Commentary Magazine


Topic: Ted Stevens

A Corrupt Criminal Justice System

Glenn Reynolds not only runs the indispensable Instapundit website, he is also a distinguished law professor at the University of Tennessee and writes a regular column for USA Today. Today’s column is an important one, “Our Criminal Justice System Has Become a Crime.”

The problem with the system is that prosecutors have acquired far too much power and face few consequences for bad behavior. Prosecutorial discretion—deciding whom to go after and whom to ignore—is an open invitation to corruption. And this corruption can have consequences beyond the individuals involved. Had Senator Ted Stevens not been convicted a week before he narrowly lost reelection in 2008 in a trial that involved “gross prosecutorial misconduct,” he undoubtedly would have been reelected and the Democrats would not have had the sixty votes in the Senate they needed to ram ObamaCare through.

Criminal statutes have proliferated to such an extent that the federal government doesn’t even know how many federal criminal statutes there are. People break laws all the time without knowing it. So a prosecutor investigating an individual can often find evidence of dozens, even hundreds, of “crimes” and charge the individual with them. And usually the case never goes to trial. Instead the person charged is offered a plea bargain and has no real option but to take it.

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Glenn Reynolds not only runs the indispensable Instapundit website, he is also a distinguished law professor at the University of Tennessee and writes a regular column for USA Today. Today’s column is an important one, “Our Criminal Justice System Has Become a Crime.”

The problem with the system is that prosecutors have acquired far too much power and face few consequences for bad behavior. Prosecutorial discretion—deciding whom to go after and whom to ignore—is an open invitation to corruption. And this corruption can have consequences beyond the individuals involved. Had Senator Ted Stevens not been convicted a week before he narrowly lost reelection in 2008 in a trial that involved “gross prosecutorial misconduct,” he undoubtedly would have been reelected and the Democrats would not have had the sixty votes in the Senate they needed to ram ObamaCare through.

Criminal statutes have proliferated to such an extent that the federal government doesn’t even know how many federal criminal statutes there are. People break laws all the time without knowing it. So a prosecutor investigating an individual can often find evidence of dozens, even hundreds, of “crimes” and charge the individual with them. And usually the case never goes to trial. Instead the person charged is offered a plea bargain and has no real option but to take it.

As Reynolds points out, while a criminal trial positively bristles with due process—especially the jury’s power to determine guilt—the pretrial process has little due process. Prosecutors decide whom to investigate and what charges to file. Grand juries seldom refuse to indict.

Reynolds has solutions:

First, prosecutors should have “skin in the game” — if someone’s charged with 100 crimes but convicted of only one, the state should have to pay 99% of his legal fees. This would discourage overcharging. (So would judicial oversight, but we’ve seen little enough of that.) Second, plea-bargain offers should be disclosed at trial, so that judges and juries can understand just how serious the state really thinks the offense is. Empowering juries and grand juries (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich) would also provide more supervision. And finally, I think that prosecutors should be stripped of their absolute immunity to suit — an immunity created by judicial activism, not by statute — and should be subject to civil damages for misconduct such as withholding evidence.

As Reynolds likes to say, read the whole thing. This problem needs much more attention.

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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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