Foul Play: After Ted Stevens Debacle, DOJ Sends Prosecutors a Sharp Message

The duty to share exculpatory evidence with the defense is not a gray area. In the words of one former U.S. attorney: "It's Prosecution 101." So the revelation of withheld evidence that led to the dismissal of former Sen. Ted Stevens' corruption conviction has not just further tarnished the Justice Department, it has left former prosecutors shaking their heads in dismay.

"It was quite disappointing," says Wendy Wysong, a partner at Clifford Chance and a former assistant U.S. attorney in the District of Columbia. "As a former prosecutor, I sympathize with the prosecutors in the sense that obviously they were taken by surprise that the case went to trial so quickly. On the other hand, we're trained to never indict until we're ready to go to trial."

The high-profile prosecutorial misconduct cast another shadow over the department, just as it works to gain distance from Bush-era controversies and establish a new culture under Attorney General Eric Holder.

While no one expects the DOJ to change its priorities as a result of the Stevens affair, the debacle has already affected policy. On April 14, Holder announced enhanced training for all prosecutors on sharing evidence. And the precedent of misconduct may provide new leverage for corporate defendants to push back against what they perceive as prosecutorial excess.

Prosecutor's Nightmare

Prosecutors are a tight-knit group, even after they go over to the other side. These days they seem to share a kind of funk over the Stevens case.

"I think the white collar bar is all following it because it's sort of a prosecutor's nightmare," says Patrick Collins, a partner at Perkins Coie and a former U.S. attorney in Chicago. "You're taught from day one that your job is to seek justice and not to win. Every prosecutor who has a high-profile case wants to win. At some point, there can be a tension between winning and doing the right thing."

Collins says there is no excuse for not turning over exculpatory evidence and doesn't buy the notion that it slipped through the cracks. (In this case, the evidence in question was a contradictory statement on the value of Stevens' home by star witness Bill Allen.)

"It was material; it's not something you forget," he says. "For every prosecutor it's second nature that if you get something like this you get it in a report and turn it over. Again, it's this tension between winning versus doing justice. I think that some prosecutors forget that there is a big distinction there, and [think] winning transcends all else. It can't. Once you've done that, you've lost your soul as a prosecutor."

Politics can be a factor. The more prominent a case, the more input, management and even overt pressure flow from political appointees at the top of the department.

Partisanship is not the issue so much as managing careers that are governed by election cycles. This was a case, after all, of a Republican-led DOJ taking down a senior Republican senator as the clock ticked toward an election that showed every indication of heavy Democratic gains. But the highly charged tenor of a headline-grabbing case can affect even the career prosecutors in the trenches.

"One of the things that happens in a political or high-profile case like this is that there's a huge push to get it done before a change in the administration," says a former prosecutor who asked not to be named. "As government lawyers think about re-entering the private sector at the end of an administration, they want to leave a mark with a big case. In that sense, sometimes the political process overwhelms careful preparation."

One Bad Cop

As much as former prosecutors wince at the blow to their fraternal pride, they don't deny that the Stevens uproar opens a line of defense for their clients.

"This is a good time for corporate defendants who feel like they are being unfairly targeted or unfairly treated," says Wysong. "Prosecutors don't want to be seen as bullies or as unethical. I think companies will get a good reception from judges as well. People are going to be sensitive about this because they've seen the pendulum go too far."

As long as prosecutors stay on the straight and narrow, they carry the full gravitas of their office: upholders of the law, defenders of the common good. But when they stray, the script flips.

Just as a dirty cop taints the whole police force, overreaching prosecutors affect the entire Justice Department.

"One of the angles you have to consider as a defense lawyer is putting the government on trial," Collins says. "There's no better defense, when there's evidence there to support it, than government misconduct."

A certain segment of society turns a jaundiced eye toward government to begin with, so news about prosecutors willing to compromise rules and ethics to get a conviction merely confirms their darkest suspicions.

"When you can show that the government forgot the rules because it was so intent on winning, that's a powerful defense before a jury," Collins says. "One of the easiest hats for me to wear is that of a righteously indignant lawyer who sees government misconduct."

The rub is that misconduct most often is only revealed after the fact. Ted Stevens may or may not have been guilty, but he didn't get a fair fight. As a result, he lost his re-election. For corporate defendants the consequences are just as dire, and you won't know if the deck was stacked until the damage is done.

"If you're negotiating a plea or you're a company negotiating a deferred prosecution agreement, for example, you're not litigating issues regarding the disclosure of exculpatory or impeachment evidence," says Joseph Martini, a partner at Wiggin and Dana and a former assistant U.S. attorney. "A lot of these things only come out at or after trial."

New Tone

It will take time for investigators to reveal exactly what went wrong in the Stevens prosecution, but this much is clear: Holder's swift action to dismiss the indictment and investigate the prosecutors sends a signal about the tone he wants to set at the DOJ.

"I am committed to ensuring that our prosecutors are provided sufficient training to understand fully their discovery obligations, and that they receive the support and resources necessary to do their jobs," Holder stated in an April release. "We will continue to review how cases are managed before, during and after charges are filed, and where there is room for improvement, we will make additional changes."

A focus on carefully constructed cases is characteristic of the new AG.

Wysong, who worked with Holder, says he will go after white collar crime with full vigor, but without stepping over the line.

"One of the things you're not going to see with Eric Holder is a mindset that encourages overzealousness, over-aggressiveness," she says. "You're going to see careful preparation before charges are brought."

Contributing Author

Steven Andersen

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