Cases that inspired the book

The story of the prosecution of Senator Ted Stevens is, for me, one of the saddest stories in the annals of high-profile federal prosecutions. DOJ’s Public Integrity Section went after Stevens—who was at the time one of the longest-serving Senators in the nation’s history, and who is credited with basically creating the modern state of Alaska—for getting some free renovations on his vacation house. It was a bad prosecution in every way: it bore every appearance of being a publicity stunt aimed at getting a high-profile scalp for promotions and press coverage; it was gratuitously timed right before an election; and the government violated the number one ethical obligation in criminal prosecutions—they failed to turn over to the defense exculpatory evidence in their possession. No one found out until after the trial, but by then it was too late.  Stevens was convicted, then lost his election, then died in a plane crash. 

Except it turned out after the trial that the government had played dirty. Among other things, Stevens was convicted based on testimony from the government’s star witness that was directly contradicted by a prior statement from that witness in his FBI interview that the government never disclosed to the defense. (The government also didn’t disclose that this same star witness had engaged the services of a teenage prostitute, and then urged her to lie about it if caught.) These facts were disclosed after trial by an FBI agent who made a whistleblower complaint that led to the trial judge appointing a special prosecutor to investigate the DOJ misconduct. 

The findings were really bad. Career-ending, law license-threatening bad. And what really got under my skin, and what Jeffrey Toobin’s article describes in excruciating detail, is that the evidence supports the inference that senior DOJ prosecutors—the same ones who’d elbowed their way into the case before trial to get their press conferences and promotions—tried to shovel the shit as far downhill as they could. And it landed on the junior member of the prosecution team, who ended up hanging himself at age 32. 

You read about this and you ask yourself: what does it mean for “the system to work”? In one respect, the system worked: the FBI agent reported the government misconduct and was protected by whistleblower laws. The trial judge took the report seriously and appointed an independent lawyer to investigate and get to the bottom of it. The full story eventually came to light. And in April 2009, the DOJ moved to vacate the conviction and dismiss the indictment. You could say, from that perspective, that “the system worked.” That’s maybe the long-view, institutional perspective. And it’s a valid perspective.

But from a different perspective, the individual human perspective, the perspective of the people whose lives are personally impacted by the workings of institutions, it’s hard to say that the system worked. Senator Stevens’ career and reputation were ruined based on a conviction that was legally unsound and wrongfully obtained. Sure, it was vacated, but too late for him: he lost his Senate seat and saw his reputation shattered. And for the young prosecutor who got thrown under the bus, the system did not work.  

If there are any young prosecutors or defense lawyers who read my book and are interested in what I think, here’s what I have to say to you. 

To the prosecutors: if you’re not doing full-file discovery, start doing it. If your supervisors tell you not to, speak up. You are responsible for how you try your case. If you can’t win your case without withholding evidence from the defense, you’re in the wrong business. If you’ve got the goods on the guy, go in there are convict him. If you want a protective order for something, go ask the judge for one. But do not withhold stuff and make b.s. excuses to yourself that “maybe it’s not really Brady.” That’s bullshit and you know it. That’s dirty, that’s unethical, and that’s weak. If you don’t want to turn it over, it’s Brady. Go in and win your case fair and square, or go find another profession. 

And to defense lawyers: be a bulldog in every case about demanding discovery and litigating it when you don’t get every scrap of paper you ask for. Paper your file with as many emails as it takes to get the prosecutor to directly answer every specific question about what the government has and doesn’t have. If the prosecutor doesn’t turn something over, make him tell you, in writing, that it doesn’t exist. Don’t let him get away with weaselly “to the best of my knowledge” or “it’s my understanding” bullshit. The law on this is clear: the prosecutor cannot play dumb, and just “forget to ask” the cops or agents for what they have. Brady means everything within the knowledge or possession of every single agent, cop, investigator, paralegal, or prosecutor on the government team. File your motions, as many as you deem necessary. Attach all those emails and get them into the record. Stand up and make your record in court.  Demand an evidentiary hearing. If the prosecutor tells you he doesn’t think the agency has anything more, and tries to get away with waving his hands and saying “Your Honor, I’ve provided everything,” then subpoena a custodian of records to come into court and take the stand and say so to the court. If you think there’s a report, or a recording, or a video, or someone’s interview notes, that you haven’t gotten, then keep pushing until you can put someone on the stand to look you in the eye and tell you under penalty of perjury that it doesn’t exist.  That’s your job, and that’s your burden.

Here are some sources on the Stevens case:

-The definitive official report on the case is the Scheulke Report itself, which you can find here: http://www.courthousenews.com/2012/03/16/stevens.pdf 

-Jeffrey Toobin’s article in the New Yorker, which is detailed and heartbreaking: https://www.newyorker.com/magazine/2011/01/03/casualties-of-justice

-My take on the Scheulke Report when it came out, back in 2012. https://prawfsblawg.blogs.com/prawfsblawg/2012/03/the-scheulke-report-on-the-stevens-prosecution-and-some-thoughts-the-adversarial-process-and-prosecu.html