrea Lyon, a professor of law at DePaul University, a fearless criminal defense lawyer, and a frequent guest on my radio show, Celebrity Court, wrote a piece earlier this week in The Huffington Post about wrongful convictions. She noted that some miss the point entirely — that they dismiss the significance of wrongful convictions by saying that the system worked, because afterall, people eventually do get off death row, or do get released from prison. Right. After spending ten years or whatever locked up. You can’t just get your life back. And in the case of Senator Stevens, you can’t just get your reputation back.

Here’s a bit of background about the Stevens trial. In October of 2008, a federal jury in Washington, D.C. found Senator Stevens guilty of seven counts of failing to properly report gifts. The charges grew out of an investigation by the IRS and FBI into corruption by Alaskan politicians. Senator Stevens was implicated because of renovations on his home and alleged gifts from an Alaska corporation. Senator Stevens steadfasly maintained his innocence.

Shortly after the senator’s conviction, I heard his attorney Brendan Sullivan speak. Mr. Sullivan told some stories of prosecutorial misconduct which he had seen during his legendary career — stuff which would make your skin crawl. And then, he alluded to the fact that there were going to be some shattering revelations in the Stevens’ case.

Shattering they were. An FBI agent filed a whistleblower affidavit. The affidavit stated that prosecutors sent a key witness back to Alaska when it was discovered that his testimony would undercut the government’s case. Evidence was also withheld including prior statements from witnesses and a statement that Senator Stevens would have paid for the renovations on his house if asked. And a key prosecution witness had an affair with an FBI agent, gave gifts to other agents, and helped another agent’s relative get a job.

The judge vacated Senator Stevens’ conviction and Attorney General Holder — outraged by the prosecutorial misconduct — declined to pursue the case. Meanwhile, the judge held three of the attorneys in civil contempt for their behavior and ordered an investigation into their actions. It was this investigation which recommended that criminal charges not be brought. And the Department of Justice’s Office of Professional Responsibility after its own investigation, did not issue misconduct findings against the government’s attorneys.

So what’s the incentive — other than their own conscience — to keep prosecutors honest? The Justice Department didn’t issue misconduct findings. The investigation ordered by the trial judge didn’t recommend criminal charges. However, the judge did issue civil contempt charges against some of the attorneys — charges which they are appealing. And to his huge credit, Attorney General Holder dismissed the case.

One of the most tragic consequences of this entire matter is that one of the junior members of the government’s trial team committed suicide a few weeks ago.

What strikes me as remarkable about the whole Senator Stevens drama is that it shows that prosecutorial misconduct extends to white collar cases. Usually, we hear about a lab tech fudging evidence, or a cop beating a confession out of a suspect — and the prosecutor going ahead with the case. But here, we don’t have drugs, or guns, or dead bodies — and the target is a United States Senator.

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