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Thursday, December 17, 2009

Misconduct Topples Another Bush-Era Prosecution

Did the U.S. Justice Department do anything right during the disastrous reign of George W. Bush? More and more, that's looking like a legitimate question.

In recent months, numerous Bush-era cases have crumbled under the weight of prosecutorial misconduct. The latest is a case out of California involving executives for the chip maker Broadcom.

U.S. District Judge Cormac Carney dismissed the case for what he called "shameful" prosecutorial misconduct and lack of evidence. One can only imagine what Carney would think if he reviewed the conduct of prosecutors in the Don Siegelman (Alabama) and Paul Minor (Mississippi) cases.

Could the Broadcom case have implications in Alabama? The case was initiated by the Securities and Exchange Commission, and the SEC has been busy in Alabama--particularly in the cases against former HealthSouth CEO Richard Scrushy and former Birmingham Mayor Larry Langford.

Given the behavior of SEC lawyers in California, it's reasonable to ask, "Were the Scrushy and Langford cases handled in a lawful manner?"

Here's another question to ponder: Scrushy is involved in both state and federal lawsuits. Was information obtained by the SEC, possibly through illegal means, used in those civil matters?

How bad was the prosecutorial misconduct in the Broadcom case? Consider this passage from the San Jose Mercury News:

Carney said evidence in the securities case shows prosecutors tried to influence the testimony of three key witnesses, improperly contacted witnesses' attorneys and leaked information about grand jury proceedings to the media.

"I find that the government has intimidated and improperly influenced the three witnesses critical to Mr. Ruehle's defense and the cumulative effect of that misconduct has distorted the truth-finding process," Carney said. "To submit this case to the jury would make a mockery ... of the constitutional right to due process and a fair trial."

Let's repeat that last sentence: To submit this case to the jury would make a mockery . . . of the constitutional right to due process and a fair trial.

That's a federal judge speaking, one who actually seems to care about the U.S. Constitution.

So why have the Siegelman and Minor cases, which featured prosecutorial misconduct that probably was worse than that in Broadcom, not been reviewed by a Justice Department that now is led by Obama appointee Eric Holder?

There is no logical answer to that question, and Holder's inaction is a disgrace.

What have we learned from Broadcom and similar cases, particularly those in Alaska? If the judge in a case points a finger at prosecutorial misconduct, then justice can be served. But if the judge is part of the misconduct, as was the case in Siegelman and Minor, no one will do anything about it.

Is Eric Holder going to sit on his hands forever, while the reputation of the U.S. Department of Justice sinks into oblivion?

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