Legal News

Will Stevens Case Make Life Tougher for Prosecutors?

By Ashby Jones

The legacy of former Alaska senator Ted Stevens will likely be debated for years to come. Among the accomplishments that could outlive him: his sponsoring the bill that established the U.S. Olympic Committee, his helping pave the way for the building of the Trans-Alaska Pipeline, and the widely lampooned “Series of Tubes” speech.

Another data point that could garner a mention in a Stevens obit down the line: making life more difficult for prosecutors.

Legal Times has a story out this week taking a soup-to-nuts look at prosecutors’ mistakes in Senator Stevens’s corruption trial. Stevens was convicted last fall on public corruption charges, though U.S. Attorney General Eric Holder moved to dismiss the case last week in the wake of a series of prosecutorial mistakes, which included the failure to turn over potentially exculpatory evidence.

According to the Legal Times article, the episode could serve as a cautionary tale to prosecutors, who might now begin erring on the side of disclosure, “a welcome prospect for defense lawyers who say the government has been increasingly comfortable with playing hide the ball in discovery.”

"The more instances like this where disaster happens, maybe prosecutors will think more about turning over evidence instead of nitpicking around," Orrick, Herrington & Sutcliffe white-collar litigation partner Michael Madigan told Legal Times. "Not only has the case been thrown out, now the prosecutors are under investigation. That's certainly going to get the attention of prosecutors around the country."

Will any of the federal prosecutors who botched the Stevens prosecution pay for their mistakes? It’s possible. According to the Legal Times, if an investigation launched by the Office of Professional Responsibility finds intentional misconduct, punishment could range from referrals to state bars to recommendations that criminal charges be filed. But former prosecutors say criminal charges are unlikely.

Still, white-collar defense lawyers say that regardless of the outcome of the OPR investigation, Holder’s decision could benefit defense counsel in other cases. They say that the information that prosecutors failed to turn over to the defense consisted of prosecution notes-material that the government sometimes argues is exempt from disclosure.

"There isn't going to be a gray area. If there is a judgment call, you make it in favor of the defense," says Wendy Wysong, a former prosecutor and now a partner at Clifford Chance. The message Holder is sending, Wysong says, "is so much more important than the one case. This decision is going to have pretty serious ramifications."

Full post as published by Law Blog - WSJ.com on April 06, 2009 (boomark / email).