Commentary Magazine


Posts For: September 20, 2013

The Havoc of Prosecutorial Misconduct

With the exoneration of Tom Delay in Texas yesterday, yet another high-profile case of prosecutorial misconduct has emerged. This follows such other cases as that of Ted Stevens in 2008, and the notorious Duke Lacrosse case. But these were all cases in which top-flight legal talent was able to uncover the misconduct. There are many more that go unrecognized. The Innocence Project of Florida lists numerous examples, including one in which a man spent 25 years in jail for the murder of his wife, a murder he didn’t commit. They have a list of 1,100 exonerations in the years 1989-2012. Forty-two percent of those false convictions were caused by official misconduct, roughly half by the police and half by prosecutors.

Beyond the individual tragedy of an innocent man rotting in jail, these cases can have national repercussions. Senator Ted Stevens was convicted of seven counts of making false statements on October 27th, 2008. Outrageous prosecutorial conduct was soon revealed and Attorney General Holder asked that the convictions be set aside, which they were.

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With the exoneration of Tom Delay in Texas yesterday, yet another high-profile case of prosecutorial misconduct has emerged. This follows such other cases as that of Ted Stevens in 2008, and the notorious Duke Lacrosse case. But these were all cases in which top-flight legal talent was able to uncover the misconduct. There are many more that go unrecognized. The Innocence Project of Florida lists numerous examples, including one in which a man spent 25 years in jail for the murder of his wife, a murder he didn’t commit. They have a list of 1,100 exonerations in the years 1989-2012. Forty-two percent of those false convictions were caused by official misconduct, roughly half by the police and half by prosecutors.

Beyond the individual tragedy of an innocent man rotting in jail, these cases can have national repercussions. Senator Ted Stevens was convicted of seven counts of making false statements on October 27th, 2008. Outrageous prosecutorial conduct was soon revealed and Attorney General Holder asked that the convictions be set aside, which they were.

But a week after his trial, the 7-term senator lost re-election by 3,724 votes. There can be little doubt that had this case not been brought, which it obviously should not have been, he would have cruised to re-election. What difference, except to Ted Stevens, did that make? A lot: his successful Democratic rival provided the 60th vote in the Senate in 2010 to push ObamaCare through.

It was prosecutorial misconduct that gave us the most unpopular major piece of legislation in American history. 

Why does this happen so often in this country? In a high-profile case, there can be tremendous pressure on both the police and the prosecutors to produce a perp and then a conviction. Cutting corners is one way to do that. But also, prosecuting attorneys in this country, uniquely in the common-law world, are politicians. Winning a major case is a big addition to their résumé.

While there was no misconduct in the prosecution of Martha Stewart, it is highly unlikely that there would have been a criminal case at all had she merely been rich and not both rich and very famous. At worst, she would have been forced to “disgorge the profits.” So, basically, Martha Stewart was tried for the crime of being Martha Stewart. (To be sure, her legal team completely bungled the case, making her conviction much more likely.)

It is impossible to take the politics out of the office of prosecuting attorney. It is too deeply imbedded in the American system. (Tom Dewey, after all, went from Manhattan District Attorney to the very door of the White House in less than a decade.) But severely punishing prosecutorial misconduct—complete with disbarment and serious jail time—would go a long way towards making ambitious prosecutors think twice before withholding exculpatory evidence and other such misconduct.

But such misconduct is hardly ever punished. No one thinks the prosecutor in the Tom Delay case will suffer any penalty. The prosecutors in the Ted Stevens case were fired from the Justice Department, but remain free men. Only Mike Nifong, the prosecutor in the Duke Lacrosse case, was punished by disbarment. Convicted of criminal contempt, he spent one day in jail.

Lawyers, it seems, take care of their own, regardless of how deeply they stain the profession of law.

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The Excuses for Failure Are About to Begin

Now that House Republicans have done what Senators Ted Cruz, Mike Lee, Rand Paul, and Marco Rubio (and others) asked, which is to vote to defund the Affordable Care Act, we’ll be able to test whether it will achieve its purpose.

It won’t.

It’s been obvious since the hour this idea was hatched that the Affordable Care Act would not be defunded given the current political conditions. But those who have been pushing the defunding strategy pretended this was a possibility, which is why they insisted this moment was so vital. If you didn’t come on board the defunding campaign, it was said, then you owned ObamaCare. Those who championed what Cruz and Company advocated desperately tried to frame this as a debate between those who were against the Affordable Care Act and those who were willing to live with it.

This was never true. Virtually every Republican wants to put an end to ObamaCare. The problem is that it’s not doable as long as Barack Obama is president and Democrats control a majority in the Senate. Which means the debate all along was about nothing more than symbolism and tactics.

That’s all.

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Now that House Republicans have done what Senators Ted Cruz, Mike Lee, Rand Paul, and Marco Rubio (and others) asked, which is to vote to defund the Affordable Care Act, we’ll be able to test whether it will achieve its purpose.

It won’t.

It’s been obvious since the hour this idea was hatched that the Affordable Care Act would not be defunded given the current political conditions. But those who have been pushing the defunding strategy pretended this was a possibility, which is why they insisted this moment was so vital. If you didn’t come on board the defunding campaign, it was said, then you owned ObamaCare. Those who championed what Cruz and Company advocated desperately tried to frame this as a debate between those who were against the Affordable Care Act and those who were willing to live with it.

This was never true. Virtually every Republican wants to put an end to ObamaCare. The problem is that it’s not doable as long as Barack Obama is president and Democrats control a majority in the Senate. Which means the debate all along was about nothing more than symbolism and tactics.

That’s all.

As this process unfolds, and as this defunding gambit is exposed for what it was—a very bad, misleading, and half-baked idea—those who championed it will be in a vulnerable position. So here’s a prediction: They will engage in a frantic face-saving operation. They’ll argue that the problem wasn’t with them and their unwise idea; they’ll say it failed because of the lack of solidarity from other Republicans; they’ll claim that Republicans unfortunately signaled they weren’t serious about defunding and therefore the effort failed. they’ll say the blame rests not with them (intrepid Men of Principle) but with others (spineless RINOs).

This will be an excuse, and a particularly pathetic one. But it’s the only card they have to play, and play it they will. So sit back and watch the revisionism begin. 

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What to Make of Rouhani’s Letter?

Over at AEI-Ideas, I take a look at Iranian President Hassan Rouhani’s op-ed in today’s Washington Post and argue that, while we shouldn’t be afraid to take “yes” for an answer, Rouhani’s sincerity is extremely unclear. Both the late Egyptian President Anwar Sadat and the late Libyan leader Muammar Qaddafi made grand gestures to demonstrate their respective changes of heart.

Alas, reading the tea leaves back in Tehran does not give cause for optimism. As Will Fulton points out in his invaluable “Iran News Round Up,” on September 17, Rouhani suggested creating a commission “to pursue spiritual and material compensation” from the United States and United Kingdom for their role in the 1953 coup against Iranian Prime Minister Mohammad Mosaddeq.

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Over at AEI-Ideas, I take a look at Iranian President Hassan Rouhani’s op-ed in today’s Washington Post and argue that, while we shouldn’t be afraid to take “yes” for an answer, Rouhani’s sincerity is extremely unclear. Both the late Egyptian President Anwar Sadat and the late Libyan leader Muammar Qaddafi made grand gestures to demonstrate their respective changes of heart.

Alas, reading the tea leaves back in Tehran does not give cause for optimism. As Will Fulton points out in his invaluable “Iran News Round Up,” on September 17, Rouhani suggested creating a commission “to pursue spiritual and material compensation” from the United States and United Kingdom for their role in the 1953 coup against Iranian Prime Minister Mohammad Mosaddeq.

While that might sound good to a self-flagellating audience of American intellectuals, putting aside whether the coup was wise or not given the Cold War context, the simple fact is that the Iranian clergy was complicit in the coup and, indeed, had made an alliance of convenience with the U.S., British, and Iranian military: All feared Mosaddeq’s populism, which, to be frank, was about as democratic as Jean-Bertrand Aristide’s in Haiti.

That Rouhani wants the United States to pay Iran for the 1953 coup which his teachers and predecessors supported shows just how manipulative and insincere he is in his populist games in Tehran and Washington.

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Turkish Pianist Sentenced for Blasphemy

Just over four months ago, President Obama stood beside Turkey’s Prime Minister Recep Tayyip Erdoğan and spoke warmly of the relations between the two countries and his personal friendship with Turkey’s leader. While they stood together, Erdoğan’s security forces were seizing yet another independent media company; it would soon be transferred to his political allies.

Alas, the situation is going from bad to worse in Turkey. From today’s Hürriyet Daily News:

World-renowned Turkish pianist Fazıl Say, who was sentenced to 10 months in prison for blasphemy in April, was again sentenced to 10 months by an Istanbul court today in a retrial. Say had received a suspended 10-month prison sentence on charges of “insulting religious beliefs held by a section of the society,” for re-tweeting several lines, which are attributed to poet Omar Khayyam… Say was convicted after tweeting the following lines: “You say its rivers will flow in wine. Is the Garden of Eden a drinking house? You say you will give two houris to each Muslim. Is the Garden of Eden a whorehouse?”

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Just over four months ago, President Obama stood beside Turkey’s Prime Minister Recep Tayyip Erdoğan and spoke warmly of the relations between the two countries and his personal friendship with Turkey’s leader. While they stood together, Erdoğan’s security forces were seizing yet another independent media company; it would soon be transferred to his political allies.

Alas, the situation is going from bad to worse in Turkey. From today’s Hürriyet Daily News:

World-renowned Turkish pianist Fazıl Say, who was sentenced to 10 months in prison for blasphemy in April, was again sentenced to 10 months by an Istanbul court today in a retrial. Say had received a suspended 10-month prison sentence on charges of “insulting religious beliefs held by a section of the society,” for re-tweeting several lines, which are attributed to poet Omar Khayyam… Say was convicted after tweeting the following lines: “You say its rivers will flow in wine. Is the Garden of Eden a drinking house? You say you will give two houris to each Muslim. Is the Garden of Eden a whorehouse?”

Perhaps senior diplomats—some former U.S. ambassadors to Turkey and men like Assistant Secretary of State Dan Fried, who downplayed Erdoğan’s Islamism and suggested his party was nothing more than the Turkish equivalent of a European Christian Democratic Party—might want to consider how they got Turkey so wrong. 

For Turkish liberals, businessmen, students, and secularists who are striving for a constitutional order where rule-of-law trumps any prime minister’s personal orders and an independent judiciary reigns supreme, the worst aspect of American behavior is that so many American figures are lending their endorsement not to Turkish-American relations but rather to Erdoğan’s agenda. Namik Tan, Turkey’s ambassador to the United States, has made it clear that the Turkish government interprets membership in the Congressional Turkish Caucus as a sign of endorsement of Turkey’s anti-liberal, anti-democratic, anti-secularist, and anti-free speech agenda. And yet, despite everything, more than 130 members of Congress, continue to effectively endorse a government which engages in blasphemy trials with a frequency now rivaling Iran and Saudi Arabia.

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