Incentive to Punish

Brendan Sullivan, who represented Alaska Senator Ted Stevens in his botched federal prosecution, asks in an op-ed in the Washington Post, where’s the punishment?  The prosecutorial misconduct resulted in two reports, a  672 page tome by the Department of Justice and the independent report of Henry Schuelke, weighing in at a mere 500 pages, which concluded that

the prosecution was “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witnesses.”

If you lie to a federal agents, you commit a crime. 18 U.S.C. §1001.  Ask Martha Stewart if there is anything funny about it.  But when an assistant United States attorney lies to a federal judge, whether by commission or omission, it’s different.

Specifically, the government failed to disclose that its chief witness obtained a false affidavit from a woman with whom he had sex when she was underage. This was of great significance to the defense, to show that the witness had suborned perjury on a prior occasion. Lies in a letter in which prosecutors purported to disclose information to which the defendant was entitled are characterized by the report as “poor judgment.” In any other situation, the department would call sending a false letter an “intentional” act.

 And in this case, one of the worst known examples, heads would roll.  Just not too far.

Two prosecutors engaged in “reckless professional misconduct.” One received a 40-day suspension without pay; the other, a 15-day suspension without pay — “punishment” that pales next to the misconduct.

One supervisor in the department’s Public Integrity Section was found to have “exercised poor judgment by failing to supervise certain aspects of the disclosure process.” There was no punishment at all for the most senior prosecutor in the case.

And what of Nicholas Marsh, the prosecutor who  committed suicide during the course of the investigation?

The department made no effort to attribute fault to the prosecutor who committed suicide during the course of the investigation. On balance, leaving him out of the report is a decent thing to do. But it is hard to square with the public’s right to know all of the elements of a case in which prosecutors, not the defendant, were the wrongdoers.

Propriety demands that we not speak ill of the dead, though such decency isn’t always shown the deceased when, rather than work for the DOJ, the dead man lost his life in a hail of police bullets or the execution chamber. 

Sullivan lays out the scene, with a couple of hands duly smacked for being wayward prosecutors, a bit too cowboy-ish in their zeal but not so evil as to warrant more than a very stern look and a few weeks off.  The government’s fear is that they not suck the desire to imprison out of their people by forcing them to think harder about giving the defense half a chance. That would never work.

And, after all, didn’t Judge Emmet Sullivan dismiss the case?  Isn’t that good enough for the defendant. Isn’t that sufficient for society?

No. No it’s not.

There are two paths by which a prosecutor will find himself adhering to the rules that bind his service. One is that he inherently believes in being fair and honest with the defense, not believing that his side alone sits at the right hand of god and anything he does to achieve the only righteous outcome, the conviction of the bad guy, is justified.  These prosecutors exist. I’ve met them. They are good, honest people for no reason beyond the virtue of being good, honest people.

The other path is incentive driven, for those who might be inclined to fudge the details as far as they can get away with it.  Or those whose will to do right is overcome by the zeal of a group in a high profile case to not lose and disgrace their office.  They forget that getting caught dirty will also disgrace their office, but then, the chances of getting caught are small. Very small.

The latter path is littered with defendants who are either innocent or not as guilty as the government would have it, but rarely will you see the bodies. The less-than-honest-prosecutor knows this, and is emboldened by it.  It’s an incentive to cheat the system, that the risk of being found out is so slim.

But there is another incentive as well.  Forget about what happened to the prosecutors in the Ted Stevens case. Make no mistake, if the same thing happened to Joe Smith, there would not be two reports consisting of more than a thousand pages. There wouldn’t be one report consisting of a dozen pages. It would never be subject to real scrutiny.

The worst that would come of it is that the case would be dismissed, meaning the defendant doesn’t get convicted.  That means, what would have happened anyway, happens.  No harm, no foul. On the upside, a person whom the government thinks is a bad guy gets convicted because the government cheated the system.  On the downside, the person gets what he should have gotten in the first place.

Where’s the punishment?

Not only do the prosecutors not receive punishment in some slightly proportionate way that anyone not in the employ of the Department of Justice would be punished, but at the absolute worst, a slap on the wrist and a wag of the finger.  More importantly, the incentive system that moves the ill-motivated prosecutor to do wrong remains intact, so that prosecutors will continue to be emboldened to be dishonest and flout their duties under the law.

Dirty prosecutors must be punished, just like dirty cops and dirty judges.  But even then, the system won’t block the road to perdition until the incentive system is changed so that it discourages the dirty prosecutor and encourages the virtues the Department of Justice claims to possess.  Until then, it’s all a bunch of crap buried deep in many hundreds of pages of reports and even more bodies littering the path.