|Henry F. Schuelke III|
A special counsel late last week released a scathing, 525-page report about Department of Justice misconduct in the prosecution of Ted Stevens, the late U.S. senator from Alaska. News of the release received scant notice in the mainstream Alabama press, so you would never know the story has profound implications for one of the most high-profile criminal prosecutions in our state's history.
As often is the case in "The Heart of Dixie," we must rely on "an outsider" to provide context for a story that has major importance within our borders. Thankfully, Harper's legal-affairs contributor Scott Horton is up to the task of explaining what misconduct in the Stevens case means for the prosecution of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy.
We might sum up Horton's take with these two key points:
(1) If special counsel Henry F. Schuelke III thinks DOJ personnel behaved abhorrently in the Stevens case, he truly would be blown away by their behavior in the Siegelman case;
(2) If prosecutorial misconduct caused the DOJ to come to an agreement that vacated convictions in the Stevens case, justice demands similar action in the Siegelman case.
How bad was the misconduct in the Stevens case? Prosecutors introduced evidence they had clear reason to believe was perjured. They concealed from the defense the fact that their star witness had perjured himself in an earlier case. FBI agents failed to follow standard procedures when taking written notes of witness interviews. Prosecutors planted false stories in the mainstream press.
Those are just a few "highlights" from the Stevens matter, but Horton says they pale in comparison to what we know about the Siegelman case:
DOJ spokesmen are laboring to minimize the damage from this report. They will stress that this was a single incident. But in fact, hardly a week passes without reports of scandalous misconduct by prosecutors involving the suppression of exculpatory evidence. And for every case that surfaces, probably ten do not, because a cloud of prosecutorial privilege envelops their conduct, shielding it from view. The Stevens case isn’t even the worst example of prosecutorial misconduct in corruption cases involving public officials, though it is typical in terms of the complaints that it raised.
The case involving former Alabama governor Don Siegelman, for instance, features both more serious and better documented instances of wrongdoing by prosecutors. The conviction is still pending in that case, with the Justice Department steadfastly arguing, in the face of mounting evidence, that it did nothing wrong.
Horton then recounts much of what we know went terribly wrong in the Siegelman matter, focusing heavily on statements from Tamarah Grimes, a DOJ whistleblower once based at the Middle District of Alabama in Montgomery:
A member of the prosecution team has openly admitted that prosecutors cajoled, coached, and pressured two key prosecution witnesses to give false or misleading evidence—in one case conducting more than seventy intimidating interviews. She also acknowledged the existence of a binder filled with notes recording some of these sessions, which would have furnished powerful exculpatory evidence, and which might well have led a judge to bar the testimony entirely, but was withheld from the defense. Prosecutors initially misled the court about the existence of the binder, then conceded that they had it but wouldn’t turn it over. The prosecutor who arranged and oversaw the entire matter was in fact the wife of the man managing the campaign of Siegelman’s opponent—a hair-raising violation of prosecutorial ethics, which could have justified her removal from office and even her prosecution. When her role was exposed, she made a pretense of recusing herself from the case, though one of her own staffers acknowledged that she continued to run it. Senior figures in the Justice Department, notably David Margolis, dismissed concerns about this reprehensible conduct—apparently feeling that any acknowledgement of wrongdoing would tarnish the department as a whole. They then stonewalled the House Judiciary Committee’s efforts to investigate the matter and blocked production of materials sought under the Freedom of Information Act.
Notice, in bold, that Horton suggests former U.S. attorney Leura Canary might have committed criminal acts in the Siegelman prosecution. You won't be reading that in The Birmingham News or any of the other al.com newspapers. You also won't read about the dubious actions of U.S. District Judge Mark Fuller, who presided over the Siegelman case. Writes Horton:
The major difference between the Siegelman and Stevens cases is simple: the Stevens case was presided over by Emmet Sullivan, one of the nation’s most respected federal judges. When he sensed that something was wrong with the prosecution’s handling of the case, he pressed them on it, and when it was clear that prosecutors had lied to or misled him, he appointed a special prosecutor to investigate their misconduct. In the Siegelman case, by contrast, the judge attempted to press the same sort of questions that Emmet Sullivan did, but prosecutors responded by maneuvering, through bizarre sleight of hand, to bring their case to a different district before a judge who they fully knew had a grudge against Siegelman—a highly unethical maneuver that paid off handsomely.
These facts help explain why, as the Wall Street Journal reports, more than 100 former state attorneys general from both political parties have joined in a brief asking the Supreme Court to overturn the Siegelman conviction—a historically unprecedented campaign. George Will recently backed the initiative.
Even if the Siegelman convictions are vacated, the matter should not end there. The public should demand that light be shined in some very dark holes at the U.S. Department of Justice. Writes Horton:
A Congressional inquiry into the systematic misconduct inside the Criminal Division is necessary, as is legislation, such as the bill recently proposed by Senator Lisa Murkowski (R., Alaska), that would sanction prosecutors who withhold exculpatory evidence. The Department must be challenged on its persistent whitewashing of ethics violations, and on its obstinate refusal to punish prosecutors who engage in acts that might well be prosecuted if they were done by defense counsel. The Justice Department says constantly that it “takes its disclosure duties seriously,” but its conduct plainly establishes the opposite. The Department’s credibility and integrity are now plainly on the line.