By JOHN FARMER
Published: April 2, 2009
THERE is both good news and bad in the Justice Department’s decision to move to dismiss all charges against former Senator Ted Stevens of Alaska, who had been convicted on seven felony counts of ethics violations. The good news is that Attorney General Eric Holder has done the right thing, acknowledging that his department’s Public Integrity Section, which handles corruption cases, committed egregious misconduct. The bad news is that the broader problem of prosecutorial excess remains unaddressed.
The Stevens case did not occur in a vacuum, and it should not be treated as an isolated instance. Take, as examples, just a few recent cases.
Last year, the City of New York paid $3.5 million to Shih-Wei Su, who had served nearly 13 years in prison on charges related to a shooting at a pool hall in Queens. Judge Guido Calabresi of the United States Court of Appeals for the Second Circuit found that “the prosecution knowingly elicited false testimony from a crucial witness.”
In the Duke University rape case of 2006, the reputations of several students were destroyed by a county district attorney pursuing political ambitions, and who was later disbarred and convicted of criminal contempt.
In 2007, the United States Court of Appeals for the Seventh Circuit took the extraordinary step of ordering the release of a convicted Wisconsin state employee during oral argument; it then reversed her federal conviction, which had been based on the government’s overreaching application of the “theft of honest services” corruption statute. She later said that the United States attorney, who had been appointed by President George W. Bush, offered her leniency if she would cooperate in a case against the governor, a Democrat in a tight re-election campaign.
In 2005, a veteran New Jersey county prosecutor was driven from office after it was leaked to the press that he was under federal investigation for obstruction of justice. No charges were ever filed.
In 2004, a federal judge threw out the convictions of two men accused of being part of a terrorist “sleeper cell” in Detroit after it was discovered that federal prosecutors had deliberately withheld potentially exculpatory evidence from the defense.
What’s going on here? Equally important, beyond the Stevens case, what can be done?
As the examples above show, prosecutorial misconduct takes many forms, from failing to disclose critical evidence to disclosing information illegally to the press to overreaching in the exercise of the prosecutor’s discretion. Underlying all of them is a frightening misconception of the role of the prosecutor.
That role is not to seek the maximum penalty at every turn, nor to put together an impressive statistical tally of convictions. It is not to use the emotional pain and personal ruin involved on all sides of a criminal case to advance one’s own career or personal agenda. Prosecutors do not even share the duty defense lawyers have of providing zealous representation. The prosecutor’s only duty is to seek justice. Period.
This duty is especially important in an age like ours, when the integrity of the criminal justice process is so frequently called into question.
The presumption of innocence vanishes, these days, with the publicity surrounding an accusation. Any criminal defense lawyer has seen firsthand the humiliation and fear experienced by defendants and their families. By contrast, the reputation of the accusing prosecutor rises commensurately, creating an enormous temptation to make the press conference an essential element of the prosecution.
Attorney General Holder has a lot on his plate, but I think only terrorism policy is equally important to issues surrounding the integrity of the justice system. His goal should be to restore the imperative that prosecutors seek justice, nothing more.
One way to do that would be for Mr. Holder to forbid federal prosecutors to conduct press conferences to announce the filing of charges. The mischief done by statements like “The conduct would make Lincoln roll over in his grave,” as issued by the United States attorney in Chicago, Patrick Fitzgerald, in announcing the filing of a criminal complaint against Gov. Rod Blagojevich of Illinois, is almost incalculable. Save the rhetoric for the conviction; a simple press release setting forth the charges and reminding the public of the presumption of innocence will serve the interests of justice.
The attorney general could also seek clarity in the federal criminal statutes in order to narrow the potential for abuse of the prosecutor’s discretion. The “theft of honest services” statute — created in 1988 to counter a Supreme Court decision that politicians could not be convicted of depriving their constituents of "intangible rights" like good government and honest services — is notoriously vague, and thus prone to prosecutorial overreaching. As Judge Frank Easterbrook of the Seventh Circuit wrote in the Wisconsin case, “The idea that it is a federal crime for any official in state or local government to take account of political considerations when deciding how to spend money is preposterous.”
The Justice Department should commit to investigating all illegal disclosures of grand jury evidence and instances of courtroom misconduct, and to punish those responsible.
Above all, Mr. Holder should promote the idea that the prosecutor’s job, understood properly, is an end in itself, not a stepping stone to higher office. The powers to accuse, to arrest and to prosecute are the most fearsome conferred by our society. The abuse of those powers, historically, has been the very definition of tyranny. Accordingly, the attorney general should consider supporting a rule barring prosecutors from seeking higher office for two to five years after their tenure ends.
The motives underlying a decision to prosecute may rarely be beyond reproach, but they should always be above politics.
John Farmer, a lawyer, was the attorney general of New Jersey from 1999 to 2002.