- - Tuesday, April 7, 2015


Prosecutors, like cops, usually deal with people who aren’t very nice. Prosecutors at every level rarely see the occasional bursts of human kindness that lead the rest of us to see the good among the bad. Unfortunately, some prosecutors, blind to the good among the bad, conclude that evildoers don’t deserve a break, that the important thing is to get evildoers behind bars, so anything goes. If no actual evildoers are available, make one up.

Judith Miller was a reporter for The New York Times who was a figure in the Justice Department’s case against Lewis “Scooter” Libby, the chief for staff for Vice President Dick Cheney, and she writes in her new memoir how she was misled and manipulated by the government prosecutors who indicted and convicted Mr. Libby for leaking information about Valerie Plame’s work for the Central Intelligence Agency.

Miss Miller is outraged that she may have helped an unscrupulous prosecutor to railroad an innocent man, but the further outrage is how the conduct of Patrick Fitzgerald, the U.S. attorney prosecuting Mr. Libby, is common among prosecutors. The late Ted Stevens, the Republican senator from Alaska, for example, was hounded to an early death by false prosecution by the same Justice Department gang now trying to send another senator, Robert Menendez of New Jersey, a Democrat, to prison. The conviction of Mr. Stevens was thrown out by an appeals court that condemned the unethical and illegal conduct of the government lawyers.

Patrick Fitzgerald, the prosecutor of Ted Stevens, persuaded witnesses to testify not to what they saw or heard, but to what he wished they had seen and heard. He ignored the so-called “Brady Rule,” adopted by the Supreme Court in 1963, that requires prosecutors to provide defense access to information it collects that clears the defendant.

The prosecutors of Scooter Libby, a team led by the same Patrick Fitzgerald, deliberately withheld evidence that could have persuaded a jury of Mr. Libby’s innocence. Miss Miller writes that he manipulated her memory as he prepared her to testify, and “steered” her “in the wrong direction.” This crossed an ethical and legal line that in a world both fair and just would have cost Mr. Fitzgerald his license to practice law. He might be flipping burgers in an obscure bistro today. Instead he is still a lawyer, now employed by the Chicago firm of Skadden Arps.

It didn’t cost him his job; we do not live in a fair and just world, and in all the states but Texas practitioners of the legal trade get to police themselves, a remarkable advantage that bank robbers, embezzlers, drug dealers, shady bankers and others who practice the dark arts do not have. Violators of the Brady Rule are brought before a committee of the Justice Department, a bar association or a court and the evidence is weighed by lawyers, men and women who might have played fast and loose with the rules. Like Mr. Fitzgerald, they think because they write the laws they’re not required to obey them.

Ken Cuccinelli, a former state attorney general in Virginia, once observed that the problem with many prosecutors is that they forget that their job is not necessarily to convict evildoers — and those who did bad but not necessarily evil things — but to serve justice and protect the innocent. That’s not nearly as much fun as taking applause for sending someone to prison, but the rest of us deserve consideration, anyway.



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