Doug Berman at Sentencing Law and Policy raised a fascinating question about whether the Ted Steven debacle reflects another “one bad apple” scenario, or whether this will be seen as the tip of the iceberg.

For example, the Wall Street Journal has this piece, headlined “Justice Department Unit Is Again the Focus of Scrutiny,” which includes this notable passage:

Todd Foster, a former federal prosecutor in Tampa and Houston and a former Federal Bureau of Investigation agent, questions whether the case would have been re-examined as closely if it hadn’t involved a U.S. senator. “My question is what happens to the rest of us?” he asked. “What happens when the person doesn’t have the resources Sen. Stevens had?  What happens to those cases that don’t reach the attorney general?”

I don’t think anyone who toils in federal courts doubts that the fact that Stevens was a Senator played a monumental role in the outcome.  Not preclusive, as I’ve had cases involving defendants who were held neither great power nor wealth, which ended with the courts recognizing massive impropriety.  But as has any other lawyer in federal courts, I’ve had many more cases where the word of the prosecutor was taken as per se truth for no better reason than they were the government.

Still, is this the case, the epiphany, that will shake the foundation of the federal system and make everyone wake up and smell the stench?  Or is there really no offensive odor, and just a few wild cowboys using the vast power we’ve entrusted to them improperly.  Is the fact that they’ve been exposed evidence that the system worked and they failed in their effort to undermine the system and violate their trust?

And Politico has this lengthy and effective article by Josh Gerstein headlined “Fed judges are fed up.”   It includes these potent quotes:

One veteran trial lawyer who practices in Washington said long-serving judges like Judge Sullivan are often deeply outraged by government misconduct because they realize how many defendants have seen their fates sealed based on promises or assurances from prosecutors. 

“Judges that have been on the bench that long rely on the prosecutors, they rely on the government attorneys, because they have to,” said the longtime litigator, who asked not be named. “When their confidence is shaken because of something they’ve seen, suddenly it dawns on them that they’ve been presiding over all these cases all these years and this might be the tip of the iceberg, maybe the wool has been pulled over their eyes. It’s disconcerting.”

Others said the failings were likely to be more widespread than just the Public Integrity Section, at the heart of the Stevens prosecution. ““You would think if any section of the Department of Justice would know how to comply … it would be that section,” said a lawyer who regularly faces off with DOJ attorneys.

We’re now getting into the deeper problems that not only cause prosecutorial misconduct, but allow it to persist.  Doug “tend[s] to view a lot of misconduct as the result of a bad culture rather and not just bad apples.”  I agree, having known AUSAs of extraordinary virtue, even though occasionally quite wrong about their beliefs.  After all, many are young, remarkably inexperienced (in the worldly sense)  and incredibly arrogant, but not at all malevolent.  I’ve even met AUSAs who put their own careers on the line when they came to realize that wrongdoing was happening, and others who stepped into the breach to protect and commit wrongdoing when the honest AUSA refused.

But the statement about judges being on the bench too long is what troubles me most.  The AUSAs come from an internal culture that puts enormous pressure on them to convict with any means.  Even the well-intended AUSA sees the world through prosecution-colored glasses, and believes in the propriety of putting those she believes to be criminal in prison.  It’s the overarching directive.  Only by this mindset can one who hated a defendant as the worst human being alive yesterday, believe in the same defendant with all their heart and soul when they become their cooperator today.  Or at least feign belief before a judge.

It’s the judge who sits on the big bench who has failed in his responsibility to question and doubt.   I cannot agree that it’s a matter of longevity on the bench.  Some are like that on day one.  Some come to realize over time that their faith in the prosecution is misplaced.  Most believe whatever the prosecution says from day one until the day they step down.

A commenter to Doug’s post sums it up well:

“Judges that have been on the bench that long rely on the prosecutors, they rely on the government attorneys, because they have to,”,

No, actually they don’t have to do that; they choose to do it. The judge is a neutral arbitrator of the truth and a defender of the process. The word of the prosecutor is no better or worse in the abstract than the word of the defense attorney. I don’t think the problem is the prosecutors themselves so much as it is the willful blindness of federal judges, a large percentage of which a former prosecutors themselves. I think it is too little remarked upon that judges face significant challenges when they go from the role of a prosecutor to the role of the judge. Those roles require very different things out of people and a very different attitude to the law and what’s happening in the court room.

“suddenly it dawns on them that they’ve been presiding over all these cases all these years and this might be the tip of the iceberg, maybe the wool has been pulled over their eyes.”

If the wool was pulled over their eyes, they need to look to their own behavior first. The prosecutor and government attorneys may have supplied the wool, but it was the judge’s own two hands that were doing the grabbing and pulling.

It is beyond frustrating to try to persuade some federal judges that the government’s view of the facts, of the honesty of a particular witness, usually a cooperator, is just plain wrong.  Sitting in a courtroom, listening to a judge expound on the facts, day becomes night, black becomes white.  The real world gives way to a judicially found fiction, and that fiction becomes the reality upon which the judgment of a court is founded.  There is no more surreal experience.  There is no explanation, except the cynical, to tell a defendant why everything they know to be true, that you know to be true, has just ceased to exist.

So while the prosecutors in the Ted Stevens case were likely outed to a large extent because of the profile of the defendant, and while Judge Sullivan’s epiphany was likely real, and while the culture of the Department of Justice, and it’s United States Attorneys’ offices throughout the country, all played a role in this latest debacle, the very existence of the federal judiciary as the stop-gap against the government’s power has proven to be largely a failure.  The judges chose to accept the government’s word, to squint their eyes when needed to make sure the system runs smoothly and to shrug off the cues that should tell them that there is something very wrong happening right in front of them.

As I, and others, have noted that despite Judge Sullivan’s conversion to doubt, he offers no explanation for his failure to address any of the clear signs of impropriety throughout the Stevens trial.  While it’s good that Judge Sullivan eventually came to realize that he was played, it doesn’t change his failure as a judge to have addressed it during the course of the trial. Sure, the situation worsened significantly with post-trial disclosures of impropriety, but it serves only to highlight that there were clear allegations of impropriety during the course of the trial that were noted by the judge, and yet he did absolutely nothing beyond spouting some cautionary words about it.  He had the chance to do something, to act upon what was happening right before his eyes, and he chose to do nothing.

Until judges stop viewing the government as being inherently right, inherently trustworthy, inherently deserving of the benefit of the doubt (and far beyond the mere doubt), they are the pivot point of a corrupt system.  It is the function of the judge to ensure the integrity of the criminal justice system.  As long as judges favor the prosecution, they cannot fulfill that function. 

Prosecutors can be bad, and that’s why we have judges to rule against them.  If judges won’t do that, then why do we play this game?