Brendan V. Sullivan Jr., a partner at the law firm of Williams & Connolly, was the senior trial counsel for Sen. Ted Stevens.
In late May, the Justice Department finally completed its three-year investigation of the miscreant prosecutors who obtained an illegal verdict
against Sen. Ted Stevens in 2008.
That verdict caused the Alaska
to lose his reelection bid and changed the balance of power in the Senate. The department’s actions in this matter have fallen too far short.
After the trial, new prosecutors — appointed after the original prosecutors were held in contempt for failing to produce documents — discovered that the government had engaged in wrongdoing affecting the case’s most important evidence. The conduct was so outrageous that newly appointed Attorney General Eric Holder concluded the case should immediately be dismissed. And when trial Judge Emmet Sullivan (no relation) dismissed the case in April 2009, he said it was the worst misconduct he had seen in 25 years on the bench.
Sullivan appointed an independent investigator, former federal prosecutor Henry Schuelke, who noted in a 500-page report 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.”
The results of the Justice Department’s own investigation came in a 672-page report released in May. Its publication on the eve of Memorial Day weekend stood in sharp contrast to the many front-page stories the department’s public relations experts orchestrated during the unlawful prosecution of the senator.
Holder deserves credit for recognizing the extent of the prosecutors’ misconduct and seeking an immediate dismissal. The day after the case was dismissed, the attorney general went to the courthouse where Stevens was tried and personally swore in a new group of assistant U.S. attorneys. He told them: “Your job as assistant U.S. attorneys is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing.”
There could not be a clearer standard of conduct for our federal prosecutors.
Or so it seemed until the Justice Department’s report was released. Among its many conclusions:
l Some prosecutors engaged in “reckless professional misconduct.” This new term in the law appears to be an effort to characterize wrongdoing of a lesser grade than “intentional.”
l Prosecutors violated Justice’s obligations under constitutional principles (and department policy) by failing to disclose exculpatory statements by a chief witness and others. 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.