The Power of the Prosecutor

The New Republic, has joined the chorus of media outlets reporting on issues connected to the Don Siegelman case. TNR reporter Bradford Plumer focuses on concerns about rogue prosecutors.

Plumer begins his piece by citing the recent Time magazine report about Alabama developer Lanny Young, who told Justice Department investigators that he had bribed two Republicans (Jeff Sessions and Bill Pryor), along with Siegelman, a Democrat. The prosecution chose to go after only Siegelman.

"Yes, prosecutors always get leeway to decide which cases to charge. But how do we know when that power's being abused? Did the U.S. Attorney's office in Alabama lay off Sessions because there wasn't enough evidence or because several of the investigating attorneys had once worked for him? And do similar abuses occur elsewhere in the legal system, away from the media spotlight."

Here at Legal Schnauzer, we will show that the answer to that last question is a resounding yes. The fraudulent lawsuit filed against me was in state court, and no government officials or wealthy businessmen were parties. A media spotlight was nowhere in sight. But Republican judges repeatedly committed a federal crime, honest services mail fraud (18 U.S. Code 1346), which ironically was the key charge in both the Siegelman case and the Paul Minor case in Mississippi. The FBI and U.S. Attorney's Office in Birmingham have long possessed ample evidence of the crime and chosen to ignore it.

Plumer does not address this in his article, but prosecutorial misconduct comes in at least two varieties--overly aggressive prosecution and suppression of prosecution (both for political reasons).

We will address suppression of prosecution, as practiced by U.S. Attorney for the Northern District of Alabama Alice Martin, here at Legal Schnauzer. But Plumer presents some fascinating information about prosecutions that are both overly aggressive--and sloppy.

He cites a 2003 Center for Public Integrity (CPI) study that shows, over a 30-plus year period, judges and court panels have dismissed charges, reversed convictions, or reduced sentences in at least 2,012 cases because of prosecutorial misconduct. That is probably a radical undercount, Plumer reports, because not all appellate decisions are published, and CPI could only study cases that actually went to trial. (About 95 percent of cases are settled by guilty pleas to reduced charges.)

Prosecutors frequently "overcharge," tacking on additional charges to give themselves more leverage in plea bargaining, or, if the case goes to trial, a better chance of securing conviction.

Writes Plumer: "A jury, after all, is more likely to think a defendant 'must be' guilty if there's a long list of charges, and often will compromise by settling on a few--something that could plausibly have happened with Siegelman, who was acquitted on 25 counts and convicted on seven."