Prosecutorial Misconduct in the Siegelman Case

Attorney General Eric Holder focused this week on prosecutorial misconduct in the case of former U.S. Senator Ted Stevens (R-AK). And that raises this question: Does Holder have a clue what federal prosecutors did in the Don Siegelman case?

Holder announced that he intended to dismiss charges against Stevens because of prosecutorial misconduct. The new attorney general is being praised in many quarters, including The New York Times editorial page, for this first step toward righting some of the rampant abuses in the Bush Justice Department.

But if Holder wants to get a real eye-full of prosecutorial misconduct, he should review the prosecution of Siegelman, the former Democratic governor of Alabama.

Primarily at issue in the Stevens case was prosecutors' failure to turn over exculpatory evidence to the defense. In the Siegelman case, prosecutors presented evidence that they knew was false.

One could argue that the prosecutorial misconduct in the Siegelman case was far worse than in the Stevens' case.

Here's how Scott Horton, of Harper's magazine, put it in a piece last February following 60 Minutes' story about the Siegelman case:

But even if we accept that it’s possible for the Bush Department to create a new category of “Democrats Only” Crimes, we still have the basic fact that the evidence on which the Siegelman conviction was secured was false, and was known by the prosecutors to be false from the beginning. Indeed, the evidence of this is now so overpowering that the Justice Department refused to answer charges on camera, just as it has resisted Congressional demands to turn over documents and wrongfully failed to comply with FOIA requests. The key testimony at trial came from a man named Nick Bailey, who, unbeknownst to Siegelman, was a crook. He never contested that fact. And he’s now in prison, where CBS interviewed him—notwithstanding the Justice Department refusal to authorize an interview. The prosecutors nabbed him and then told him he could get a light sentence if he worked with them to nail Siegelman, their real target. This very process is a perversion of the justice system. . . . But it gets still worse. Bailey testifies that he saw a check change hands at a meeting at which Scrushy’s appointment to the oversight board was decided. This is the evidence that landed Siegelman in prison. And it was false. And the prosecutors knew that it was false.

Horton then turns to an interview 60 Minutes' Scott Pelley had with former U.S. Attorney Doug Jones, who assisted in the Siegelman defense:

JONES: They got a copy of the check. And the check was cut days after that meeting. There was no– there was no way possible for Siegelman to have walked out of that meeting with a check in his hand.

PELLEY: So, Siegelman could not have had that check–

JONES: No.

PELLEY: –in his hand that Bailey–

JONES: It was–

PELLEY: –testified to seeing?

JONES: Absolutely impossible and they knew that, absolutely impossible.

PELLEY: That would seem like a problem with the prosecution’s case…

JONES: It was a huge problem especially when you’ve got a guy whose credibility was going to be the linchpin of that case. It was a huge problem.

Let's allow this to sink in for a moment: Federal prosecutors knew the testimony of Nick Baily was false, but they presented it anyway. And that proved to be the key testimony that "convicted" Don Siegelman.

And Eric Holder is worried about the Ted Stevens' case, where the evidence strongly suggests that Stevens was guilty as charged--despite the prosecutorial misconduct? Holder is correct to review the Stevens case, but some commentators have suggested that he should have asked for a new trial rather than dismissing charges. In other words, Stevens probably got more than he deserved from the Obama DOJ.

And Siegelman? He's already spent nine months in prison and might be headed back there given the recent bogus ruling by an appellate court that upheld his conviction.

Does Eric Holder have a case of "I worry about the wart on my butt while my pants are on fire" Syndrome? Sure looks that way.

The Bush Justice Department knowingly used false testimony to "convict" Don Siegelman, but we've yet to hear a word from the Obama administration.

The blogger Publius IX lays all of this out in an excellent post at Left in Alabama. And he rightly expresses indignation about what seems to be going on with Obama & Co. when it comes to justice issues:

To say that I am disappointed in the Obama administration is a gross understatement. This far surpasses the Rick Warren coddling, or Republican economic-plan coddling, or the inexplicable unwillingness to take the right steps with the banking system out of fear that Rush Limbaugh and Michelle Bachman will call him a "socialist." (Oh, the horror!) Only my boundless cynicism at the ways of those within the Beltway gives me any hope that this move was taken, to provide prophylactic political cover for a drop of the Siegelman charges. Even so, failing to make both moves simultaneously is a slap in the face of the Alabama Democratic Party.