Despite their shocking misconduct, federal prosecutors in the Ted Stevens trial may not be charged with criminal contempt.

By Jim Morhard
Saturday, December 3, 2011

After federal district court Judge Emmet Sullivan dismissed the conviction of former Alaska Sen. Ted Stevens on charges of failing to properly report gifts, he ordered an investigation of the prosecutors. Quoting from the report (which is sealed until January), the judge recently explained that the investigators found ample evidence that the prosecution of Stevens (who was killed in a plane crash last year) was “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

The Supreme Court said in 1963 (Brady v. Maryland) that prosecutors have a constitutional duty to reveal evidence favorable to defendants. Yet the Sullivan report made no recommendation that the prosecutors be charged with criminal contempt of court for failing to reveal such evidence—because Judge Sullivan never gave the prosecutors a “clear and unambiguous” order that they “follow the law.”

Well, those of us who were in the court room during the trial watched Judge Sullivan continually direct the prosecution to reveal exculpatory evidence to the defense after they had been caught repeatedly not doing so. Most of it became public only after the trial was over (one widely reported episode involved moving a witness from D.C. to Alaska). The evidence was persuasive enough for the U.S. attorney general to recommend throwing out the convictions. It most likely would have exonerated Stevens during the trial.

The first duty of a prosecutor, as an officer of the court, is to uphold the rule of law. By withholding exculpatory evidence, these prosecutors failed to do so. A judge should not have to give a prosecutor an order to follow the law.

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