Constitutional Law

Why Must Prosecutors Be Told to Follow the Law?

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Today U.S. District Judge Emmet Sullivan, who presided over the 2008 corruption trial of the late Sen. Ted Stevens (R-Alaska), revealed that an investigator he appointed found "systematic concealment" of information that prosecutors were constitutionally obligated to share with the defense. In 2008, after he was convicted of concealing $250,000 in gifts, Stevens narrowly lost his bid for an eighth Senate term. Five months later, after an FBI agent reported that prosecutors had withheld potentially exculpatory evidence, Attorney General Eric Holder asked Sullivan to dismiss the case against Stevens. Sullivan then asked Washington lawyer Henry Schuelke III to look into what he called the most serious example of prosecutorial misconduct he had seen since he became a judge in 1984.

Sullivan said he would release Schuelke's 500-page report after letting the Justice Department and Stevens' lawyers review it. Summarizing its findings, he said the investigation and prosecution of Stevens, who died in a plan crash four months after the case against him collapsed, were "permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness." Furthermore, Schuelke found that "at least some of the concealment was willful and intentional." Nevetheless, Sullivan said, criminal contempt charges are not appropriate, because the prosecutors never violated a "clear and unequivocal" order that they "follow the law." Nor will the responsible prosecutors be held civilly liable, since they enjoy absolute immunity from lawsuits based on injuries they cause in the course of their work. The high-profile conviction of Stevens, which was reversed much more quickly than those of less famous and influential defendants victimized by this kind of prosecutorial misconduct, highlights once again the problems with that policy.

In 2008 I argued that Stevens' real crimes were perfectly legal. A couple of weeks ago, I noted the history of hiding exculpatory evidence at the Orleans Parish District Attorney's Office. More on prosecutorial immunity, including a bunch of cogent pieces by Radley Balko, here.

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  1. Oh, so I can rob banks? Nobody has given me a “clear and unequivocal” order to the contrary.

    1. No, this exception only applies to government employees.

      1. Then, can government employees can rob banks?

        1. I kan haz loote?

        2. Of course. They already do.

  2. Why must prosecutors be told to follow the law? Because they often work at the will of elected people whose definition of what is and is not in line with the law is often murky. Basically, it’s a balance between personal integrity and job security.

    1. There’s only one prosecutor I know of with any personal integrity, and he is able to win re-election. In Texas.

        1. Craig Watkins, yes.

          1. BTW, just last week on Facebook he was publicizing the 25th criminal exoneration in Dallas County. A DA, PUBLICIZING an exoneration. Unheard-of.

    2. Fuck off, sockpuppet.

  3. Why must prosecutors be told to follow the law? Because their job prospects improve greatly when they ignore it every chance they get.

  4. So the guys whose job it is to enforce the law, have to be told clearly and unequivocally to follow it or else they aren’t liable. Citizens, on the other hand, can be prosecuted for breaking laws they didn’t even know existed.

    I am so using this in my defense if necessary.

  5. Being a prosecutor is something you do while you lay the groundwork to run for governor. Why would you expect a prosecutor to give a shit about the law?

  6. Can we impeach Sullivan?

    WTF?

  7. It’s been said before, but it bears repeating every time a story like this crops up: prosecutors who knowingly withhold exculpatory evidence in an attempt to win a conviction should go to prison for a term equal that which they sought for the person they were prosecuting.

  8. And it is worse than even that. Because of this sham prosecution, Stevens didn’t win re-election and Marc Beich a Dem did. Given the subsequent results of a 60 seat Dem senate, that race tipped the balance and gave us Obamacare. All because of a corrupt criminal prosecution.

  9. …who died in a plan crash four months after the case against him collapsed…

    That plan? To stay airborne just a little bit longer.

    1. I like the orange one’s final pounce at the end. He is like a hyper version of the kitty I had growing up, who was super mellow and would lie nice and still while my sisters and I dressed him in dolls’ clothes and pushed him around in a carriage.

      1. Growing up, I had an orange guy who was a complete maniac. He liked to hide in the flowers and launch himself into the back of my mom’s knee, and then bite her ass as she fell down.

        1. Our orange one is pretty calm, considering he grew up feral. The two torties, on the other hand, are evil little demons.

          1. Torties and calicos are all demonspawn.

            1. We had Siamese growing up. They are truely insane. Wonderfully loyal and beautiful cats. But absolutely insane. Playing with one was like playing with a lit M80. You never knew when it was going to blow up and leave you screaming and bleeding.

              The first cat I had as my own as an adult was a beautiful orange calico I captured in Texas. She would get bored and run up and slap me in the face and run off as I laid on my couch. And I was the only person she liked. She hated my g/fs with a passion.

              1. I have one now who the vet thinks is part Siamese. She’s the most loving, stupidest, fattest thing in the entire world. She’s the only cat I’ve ever known who manages to fall off the bed.

                1. She is clearly only part siamese. We never owned one that wasn’t a lean mean killing machine. We had a female for years that was the runt of the litter and barely weighed six pounds. She once killed a venomous snake in our garrage. Best mouser ever.

              2. Playing with one was like playing with a lit M80. You never knew when it was going to blow up and leave you screaming and bleeding.

                Nice simile. I’m still chuckling. We adopted a stray cat that wandered in from the prairie behind our house in Killeen, TX. Same thing. The cat would curl up on your chest, fall asleep, and purr away. Then, it would jump up, bite your face, and start shredding your arms and hands. I was a little kid, and would have to run out of the house just to get away from it. Smokey… hell of a cat.

            2. We just picked up a 4 mo. old all-black kitten on Friday. It’s terrorizing the shit out of my 3-year old cat, which is good, since it’s gotten so soft. Time to get some exercise, fatty.

      2. Every kid should have a pet.

    2. So white people fight cats, and it’s an internet sensation? I fight a couple of dogs, and go to prison for two years. Ain’t that a bitch!

  10. It’s old axiom that the rule of law is partly what separates the USA from various banana republics. Draw your own conclusions.

    1. my conclusion is that malfeasence & misrepresentation effects prosecutors just like wall street.

      1. Sumdai wen i gro up im gonna lurn ho 2 speel wurds 2 lol

  11. BTW, just last week on Facebook he was publicizing the 25th criminal exoneration in Dallas County. A DA, PUBLICIZING an exoneration. Unheard-of.

    This should be advertised more than convictions; it would show integrity within the system and inspire confidence that an imperfect system can rectify its errors in a public and transparent manner.

    It’s the presumption of innocence until proven guilty beyond a reasonable doubt that seems to have went the way of the dodo, and if later evidence shows otherwise and exonerates the convicted, then that should be shouted from the rooftops and show that the system can be trusted somewhat.

    1. No. We have to look forward, not backward.

      1. What do I have to look forward to ?

  12. He is like a hyper version of the kitty I had growing up, who was super mellow and would lie nice and still while my sisters and I dressed him in dolls’ clothes and pushed him around in a carriage.

    I don’t know whether to laugh, coo in a high falsetto, or cut you off of the fun drugs for blatant animal cruelty. AND TO A KITTY TOO! I’ll render a decision by the end of the day…

    1. Poor kitty. No cat should have to suffer that indignity.

      1. Cats are evil geniuses. Make no mistake, at some point Dagny and her sisters were paid back with interest.

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