Why Must Prosecutors Be Told to Follow the Law?

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.