Saturday, April 11, 2009

Guest Shot: Conviction thrown out, tables turn on prosecutors

The following opinion was published in the Indianapolis (Indiana) Star on April 10, 2009.

Conviction thrown out, tables turn on prosecutors
by Ken Bode

In 1987, when a jury found Ronald Reagan's former Secretary of Labor, Raymond Donovan, not guilty of fraud and larceny, Donovan asked the prosecutor, "Which office do I go to to get my reputation back?"

That is often the question in failed, high-profile public corruption cases. The thought must have passed through the mind of former Alaska Sen. Ted Stevens this week, when, at the request of Attorney General Eric Holder, a federal judge in Washington threw out the ethics conviction that cost him the Senate seat he'd held longer than any other Republican.

This time, however, Judge Emmet Sullivan went further. He named a special counsel to investigate whether six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section, should face criminal charges. Angrily, Judge Sullivan warned about what he called "a troubling tendency" among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases.

When winning cases -- "getting another scalp on the belt" -- becomes the optimal outcome, ambitious prosecutors have been known to withhold evidence from the defense (as in the Stevens case), make sleazy deals with jailhouse informants and use coerced confessions to made their case.

In Illinois, so many Death Row wrongful convictions were revealed that Gov. George Ryan in 2003 issued a blanket commutation to life sentences for all prisoners facing capital punishment. In 2006, five Death Row convictions were overturned in North Carolina because prosecutors had withheld evidence pointing to a defendant's innocence.

What surprised me about the Stevens case is that Public Integrity lawyers were the miscreants. Over more than 25 years working as a network correspondent, I used sources in the Public Integrity section to report on cases of political corruption and vote fraud in Chicago, Philadelphia, Louisiana, West Virginia, North Carolina, Alabama and here in Indiana. I watched them build cases involving vote-buying, conspiracy, kickbacks, you name it, and they almost never failed to get a conviction. Not interested in loosey-goosey justice, they built solid cases.

One of the things the Public Integrity folks emphasized, especially in high-profile political cases, was a final Washington review of the investigators and prosecutors in the field. Their motto was some variation of, "If you rise up to strike the king, you'd better kill him." They wanted no instances of ambitious prosecutors bringing charges against elected officials only to find the case involved weak witnesses, withheld evidence or a political vendetta.

They were purists. In Alabama, I watched them drop a case at the courthouse door when journalists reported on prosecutorial harassment of witnesses and potential defendants. So, when I watched the case against Stevens go forward, I felt pretty certain that federal prosecutors had the goods. Surely if you bring corruption charges in an election year against the most senior senator in the Republican Party, you will bring nothing but a slam-dunk case.

I believe this is why Judge Sullivan was so angry in his rebuke to government lawyers in the Stevens case. During the trial, the judge held three prosecutors in contempt for failing to produce documents, and scolded them for introducing evidence they knew to be inaccurate. The prosecutorial misconduct was intentional, said the judge, and when Stevens' lawyers repeatedly called it to the attention of former Attorney General Michael Mukasey, they were ignored.

Against this outcome, the gifts Stevens allegedly received -- a puppy, a stained glass window, remodeling of his country chalet and a vibrating lounger -- seem penny-ante. Because he was convicted eight days before the election, this outlandishly flawed trial cost Stevens not just his reputation but his Senate seat as well.

In Alaska, there are calls for a new election. I endorse that. In Washington, Georgetown University law students who signed up for a course on public corruption are looking for a new professor. Brenda Morris, the lead prosecutor in the government's case against Stevens, won't be available. She now faces criminal charges herself.

Ken Bode is the former national political correspondent for NBC News and a former political analyst for CNN. Contact him at


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