It the ultimate example of hubris, former Sen. Ted Stevens of Alaska is claiming vindication in the decision of the Justice Department to drop the case against him. In the meantime, the Alaska GOP is calling for Sen. Mark Begich to step down.
Stevens’ statement that he has been vindicated by this action is positively ludicrous. If the decision to drop the case was made to “protect justice,” it was the Justice Department itself not hte system of justice. By dropping the case, the Department may have been motivated primarily to end the judicial scrutiny of its lawyers and any continued sanctions. Stevens clearly did not receive a fair trial and deserves a new trial. He also deserved to be charged and re-tried on the charges.
For many of us, it was astonishing that after years of allegations of corruption and special dealing by the Stevens family, the Bush Administration indicted him on the narrowest and most technical grounds. However, even if you take away all of the evidence tainted by these allegations, Stevens would still have likely been convicted. The trial seemed to turn not on this evidence or even the testimony of people like Allen, but Stevens’ own testimony. The jury simply did not believe him or his wife on the stand. While it is sometimes necessary for “the criminal to go free because the constable blundered,” this is a case where the prosecutors blundered.
State GOP party chairman, Randy Ruedrich, said that the Begich won because “a few thousand Alaskans thought that Senator Stevens was guilty of seven felonies.” Really, a few thousand? Stevens was widely viewed as virtually walking the halls of the Senate with a credit card machine on his belt for the last couple of decades. Ruedrick wants Begich to step down and Gov. Sarah Palin concurs and has called for a special election.
The demand for a special election is perfectly bizarre, of course. However, it shows again that some Alaskans are still perfectly willing to embrace Stevens and his scandalized family.
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Buddha,
The judiciary seems to be our last line of defense in upholding the rule of law. This is good news.
It would appear the judge isn’t quite done with Stevens.
http://www.mcclatchydc.com/homepage/story/65538.html
Jill, Great minds must think alike as the Moyers/Black is playing in the background right now as I taped it earlier. I see why The Shock Doctrine was called the “master narrative of our time.”
Mike, I just heard I.F. Stone say “to make some impact is such a pleasure” as I watched the Moyers interview of Black. His son then described “decades of loneliness” that came before his success, so I guess the saying about “taking the bitter with the better” must be true. Thanks.
Bob, I came into this case late in the game as I was appointed after he lost his 2255 motion, but your instincts are all correct. It’s too bad he didn’t take the deal, but I fear that he . You’re right, it’s too bad he didn’t take the offer as he’d likely be getting out pretty soon. Thanks for the tips.
David:
“Prosecutorial discretion didn’t factor in much except that the court focused on the fact that the prosecutor did not exercise it to increase the charges after making the vindictive comments. I argued, unsuccessfully, that this wasn’t the only way it could have been carried out.”
From what skeletal info I’ve been able to glean, it appears that you and your client were stuck with a poor scenario from the beginning. If the prosecutor was insistent on a plea to conspiracy, and then lost his cool when your client wouldn’t accept, it sounds more like the prosecutor had the goods to make the case but would rather be out golfing instead. In such a case, it’s not the prosecutor’s vindictiveness that brought about the lengthy sentence but the client’s refusal to accept his situation and realize his limited options.
Recall also how easy it is for a prosecutor to gaff a defendant into a charge of conspiracy. Take John W. Dean for example. Attorney Dean, though not a criminal lawyer, did EVERYTHING he could to avoid being wrapped up in the Watergate scandal yet he was still charged with criminal conspiracy. He may never have served a day in jail, i.e. placed under house arrest while he cooperated, but the charge stuck nonetheless.
Accordingly, if your client, or the client that the trial lawyer handed to you, refused to play ball while failing to adhere to the Clint Eastwood maxim: “A man’s got to know his limitations” then it’s not your fault that he shot himself in the foot.
“You’re right too that Holder was validly using pros discretion in dismissing against Stevens. My point isn’t that I could have prevailed on an EP argument in court but that we should be suspicious when a member of the ultimate “protected class-” a Senator heavily funded by the oil industry and who was accused of lying about receiving its gifts- has his conviction dismissed.”
I agree, but that’s more of an abuse of prosecutorial discretion rather than an EP argument. And if that be the case, you look first to the document to which the prosecutor owes his very existence. I’m guessing your case was a state level case, and therefore I’d look to the state constitution and pick out each and every clause that the prosecutor contradicted while stating “how is it that the prosecutor is empowered to contradict the very document to which it owes its existence?”
Also recall just how anemic the EP clause really is. Remember Bush v. Gore? Did you know that one of the foremost experts on EP law, Erwin Chereminsky, wrote a law review article stating that EP was never the issue; that the entire case hinged on Justiciability? It was a separation of powers/Justiciability case; never capable of reaching the first prong of any issue relating to the EP clause. But I digress.
Finally, while I agree in sentiment on your labeling of a functionally ‘ultimate protected class,’ the truth is that label is legally irrelevant. And the way I always remember that is a story my contracts professor told us about the lawyer who was turned down for an apartment simply because he was a lawyer and the landlord didn’t want a litigator residing on his premises. Could the lawyer sue? Nope; he’s not a protected class.
Seems the only way to take down the Goliath ‘ultimate protected class’ is by showing a conspiracy to use said influence to corrupt the judicial system and perhaps commit fraud on the court as well.
Whew. And that’s all I got to say about that.
SIYOM,
Bob
P.S. When you get real frustrated, i.e. like having your appellate victory OVER TURNED by your opposition re-appealing the issue in the lower court (eh hem… cough, gag) you may want to have your preliminary statement read:
“MANKIND HAS NOT EVOLVED AN INCH FROM THE SLIME THAT SPAWNED HIM!”
David,
We probably have similar dubious outlooks on the ability of
corruption to trump the law. Your quoting Animal Farm, I.F.Stone and Lord Acton certainly reflect much of my thoughts on our present political/legal problems. As an old codger who has been at this for many years I try to subsume my cynicism and replace it with hopeful idealism. This is mainly because I think a positive outlook may somewhat increase my lifespan and because of hope for progeny who I want to see have good lives. I must admit though that in the deep recesses of my consciousness cynicism is lurking, based on life/career experiences. I’m sure you and the other lawyers on this site, including JT himself, have to fight a similar battle based on your work experiences.
David,
Did you get a chance to watch Bill Moyer’s Journal last night? The William Black interview on the economic fraud perpetrated by our govt. against our citizens was very indicative of your point that “some animals are more equal than others”. Memebers of our own govt. and their allies in the financial industry have brought down this economy yet nothing happens to them. No one is fired, in fact, they are promoted, given their bonuses, and we even have another GS BFF being added to the administration. This cannot be looked at as accidental. Black points to real fraud and the cover up of that fraud, neither of which is being investigated by the DOJ. There is a pattern of patronage to the connected, of the connected and by the connected at the highest levels of our govt. I would say what happened with Ted Stevens fits right in.
Bob- Prosecutorial discretion didn’t factor in much except that the court focused on the fact that the prosecutor did not exercise it to increase the charges after making the vindictive comments. I argued, unsuccessfully, that this wasn’t the only way it could have been carried out.
You’re right too that Holder was validly using pros discretion in dismissing against Stevens. My point isn’t that I could have prevailed on an EP argument in court but that we should be suspicious when a member of the ultimate “protected class-” a Senator heavily funded by the oil industry and who was accused of lying about receiving its gifts- has his conviction dismissed. Perhaps I was wrong to presume that this was a “head fake” by Holder as it may indeed be the first step toward reforming the atrocities of the Bush Justice Dept. I’m just suspicious about Holder’s supposed noble motives given his position to continue to invoke state secrets in the Al Haramain case, the only one that could uncover the extent of warrantless wiretapping. The test of Holder’s commitment to a new way will be whether he dismisses under similar facts when the press isn’t watching and I’ll believe that when I see it.
Mike- I hope you’re not really as cynical as I wouldn’t wish that on anyone! Just kidding. You may be right that Holder is “mak[ing] a point to DOJ that he will not tolerate sidestepping the law to win prosecutions.” My fear is that “by doing it with a highly visible case” he may be inadvertently sending a message that some animals are more equal that others on the animal farm. The test will be whethe his message trickles down to prevent these tactics in non-visible case. Time will tell I guess. I try not to be cynical, not always succeeding, but to remain skeptical, aware of I.F. Stone’s warning that “all governments lie” and Lord Acton’s that “absolute power tends to corrupt absolutely.”
Holder’s decision to release information regarding torture- which is supposedly unleashing “holy hell”- is cause for optimism, or at least against cynicism, which I can definitely use.
Cheers!
David,
My point re: your logic comes down to looking for the simplest explanation possible. We know the Bush DOJ is corrupt.
Holder does also, but he is faced with many holdovers that are
hard to fire. Withholding of evidence for discovery, as you well know, does taint a trial and the defenses ability to make their case. Steven case was egregious, even if the man is detestable. This allowed Holder to make a point to DOJ that he will not tolerate sidestepping the law to win prosecutions and doing it with a highly visible case. To impute other motives to him begs the question and the facts as we know them.
I’m as cynical about prosecutions as you must be as an attorney. The example you offered annoys me primarily because the prosecutor makes the defendants natural self protection and his refusal to plead to conspiracy, into a personal affront. That person is unfit to be a prosecutor and understands the concept of the law less than I do and I’m not a lawyer. That the appeal was denied was a pity because it means the prosecutor will get no blowback for his hubris macho. I’ve no doubt we’re both aware that this is a common occurrence in our legal system and one of its’ flaws.
David:
“The man will now likely die in prison because the trial court held that he not only needed to show vindictiveness such as this, but also needed to demonstrate that these threats were carried out to his detriment. The appellate court affirmed without even a comment.”
Regarding your appeal, how heavily did prosecutorial discretion factor into the calculus of the decision?
“So as we celebrate Holder supposedly nobly standing up for Due Process when a Senator is involved, I laugh, knowing that this is a better demonstration of Holder ignoring the Equal Protection Clause and attempting to reframe it as upholding the Constitution when he’s actually ignoring it. Do you think he would have even agreed to a new trial if the defendant were a poor bricklayer from Lincoln, like my client?”
I honestly don’t see how the EP clause applies here; i.e. with the absence of a protected class and the presence of prosecutorial discretion.
Mike-
Can you elaborate on where you think I used bad logic or drew the wrong conclusions? If you look at the Stevens case academically, asking whether the govt should be able to convict when the prosecutor blunders this badly, the answer is clearly no. But defense attorneys, confronting issues similar to this one, usually can’t get past “harmless error.” For example, I lost an appeal last month in which the prosecutor, upset that the defendant wouldn’t plead to conspiracy, sent the defense attorney an email before the trial stating “I really don[’]t give a shit re trying to settle this case and… now want to convict him of everything I can so he gets the most time he can get as he has been f–ing me around big time…and that… is about the only thing that could ever make this personal.”
The man will now likely die in prison because the trial court held that he not only needed to show vindictiveness such as this, but also needed to demonstrate that these threats were carried out to his detriment. The appellate court affirmed without even a comment.
So as we celebrate Holder supposedly nobly standing up for Due Process when a Senator is involved, I laugh, knowing that this is a better demonstration of Holder ignoring the Equal Protection Clause and attempting to reframe it as upholding the Constitution when he’s actually ignoring it. Do you think he would have even agreed to a new trial if the defendant were a poor bricklayer from Lincoln, like my client?
Not a chance. His supposed shock at these tactics (which didn’t appear in his statement) is a little like the Captain in Casablanca who was “shocked that gambling was going on in here.”
When it comes to applying the rule of law, we don’t look to telecoms, torturers or Senators. We instead “round up the usual suspects.”