Saturday, December 10, 2011

Follow up on the story about the prosecutors in the Ted Stevens case

About two weeks ago I commented on the report by the special prosecutor looking into the misconduct by the prosecutors in the Ted Stevens case.  See here.  Just a few hours ago, I commented on an op-ed piece on the need for more accountability for prosecutorial misconduct (here).  Here is a story that combines both of those themes.

Today there is a new related story about the Ted Stevens case.  But before I tell you that story, I have to give you a little background.  Back in February 2009, U.S. District Judge Emmet Sullivan declared several prosecutors in contempt for violating a court order to turn over documents to Stevens’ defense team. However, the judge did not impose sanctions, saying he would address sanctions at a later date. The prosecutors disclosed the information hours after they were held in contempt, but the judge did not lift the contempt finding until October 2010, more than a year later, when he declined to impose sanctions against the prosecutors.

The prosecutors, challenged the contempt order arguing that it was a criminal contempt order, which they apparently argued marred their professional careers and could impede their ability to practice in federal trial courts around the country.  They wanted the contempt order reversed because, according to their argument, it was issued without procedural protections required by the rules of criminal procedure.  Such a finding would have eliminated the "conviction" but would not have necessarily negated the nature of the conduct that resulted in the imposition of contempt.   

The challenge to the contempt order has now been decided by the U.S. Court of Appeals for the D.C. Circuit which held that the contempt order was civil, not criminal.  In doing so, thus, the court found the lower court did not err in holding the prosecutors in contempt, but at the same time apparently cleared them of the possible interpretation that they engaged in misconduct. The decision is available here.

In the end, however, this whole thing is becoming a comedy of errors - and when I say "comedy" I mean exactly the opposite.  First of all, there is the conduct of at least some of the prosecutors to begin with.  Second, there's the judge's handling of the order.  He should have imposed sanctions immediately.  There was no reason to wait more than a year to decide whether to impose sanctions or to wait more than a year to not impose sanctions.

Third, there is the finding of the court now saying the order was really civil in nature.  What's the problem with that?  It has the effect of saying that the prosecutors' conduct was not worthy of criminal contempt, letting them off the hook.

In the end, by having the court reject their argument, the prosecutors got a better result than the one they apparently had asked for.  The fact is that, at least so far, nothing has marred the careers of any of the prosecutors involved in the case and there is really no reason to expect that anything will. For more on that topic go here.

For more on this story go to the Blog of the Legal Times and the Wall Street Journal Law Blog.

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