THOMASSON: Prosecutorial misconduct

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By Dan K. Thomasson

COMMENTARY:

In television's long-running "Law and Order" series, the prosecutors are portrayed as righteous, dedicated searchers for the truth who seldom, if ever, fail to find it. And the defense attorneys are depicted as a necessary evil, capable of underhanded, devious action to free their clients whom everyone knows are guilty.

Other entries in the legal free-for-alls that have been a TV staple have taken the opposite tack, giving the edge to those representing the downtrodden accused.

Reality, of course, lies somewhere in between with the justice scales tipping one way or another on an individual basis.

But it is safe to say that the modern prosecutor now bears a share of the blame in a series of dramatic instances that make it clear that ambition at the expense of truth and, therefore, of the accused is often a motivating factor. One celebrated miscarriage after another obviously brought on by the career-enhancing rush for conviction has certainly shown that.

The blizzard of revealed cases of unjust jailing for everything from murder to rape is breathtaking. More than 100 of those sentenced to death or life in prison have been freed by scientific evidence and prosecutorial misconduct. And efforts are under way to make DNA testing mandatory where possible, especially in capital cases.

But few cases of ethical laxity reach the magnitude or threaten to undercut the fairness of the criminal justice system as much as did the conviction of Alaska's Ted Stevens, who until his defeat in the last election was the longest-serving Republican member in the U.S. Senate.

At the recommendation of U.S. Attorney General Eric Holder, Mr. Stevens' conviction was overturned and six members of the Justice department team involved in his case face investigation and possible criminal indictment. The presiding federal judge, Emmet G. Sullivan, was so furious that he ordered a special inquiry into the action of the government's lawyers.

Mr. Stevens lost his bid for re-election narrowly after his conviction, and there seems little doubt he would have been sent back to Congress otherwise.

It was a brutal blow to his family and to his party and, for that matter, to the state he had served for so long. It appears there was plenty of suppressed evidence that might have exonerated him or even convinced a more prudent prosecutor not to indict in the first place.

There have been calls for a new election, but that seems doubtful.

Judge Sullivan himself must bear some of the blame in this instance. There were signs throughout the entire proceedings that something was amiss with the federal lawyers and that their case clearly was not as strong as it should have been. On more than one occasion, the judge challenged the government's actions in strong language and issued orders from the bench.

After the conviction, an FBI agent blew a whistle and Mr. Holder conducted his own investigation. He was appalled, concluding quickly that there were major ethical and possible legal breaches within the department, including the devastating withholding of notes that would have completely undermined the key witness' testimony.

If there is a glimmer of hope for the system, it is in the new attorney general's quick recognition of impropriety and an even quicker decision that Mr. Stevens had been seriously wronged. He also moved rapidly to overhaul the department's Office of Professional Responsibility.

So often prosecutors refuse to concede flaws in their actions, standing pat even in the face of overwhelming evidence. Their standard response is that the jury has spoken, even when the most legally untutored of us understands that most panels ignore the reasonable doubt mandate, shifting the burden of proof to the defendant.

Henry Peterson, who was the career head of the Justice Department's criminal division and a key figure in the investigation and prosecution of Watergate, demanded of his lawyers that any case they brought against a public figure be 99.9 percent provable. The potential loss to both sides, he said, could be devastating otherwise.

Mr. Stevens, at 85 and still vital and irascible, is clearly a case in point. Both the system and the man are victims.

• Dan K. Thomasson is the former editor of the Scripps Howard News Service.