Walking With Senator Stevens (Update)

Two government prosecutors withheld statements and documents, lied about it and fought the consequences of it by trying to cover it up.  The Department of Justice has decided to come clean and, in a fit of conscience, moved to vacate the conviction and dismiss the charges.  This should be a huge victory for those criminal defense minded folks everywhere, but it doesn’t feel nearly as good as it should to me. 

The defendant in this nightmarish prosecution was Alaska Republican Senator Ted Stevens.  The story of the DOJ change of heart has been covered extensively around the blawgosphere,  The government has been roundly castigated for its fundamentally unlawful handling of the prosecution.  Issues have been raised about what the government plans to do to its own prosecutors, who broke the law in their effort to convict a senator.  But the part that kills any inclination toward gloating is this from Popehat :


And while I’m sure that this time Ted Stevens is laughing, he’s hardly the only fool.  Now the joke is on the United States courts, the Senate, the people of Alaska, and most especially the American taxpayer.

You see, the horrific handling of this case by federal prosecutors is an indictment of the Government, but not a vindication of Ted Stevens.  In the usual course of a federal prosecution, the worst that comes of a botched prosecution is that one more criminal remains on the street. But Ted Stevens isn’t just one more criminal.  He was a United States Senator.  He was a Senator making our laws, haranguing the values of others, while selling his vote. 

The government could have convicted him after a fair trial, complying with all the rules and duties that the law imposes.  But that would have meant a fair fight, which apparently they were unprepared to do.  The government prosecutors wanted to win, and were prepared to play the system by using the Brady gambit to make sure that Stevens didn’t have the ammunition to fight back.  The government never wants a fair fight.  It’s hard to say how often this happens, but it’s easy to say how frequently this outcome follows.  Never.  Until now.

Thankfully, Ted Stevens lost his seat in the Senate, so we need not tolerate the unseemly show of him returning to Washington as the victorious hero.  But had the defendant not been Ted Stevens, would this have happened at all?  As the New York Times wrote:


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.

Was Ted Stevens the only victim of this disease?  Will judges now take seriously claims by the defense that they’ve been denied Brady, that witnesses lied, that representations by prosecutors aren’t the gospel?  Will judges at least consider the possibility that the word of a prosecutor shouldn’t be accept at face value, while the word of a defense lawyer be dismissed and ignored?

Or is this just another isolated incident?  Former United States Senator Ted Stevens gets a walk.  Will there be anyone walking with him?

Update:  From our hinterlands correspondent. Kathleen Casey, comes the New York Times’ entry into the debate, covering the full panply of thought on the subject.  Let’s see, there’s:


David Alan Sklansky is professor of law at the University of California, Berkeley, and faculty chair of the Berkeley Center for Criminal Justice.

Okay, a law professor.  Fair enough.  And then there’s:


Barry Coburn, a lawyer, is a former federal prosecutor.

Sure, a former federal prosecutor seems appropriate.  And then:


Stephen Gillers, a professor at New York University School of Law, is an expert in legal ethics.

Another law professor.  So one wasn’t enough?  Okay, and then there’s . . . no one.  That’s it folks.  That’s all she wrote.  So anybody notice what’s missing from the full panoply of thought here? 

I bet that the Editors tried valiantly to find a criminal defense lawyer, perhaps even a federal defender, to express some thoughts on the subject, but they were all unavailable for comment because they were too busy waxing their Ferraris.  Yeah, I’m sure that’s it.  Because the Times, you know, would never deliberately neglect an entire side of the picture from those who see it daily.

10 comments on “Walking With Senator Stevens (Update)

  1. Kathleen Casey

    Funny thing is, the Grey Lady could have substituted Bernie Gershman for all three, seminar speaker and author of many trench (speaking broadmindedly) law review articles about prosecutorial misconduct. Former federal prosecutor and prof at Pace Law School, in her own backyard. He might have suggested who else to interview, from the trenches. If she were to pay attention.

  2. clarice

    Let’s see, pork for pork’s sake–say Byrd of Murtha’s–doesn’t seem to bother you, but pork to a state whos only real means of income , energy production and transmission, is cut off is so shameful that you allow the smears spread under cover of anonymity to a credulous and partisan press to continue to shape your views of a man who clearly was railroaded.
    Nice job.

    Perhaps if he were a gitmo prisoner who’s helped the 9/11 hijackers your sympathies would be with the wronged defendant.

  3. SHG

    Rarely has anyone come here to argue their right to pork, and that Ted Stevens was clearly “railroaded”.  It’s certainly changed the way I think of Alaska, particularly after enjoying the wisdom of Sarah Palin.

  4. SHG

    Can you imagine how cool Holder would have been if it was?  It would have been the classic for generations to come.

  5. Turk

    Isn’t this the kind of release from prosecution that some folks call a “technicality?” You know, he’s guilty but goes free because of that constitutional stuff.

    And wouldn’t it be those same folks who usually rant against those technicalities also be some of the same folks that are now calling for Sen. Begich, the guy that beat Stevens, to resign? So that that poor Uncle Ted can get his seat back?

  6. SHG

    To be fair, we’re the same folks who argue that adhereing to the Constitution and the law is never a technicality.  Of course, this dismissal is due to governmental wrongdoing, not Ted Steven’s innocence.  The idea that they want Sen. Begich to resign to make way for Steven’s return to the Senate, on the other hand, would elevate this to the truly absurd.

  7. Jdog

    I dunno. The whole exculpatory evidence thing isn’t what I would call a technicality, as it speaks to what you guys call “factual innocence”. A guy getting kicked loose because the cop didn’t have PC or a warrant to search his colon for the chain saw used in the murder isn’t quite the same thing — this speaks to whether or not the crime was actually committed, not to whether or not the proof proffered was proper. (Yeah, I could say “evidence,” but that wouldn’t alliterate.)

  8. SHG

    There are two basic subsets of Brady, one being exculpatory evidence and the other being impeachment evidence.  The former is evidence that supports the defendant’s innocence, while the latter is evidence that can be used to impeach the government’s witnesses.  In the Stevens case, I believe that the withheld evidence was primarily impeachment and not exculpatory.

  9. John G

    Behind Closed Doors:

    The Republican Leadership: Before the trial, “ok, you have us nailed, but can you build-in some flaws in the legal discovery and sharing process so at least he doesn’t have to do time. After all, the man is one of us. I mean everything will fall apart if we start cannibalizing each other with this kind of thing. And besides, we have it from a real good source that Democratic Senator Crack-Head was caught up in a gay brothel bust last week”.

    Democratic Leadership: “Okay, we’ll handle this case like rookie lawyers fresh out of law school, so you can get the conviction tossed, BUT only after the election. BUT, Gentlemen s honor here, just remember you owe us one when we get indicted.

    Duh! Folks, I realize I’m no lawyer, but I’m not so stupid as to buy in to this rookie mistake crap.

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