NPR’s Nina Totenberg reports that DOJ sources say Ted Stevens’ indictment will be dismissed this morning by AG Eric Holder. This would, effectively, end pending criminal sentencing from Stevens’ trial.
Reportedly, it was allegations of prosecutory misconduct and the withholding of potentially exculpatory information by prosecutors on the case which thoroughly disgusted Holder:
Holder’s decision is said to be based on Stevens age — the senator is 84 — and because Stevens is no longer in the Senate. Perhaps most importantly, Justice Department officials say Holder wants to send a message to prosecutors throughout the department that actions he regards as misconduct will not be tolerated.
Holder began his career in the department’s public integrity section; and, according to sources, he was horrified by the failure of prosecutors to turn over all relevant materials to the defense….
The conduct in question is not only horrifying to competent attorneys of either side of criminal law, but also violates standards of conduct and constitutionality as laid out in the DOJ’s USAtty Manual. I’d specifically point to USAM Sec. 9.5.001(E):
…This policy encourages prosecutors to err on the side of disclosure in close questions of materiality and identifies standards that favor greater disclosure in advance of trial through the production of exculpatory information that is inconsistent with any element of any charged crime and impeachment information that casts a substantial doubt upon either the accuracy of any evidence the government intends to rely on to prove an element of any charged crime or that might have a significant bearing on the admissibility of prosecution evidence. Under this policy, the government’s disclosure will exceed its constitutional obligations….
That does not mean everything is material and required to be disclosed, but it does say that if it’s even a close call, you err on the side of handing it over.
A constitutional right to a fair trial is the prosecutor’s duty to ensure to the extent possible. And most prosecutors I know take that responsibility very seriously.
This is far from the first time the issue of exculpatory material has been raised with federal prosecutors the last few years. That it would occur, however, in a case that was this high profile? Beyond stupid.
Using this case as an example of what will NOT be tolerated is as good a place to start as any for Holder.
It is beyond disgusting that a skeezeball like Ted Stevens can walk away from all the pocket-lining he did whilst in office because the prosecutors on the case were too craven to follow basic legal principles. But there you are. The vaunted DOJ has fallen to such a level, and it will take an enormous amount of work to lift it back up to where it ought to be.
Here’s to much more internal review and reform to come at DOJ.