Cross Posted at Legal Schnauzer
A special counsel late last week released a scathing, 525-page report about Department of Justice misconduct in the prosecution of Ted Stevens, the late U.S. senator from Alaska. News of the release received scant notice in the mainstream Alabama press, so you would never know the story has profound implications for one of the most high-profile criminal prosecutions in our state's history.
As often is the case in "The Heart of Dixie," we must rely on "an outsider" to provide context for a story that has major importance within our borders. Thankfully, Harper's legal-affairs contributor Scott Horton is up to the task of explaining what misconduct in the Stevens case means for the prosecution of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy.
We might sum up Horton's take with these two key points:
(1) If special counsel Henry F. Schuelke III thinks DOJ personnel behaved abhorrently in the Stevens case, he truly would be blown away by their behavior in the Siegelman case;
(2) If prosecutorial misconduct caused the DOJ to come to an agreement that vacated convictions in the Stevens case, justice demands similar action in the Siegelman case.
How bad was the misconduct in the Stevens case? Prosecutors introduced evidence they had clear reason to believe was perjured. They concealed from the defense the fact that their star witness had perjured himself in an earlier case. FBI agents failed to follow standard procedures when taking written notes of witness interviews. Prosecutors planted false stories in the mainstream press.
Those are just a few "highlights" from the Stevens matter, but Horton says they pale in comparison to what we know about the Siegelman case:
DOJ spokesmen are laboring to minimize the damage from this report. They will stress that this was a single incident. But in fact, hardly a week passes without reports of scandalous misconduct by prosecutors involving the suppression of exculpatory evidence. And for every case that surfaces, probably ten do not, because a cloud of prosecutorial privilege envelops their conduct, shielding it from view. The Stevens case isn't even the worst example of prosecutorial misconduct in corruption cases involving public officials, though it is typical in terms of the complaints that it raised.
The case involving former Alabama governor Don Siegelman, for instance, features both more serious and better documented instances of wrongdoing by prosecutors. The conviction is still pending in that case, with the Justice Department steadfastly arguing, in the face of mounting evidence, that it did nothing wrong.
These facts help explain why, as the Wall Street Journal reports, more than 100 former state attorneys general from both political parties have joined in a brief asking the Supreme Court to overturn the Siegelman conviction--a historically unprecedented campaign. George Will recently backed the initiative.