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November 1, 2008

Prosecutorial misconduct or just standard operating procedures in Senator Stevens' prosecution?

As previously noted in this post, right after Senator Ted Stevens was convicted earlier this week on seven felony counts of lying on his Senate disclosure forms, his lawyer Brendan Sullivan sent this letter of complaint to Attorney General Michael Mukasey detailing purported incidents of prosecutorial misconduct in Stevens' prosecution.  The letter is a fascinating read, and some of the allegations are very troubling (such as the assertion that federal prosecutors knowingly presented false testimony).  But one allegation really stood out because it calls "misconduct" some behavior I have long considered just standard prosecutorial operating procedures.

Specifically, the letter's last major allegation of a "serious constitutional violation" concerns the "prosecution's use of coercive promises and extravagant financial incentives to Mr. Allen in order to induce [his] 'substantial assistance'."  The letter goes on to detail that, in order to get the help of key witness Bill Allen, federal prosecutors promised not to prosecute other members of Allen's family and also made it easier for him to sell his business for millions of dollars. 

Even assuming these allegations are true, they barely seem different in degree than the kinds of cooperation inducements that federal (and state) prosecutors make all the time.  Indeed, often prosecutors will promise immunity not only to others, but to the cooperator himself.  (This fact is one of many reasons why the Border Agents' case has generate controversy: the federal prosecutor offered complete immunity to a Mexican drug smuggler in order to get him to testify against the Border Agents.)

Though the letter from Stevens' lawyer repeatedly describes the promises made to Bill Allen to secure his cooperation as "coercive," the behavior by prosecutors here strike me as well within the pale and essentially just a variation of standard operating procedure for securing cooperation in these kinds of cases.  Of course, I fully understand why Senator Stevens' lawyers are troubled by the incentives offered to Allen to encourage him to assist in the prosecution.  But if the inducements offered in this case constitute "prosecutorial misconduct," a whole lot of defendants now sitting in federal (and state) prisons who were convicted based on a cooperator testimony should start contacting habeas lawyers about the opportunity to raise a potent new collateral challenge to their convictions.

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November 1, 2008 at 10:47 AM | Permalink


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This is standard operating procedure. Brandan Sullivan - an experienced defense attorney - is fully aware of it. It is heartening to know that Ted Stevens will contend with the same procedures. Tough on crime has an appealing ring until you're the criminal.

Posted by: | Nov 1, 2008 3:30:30 PM

Prosecutors should be allowed to promise whatever they want. It is a problem only when they don't disclose to the defense what it is that they have promised to cooperating witnesses. It is standard and hopefully the defense attorney at trial questioned the witnesses about the promises made in exchange for their cooperation.

What is less well known is the fact that federal agents and prosecutors, under the radar, routinely (yes, routinely) threaten witnesses with prosecution and jail time and force witnesses to "cooperate," and too often the cooperation is simply saying what the government wants to hear regardless of truth. By the time the trial rolls around, the witness is coached to make no mention of the threats that the federal agents and prosecutors made against him. Most will not accept this as true, but this too is standard operating procedure in federal prosecutions.

Posted by: John | Nov 1, 2008 5:23:13 PM

I see no reason that it can not be both.

Posted by: Soronel Haetir | Nov 1, 2008 6:57:58 PM

John is correct. It is also standard operating procedure to delay sentencing for a witness until after he or she has testified against others to the satisfaction of the prosecuting. Another lever is the forfeiture of assets of the cooperating witness. These are very powerful tools.

This playing field is seldom level.

Posted by: | Nov 1, 2008 9:57:31 PM

The answer is that it's "both" - no doubt. Give Soronel a gold star!

And John, a cautionary corollary to your comments would be that most cases, like 98%, end in plea bargains, which means that information coercively gathered from informants in the fashion described in your second paragraph often isn't disclosed or vetted at all, particularly in state courts where the rules regarding "cooperation" aren't so formalized.

Posted by: Gritsforbreakfast | Nov 2, 2008 8:20:10 AM

Excellent article.


Posted by: Terry | Nov 5, 2008 12:28:58 AM

"Tough on crime has an appealing ring until you're the criminal."

How true. Hell has a way of finding its way to earth at times.

Posted by: | Nov 10, 2008 3:55:37 PM

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