Prosecutorial Misconduct

05/04/2009 05:12 am ET | Updated May 25, 2011

In a stunning -- and almost unprecedented -- development, Attorney General Eric Holder announced this week that he would ask for the indictment and conviction of former Sen. Ted Stevens (R-Alaska) to be rescinded -- due to prosecutorial misconduct.

Declaring Holder to be "a pillar of integrity," Stevens' lawyer, Brendan "I'm-not-a-potted-plant" Sullivan Jr., savored another improbable, high-profile victory. In the mid 1980s, Sullivan had enjoyed a similar reversal of fortune when he defended the controversial Col. Oliver North, kingpin of the Iran-Contra Affair, whose guilty verdict was overturned on appeal.

No doubt, the imprisoned and disgraced lobbyist, Jack Abramoff, was delighted to hear the good news about his (former) friend Sen. Stevens. Yet Abramoff must also have wondered what might have been if only he had been represented by Brendan Sullivan Jr. Interestingly, when Abramoff's troubles had first begun in early 2004, and at the urging of his friend Col. North, Abramoff had hired Sullivan as his criminal defense attorney. But later that day, Sullivan informed a disappointed Abramoff that he could not represent him, due to a conflict of interest on the part of another attorney in Sullivan's firm.

After the dark days at the Department of Justice under President Bush, not surprisingly integrity seems to have returned under President Obama and Eric Holder. But how far will that integrity go? Will Holder be willing to tackle more subtle and elusive forms of prosecutorial misconduct? Will Holder insist that his prosecutors staunchly obey their oath "to seek justice," rather than simply and relentlessly striving for high conviction rates?

There are two areas of rampant prosecutorial misconduct that Holder should address. First, prosecutors routinely suborn perjury by coercing defendants--particularly white-collar defendants--into pleading guilty even when they may not be guilty. Second, prosecutors arbitrarily invoke a statute that is so vague, so poorly defined, and so ubiquitous that any man, woman, and child could become a convicted felon.

This may come as a surprise, but Abramoff was the victim of both forms of prosecutorial misconduct.

Abramoff may have pushed the envelope in his efforts to lobby vigorously for his clients, but he did not believe he was guilty of the serious criminal activities to which he pleaded guilty. So this begs the question. Why did he plead guilty if he did not believe he was guilty, and if in fact he may not have been guilty?

Herein lies the insidiousness and scope of prosecutorial misconduct. First, the prosecutors threatened that if Abramoff didn't play ball, they would not rest until they had found him guilty of some offense, for which he would be sent to a maximum-security prison with violent offenders for thirty years. Furthermore, Abramoff knew that the prosecutors had unlimited funds and resources, whereas he certainly did not. But they then made him an offer he couldn't refuse. They told Abramoff that if he pleaded guilty to whatever crimes they told him to plead guilty to, and if he cooperated in their ongoing investigation, then he would receive a much-reduced sentence, spent in a relatively cushy prison camp. This would also guarantee the prosecutors a conviction without facing the risk of a trial by jury. Perhaps Abramoff's fate would have been radically different if he had had Brendan Sullivan Jr. as his defense counsel. Instead, the terrified Abramoff quietly committed perjury by agreeing to plead guilty, something he couldn't dare admit now, because he could then be openly charged with perjury.

(In November 2007, The New York Times reported that nearly 30% of convicted and imprisoned rapists and murderers later exonerated by DNA evidence had pleaded guilty. Why did they plead guilty when they were innocent? Because prosecutors terrified them into pleading guilty. This is the kind of prosecutorial misconduct that must stop.)

Second, Abramoff was forced to plead guilty to "private honest-services fraud." This is a federal felony--essentially impossible to understand or define--in which one is charged with failing to provide one's "honest services," as a lobbyist, lawyer, carpenter, janitor, husband, wife, brother, friend, whatever. It is an unconstitutionally vague law, yet punishable by a whopping five years in prison and a $250,000 fine.

For example, in the notorious "kickback scheme," Abramoff and his grass-roots specialist, Michael Scanlon were accused of despicable wrongdoing. This was widely touted by The Washington Post and Abramoff's arch enemy, Sen. John McCain, as an illustration of how Abramoff had defrauded his tribal clients. Abramoff had urged them to hire Scanlon, who then secretly split his fee with Abramoff. As repugnant as the Post and McCain tried to make this seem, it was perfectly legal. Many lawyers, orthopedic surgeons, and mortgage brokers do this and simply consider it a referral fee. It's a common business practice. Amazingly, in their sentencing memorandum last September, prosecutors essentially admitted that Abramoff had committed no crime in the "kick-back scheme", other than the dubious "private honest-services fraud." Abramoff told me that there was no way he was guilty of this crime, because he truly believed that Scanlon was the best grass-roots specialist around, and Abramoff would have urged his tribal clients to hire Scanlon even if there hadn't been a referral fee. Hence, no private honest-services fraud was ever committed.

Clearly, it's time for Attorney General Holder to address these forms of prosecutorial misconduct. Prosecutors wield such enormous power and strike so many plea bargains that the American criminal justice system has become dangerously subverted. Rarely are charges presented to a jury, and the judge almost always rubber stamps the sentence the prosecutors recommend. This has effectively eliminated judges and juries from the criminal justice system. Absolute power has the power to corrupt absolutely, and must not be handed over to federal prosecutors.

Perhaps with the Obama administration, these subtle and elusive forms of prosecutorial misconduct will no longer be tolerated.

Gary S. Chafetz is the author of the recently published book, The Perfect Villain: John McCain and the Demonization of Lobbyist Jack Abramoff.