This week, U.S. Attorney General Eric Holder dismissed the case against former Senator Ted Stevens of Alaska. Citing prosecutorial misconduct as the primary reason, the Justice Department determined that the fairness of the trial had been too damaged by government misconduct to proceed further. Holder stated that, "[a]fter careful review, I have concluded that certain information should have been provided to the defense for use at trial," and that "it is in the interest of justice to dismiss the indictment and not proceed with a new trial." Holder's decision represents a critical first step in addressing a growing nationwide problem of prosecutors abusing their power in order to secure convictions.
The Stevens case had been marred by prosecutorial misconduct from the outset. Judge Emmett Sullivan repeatedly criticized prosecutors for failing to follow orders to provide evidence to the defense. In addition, prosecutorial misconduct at trial led Judge Sullivan to hold one of the prosecutors in contempt, and at one point instruct the jury to disregard some evidence presented by the prosecution. Delays in the case persisted in order to allow the court to deal with additional allegations of misconduct. In February, after replacing the original trial team, new prosecutors discovered even more evidence that should have been turned over to the defense. That prompted Holder to dismiss the charges against Stevens and order an internal review of the offending prosecutors.
The proper role of a prosecutor is not to simply seek convictions, but to see that justice is done. In pursuing a conviction against Stevens, prosecutors ignored their constitutional and ethical obligations to ensure a fair trial process. Holder rightly recognizes that there can be no justice when the fairness of a criminal proceeding is interrupted by government misconduct. The convictions against Stevens were obtained through the abuse of prosecutorial power and the wrongful suppression of evidence. Mr. Holder had no choice but to dismiss the indictment against Stevens.
Unfortunately, the kind of prosecutorial misconduct that occurred in Steven's case is pervasive in our criminal justice system, at both the state and federal level. Withholding evidence is the most common type of prosecutorial misconduct. Making matters worse, prosecutors who engage in even the most egregious misconduct are rarely investigated or held accountable for abusing their power. Holder should be commended for taking a step in the right direction to hold prosecutors accountable for their actions in calling for an internal investigation in this case. It remains to be seen what will come of that investigation and how the prosecutors in Stevens case will be held accountable for their egregious abuses of power.
The vast majority of states have failed to enact effective safeguards designed to prevent misuse of prosecutorial power. Prosecutors are rarely reported to disciplinary authorities for acts of misconduct, and state bar associations rarely initiate disciplinary proceedings against prosecutors--civil practitioners are disciplined on a much greater scale than prosecutors. States should follow the example Holder set in the Stevens case by quickly taking actions to effectively respond to prosecutorial misconduct when it occurs.
The Justice Project's upcoming publication, Improving Prosecutorial Accountability: A Policy Review, outlines the systemic problems that lead to prosecutorial misconduct and recommends reforms to improve prosecutorial accountability. For example, The Justice Project recommends jurisdictions adopt open-file discovery in criminal cases, which would largely eliminate the ability of prosecutors to withhold important evidence, as they did in the Stevens case. Further, The Justice Project also recommends jurisdictions establish prosecutorial review boards that would be responsible for investigating and sanctioning prosecutors who abuse their power.
Prosecutorial misconduct is costly and damaging to our criminal justice system, and Holder's actions this week recognize this. Indeed, prosecutorial misconduct plays a significant role in many wrongful convictions that have sent innocent people to prison while the true perpetrator remained free. Eric Holder should be applauded for sending the right message to all prosecutors that such abuses of power will not be tolerated.
John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.