Prosecutors Under the Loupe

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http://harpers.org/archive/2009/07/hbc-90005444

A further development in the reversal-of-fortune prosecution of former Alaska Senator Ted Stevens, in which Stevens has been set free as his prosecutors now face a criminal probe into allegations of serious misconduct. The Anchorage Daily News reports:

A special prosecutor in Washington, D.C., was granted authority Tuesday to compel testimony from the Justice Department team that took Sen. Ted Stevens to trial. He was also authorized to subpoena the former lead FBI agent in the Alaska corruption investigation and key witness Bill Allen and his attorney. The subpoena authority was approved by U.S. District Judge Emmet Sullivan, who presided over Stevens' trial last year. When the Stevens case fell apart over charges of prosecutorial misconduct, Sullivan appointed the special prosecutor, Henry Schuelke III, to investigate the prosecutors for criminal contempt.

Prosecutors are protected from misconduct accusations by the doctrine of prosecutorial immunity, which is only rarely cast aside, as in this case, when there is substantial evidence of criminal misconduct. The Stevens prosecutorial team will now have to decide whether to submit to the special prosecutor's questions or claim their Fifth Amendment rights against self-incrimination. It is unheard of for a lawyer to invoke his Fifth Amendment rights and remain in the Department of Justice as a prosecutor""recent examples included Bush Justice Department figures Brad Schlozman and Monica Goodling, each of whom was quickly forced to resign. For the moment, however, Attorney General Holder has left all the Stevens prosecutors""which includes the senior leadership of the Department's Public Integrity Section""in their positions pending the outcome of the Department's own internal probe.

The team that prosecuted Stevens is accused of pressuring and manipulating the testimony of a key witness against Stevens to give stronger evidence, while withholding potentially exculpatory statements he made. An FBI agent working on the prosecution team is also accused of "getting too close to witnesses," according to the Anchorage Daily News.

The matter has potential repercussions for other cases in which similar charges have been raised. For instance, in a federal court in Alabama, former Governor Don E. Siegelman seeks a new trial, making virtually identical accusations against Public Integrity prosecutors. He also argues that witnesses were improperly pressured and exculpatory evidence was withheld. His evidence is far more powerful than anything yet presented in the Stevens case. His accusations were recently bolstered when a member of the prosecution team came forward, furnishing a sworn statement corroborating them on the basis of first-hand observations from inside the prosecution effort. Yesterday, the government filed its opposition to the Siegelman motion, submitting papers in the name of William M. Welch II, who as head of the Public Integrity Section is a target in the Stevens investigation. The government insists that the case remain before Mark Fuller, a federal judge that they struggled for years to get the case before. The recently retired chief federal district court judge in Alabama's northern district, U.W. Clemon, described the prosecutors' efforts at judicial forum shopping in the Siegelman case as "extraordinary" and "like nothing I have ever seen before" in remarks he delivered in the National Press Club on June 26, which can be viewed here. Judge Clemon disclosed that he had appealed directly to Attorney General Eric Holder to intervene in the case, review the serious misconduct allegations against the prosecution team, and take appropriate action. Clemon advises me that Holder responded to his letter promising to look into the matter, but there is no evidence yet of any action on the part of the attorney general.

But whereas the Stevens case was under the supervision of a judge who looked skeptically into prosecutors' conduct, the prosecutors in the Siegelman case seem to have found just the judge they wanted. At the time that the public integrity prosecutors were maneuvering to get their case before Judge Fuller, prosecutor Welch had a 36-page affidavit by an attorney laying out detailed claims of misconduct against Fuller for Welch to investigate, a fact which was unknown to Siegelman and his attorneys. In its papers, the government vehemently objects to a new judge, opposes an evidentiary hearing, and also suggests that both the district court and court of appeals considered the defense's claims of jury tampering and jury misconduct to be harmless. The arguments are clearly designed to head off any serious investigation of the prosecutorial misconduct accusations, particularly the sort of investigation which has now been launched in the Stevens case.

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Scott Horton is a contributor to Harper's Magazine and writes No Comment for this website, www.harpers.org. A New York attorney known for his work in emerging markets and international law, especially human rights law and the law of armed conflict, (more...)

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