I apologize for deviating from my regular schedule (today should be politics), but yesterday I had to address the jaw-dropping rise in interest rates on 10-year Treasuries last week. They spiked again yesterday, meaning the last 6 days of trading will (very) roughly add $40 billion to the budget as old debt is retired and re-issued at higher rates.
Be that as it may, I want to return to the matter of prosecutor misconduct in the corruption trial of the late Senator Stevens (R-AK) that I discussed here. It appears the prosecutors may narrowly escape criminal prosecution for their misconduct, but I hope they get disbarred.
(Side note: I want to remind everyone that this was George W. Bush’s Justice Department.)
While it’s clear that the prosecutors behaved badly, the question is how do we, as citizens, feel about this misconduct? At the end I want to tee up a broader discussion about attorney behavior and legal ethics. Think of this as a case study with specific facts to review.
To make sure everyone’s up to speed, Senator Ted Stevens was accused of corruption for accepting a remodel of a chalet for free, and not disclosing it on his Senate financial disclosure form. After he was indicted, Stevens asked for an expedited trial so he could clear his name before the 2008 election. The trial was held before the election, but the jury found Stevens guilty of corruption, and he narrowly lost his reelection bid. Stevens later died in an airplane crash.
After the trial it was discovered that the prosecution team had withheld numerous documents that supported Stevens’ defense, damaged the credibility of prosecution witnesses, and had knowingly permitted false testimony to stand. As a result, U.S. District Judge Emmett Sullivan vacated the jury’s verdict (for technical procedural reasons, Stevens was not “convicted” of bribery as some in the media have reported), and ordered a special prosecutor to advise as to whether criminal charges should be brought against any of the attorneys on the prosecution team.
After two years of investigation, Special Prosecutor Henry Schuelke issued his 525-page final report last Thursday. I only had time to read the executive summary, and I’m glad I went straight to the horse’s mouth because some of the reporting out there is inaccurate.
Some examples of prosecutorial misconduct are (and imagine that you were in Stevens’ shoes for the purposes of our conversation at the end):
- Withholding letters in which Stevens requested a bill for the work done on the chalet.
- Notes from a conversation with a foreman in which both the foreman and Stevens thought the chalet work had been included in a different invoice for other work done.
- Failing to record notes from witnesses with evidence favorable to Stevens’ defense and harmful to the Justice Department’s case.
- Withholding evidence from the prosecution’s star witness that he had had sex with a 15-year-old prostitute, and had encouraged her to lie under oath in her own trial. The latter fact could be admissible to show the star witness has a character for untruthfulness (which is called impeachment evidence, for those unfamiliar).
- Allowing FBI and IRS agents to conduct document review unsupervised, and to make their own judgments as to whether there was a legal obligation to disclose any of the documents.
- Failing to correct a witness who gave testimony to the jury that the prosecutor knew was false, and later using the same false testimony in his summation to the jury.
The special prosecutor determined that members of the prosecution team had intentionally and knowingly withheld evidence they were under a legal obligation to produce. He concluded, however, that they should not be criminally prosecuted:
Although the evidence establishes that this misconduct was intentional, the evidence is insufficient to establish beyond a reasonable doubt that Mr. Bottini and Mr. Goeke violated the criminal contempt statute, 18 U.S.C. § 401, which requires the intentional violation of a clear and unambiguous order. . . . In large part, this was because of representations made by prosecutors to the Court that such an order was unnecessary. [Emphasis mine.]
Did you catch the last part? The prosecutors told the judge there was no need to order them to comply with the law, because they were aware of their legal obligations—and had already complied. Thus, Judge Sullivan did not issue a formal order, and the special prosecutor concluded that a formal order is absolutely necessary to pursue prosecution under the federal statute. (I have added the pretrial transcript in which the prosecutors lied to the judge at the bottom. I found it bone-chilling.)
The special prosecutor’s report is not binding, however, and Judge Sullivan can still request the Justice Department to pursue charges against the prosecutors. Since lying to a judge in his chambers is an offense of the highest order (don’t think for a moment they’ll ever set foot in his court again), Judge Sullivan may want the law to be interpreted to include instances when attorneys induce a judge into not issuing an order. I’m not expecting it to happen, but I’m sure it’s in his mind.
But while the prosecutors have probably been spared criminal prosecution, they’re not out of the woods. Some are members of the D.C. bar (at least the higher-ups are). Rule 34 of the D.C. Bar’s Rules of Professional Conduct states the following:
A lawyer shall not:
(a) Obstruct another party’s access to evidence or alter, destroy, or conceal evidence, or counsel or assist another person to do so, if the lawyer reasonably should know that the evidence is or may be the subject of discovery or subpoena in any pending or imminent proceeding.
It’s pretty clear to me that they have breached their ethical obligations, and should be sanctioned. In my humble opinion, the conduct of some merits disbarment. But according to this article five days ago, other than Nicholas Marsh—who hanged himself—all of the key players are still practicing, and i could find no evidence that any had been sanctioned by any of their respective bars. (Please let me know if I’m wrong.) It’s my cross-fingered hope that the bar associations have been waiting for the report before proceeding with actions against these attorney.
What Should Happen to the Prosecutors?
I have two questions for anyone who would like to chime in:
1) Do you agree with the special counsel’s conclusion that the prosecutors should not be prosecuted under federal law because the judge did not issue an order specifically directing the prosecution team to comply with the law, even though the attorneys assured the judge they had complied? Put differently, do you agree that the statute should be interpreted narrowly, or would you read it broader in this case because the misrepresentations of the lawyers led to the judge not issuing the order.
2) What should be the fate of the attorneys’ professional careers as a result of their ethical violations? Would you disbar them? Suspend there license? Give them a written sanction, or require them to take additional classes on professional responsibility?
I’ll be curious to hear what you think.
This article is also published at The Country Thinker.
Here is an excerpt of the pretrial transcript of the prosecution lying to Judge Sullivan about complying with their obligation to comply with the law. Brady, Giglio, Safavian, and other names refer to Supreme Court cases that clarify the legal obligations of prosecutors. For example, “Brady material” is material that favors a defendant, while “Giglio material” is harmful to the prosecution:
MR. E. SULLIVAN:… Now, just jumping back over to the Brady-Giglio, just briefly, we fully understand what our obligation is, and I don’t think we need to belabor the Court because the case law is clear on this issue.
THE COURT: What should the Court do?
MR. E. SULLIVAN: We don’t think that there’s anything for the Court to do. We have —
THE COURT: Should the Court just issue an order and say everyone recognizes what Marshall says, Safavian says, Poindexter says, and a litany of other cases say, and so the government is directed to immediately — to forthwith provide to defense counsel any outstanding Brady material as defined by those cases and on an ongoing daily basis provide information as that information becomes in the possession, knowledge, control of the government, should the Court do that?
MR. E. SULLIVAN: We don’t think so, your Honor. We understand —
THE COURT: How are you prejudiced if I do it, though?
MR. E. SULLIVAN: The Court can. If it wants to issue an order to that effect, we will comply with that order.
THE COURT: The government’s position should be, Judge, that’s just surplus, because all of us know what the law is?
MR. E. SULLIVAN: Absolutely, your Honor.
THE COURT: I’ll just issue an order as a general reminder to the government to remind it of its daily ongoing obligation to produce that material.
MR. E. SULLIVAN: Fair enough. We just want to make —
THE COURT: What about impeachment material of government witnesses, though, is that Brady material?
MR. E. SULLIVAN: We have produced both Brady and Giglio. We treated the terms interchangeably. We viewed it all as Brady material.
THE COURT: I don’t need to say anything more about Brady, at least today anyway?
MR. E. SULLIVAN: That’s true, your Honor. One thing we do want to clarify, though, a portion of our letter from last evening was read on the record giving the impression that we’re still sitting on a treasure trove of Brady-Giglio material. That’s simply not the case. …
Id., Transcript of Motions Hearing, Sept. 10, 2008 10:09 a.m., at 73-75.
At the conclusion of that hearing, Judge Sullivan decided that an order directing the prosecutors to disclose Brady information was unnecessary:
THE COURT:… The motion to compel, I think that every aspect of the motion [by Senator Stevens] to compel [Discovery Pursuant to Brady v. Maryland and Fed. R. Crim. P. 16] has been resolved, but I want to be clear about that. You know what, I’m not going to write an order that says “follow the law.” We all know what the law is. The government — I’m convinced that the government in its team of prosecutors is thoroughly familiar with the decisions from our Circuit and from my colleagues on this Court, and that they, in good faith, know that they have an obligation, on an ongoing basis to provide the relevant, appropriate information to defense counsel to beutilized in a usable format as that information becomes known or in the possession of the government, and Iaccept that. I’m not going to — I don’t have the time or the interest to draft another order saying, you know, follow Marshall , follow Savavian[sic], follow Poindexter ,follow all the opinions that my colleagues have issued. Follow the law, and Hinson and Wise [probably should be “hints to the wise”] should be sufficient. …
Id., Transcript of Pretrial Conference Proceedings, Sept. 10, 2008 P.M., at14-15.