MICHEL MARTIN, host:
I'm Michel Martin, and this is TELL ME MORE from NPR News. Coming up, step to the plate, as Major League Baseball swings into action we touch base with a college baseball coach who's traveling farther than every to recruit players for his team. We'll find out why in just a few minutes. But first we want to talk about a major decision by the Justice Department. When U.S. Attorney General Eric Holder took office, he said he wanted to restore the department's reputation after years of complaints about political bias and ineptitude during the previous administration. And last week Holder proved how far he was willing to go to demonstrate the department's integrity.
He dismissed the indictment of former Alaska Senator Ted Stevens, who had been convicted on corruption charges last October. Stevens said in a statement that Holder's action lifted the ethical cloud over his reputation. We'd like to ask how that decision also reflects on the reputations of those involved. Here to talk more about this are NPR'S legal affairs' correspondent Nina Totenberg. She broke the story last week. And Paul Butler, he is a professor of law at George Washington University and a former federal prosecutor. They're here with me in the studio in Washington. Welcome to you both. Thank you for coming.
NINA TOTENBERG: My pleasure.
Professor PAUL BUTLER (Law, George Washington University): It's great to be here, Michel.
MICHEL: Nina, if you would start, remind our listeners exactly what led Holder to dismiss these charges. Why had Justice Department officials been reviewing the conviction to begin with? What is it that they say the prosecutors did wrong?
TOTENBERG. Well the judge in this case, who served on the local superior court with Eric Holder many years ago before both of them moved on to greater things, the judge in this case had cited I think three of the prosecutors for contempt of court. And so that was just a big cannon fired over the bow of the Justice Department. So of course the attorney general might be interested. In addition, he started out in life in the public integrity section, so he is an alum of that section.
Here we have a United States senator. We have one of the most prestigious law firms battering down the door saying, you have messed with us, you have not followed the rules. So he looked at it and there's a new trial came since the contempt citation and the new trial team found that in the prosecutor's own notes there was material that was inconsistent with some of the testimony by the prosecution's star witness. So that was the, I think that was the straw that broke Holder's back. And he said, you know, no not only are we not going to have a new trial, we're just not going to bring this case anymore, it is not worth it.
MICHEL: Has there been any explanation from the department of why the original trial team did not disclose these notes?
TOTENBERG: Throughout the trial there were a lot of screw-ups like this. Each time the chief prosecutor in the case, Brenda Morris, who's a very experienced and until this was a very respected prosecutor, would get up and say, judge we screwed up. This happened just repeatedly and the judge became more and more frustrated, more and more angry. And this was a case that went to trial very quickly, but if you don't believe there was malevolence here, if you don't believe that this was done on purpose to get a prosecution no matter what, then you have to believe it was just incompetence and under a very tight trial schedule.
MARTIN: But just to clarify, which had been requested by the defendant to accommodate the schedule. But just briefly before I bring Paul in, Nina, how remarkable is this that the attorney general overruled his career people in a case like this? You've been doing this for a long time.
TOTENBERG: This is a big bomb that he dropped. I could see him saying, we've had too many mistakes in this and we're going to support a motion for a new trial. But to withdraw the case altogether is a big bomb, sends a big message that he's not going to tolerate this kind of behavior. And he did not do it by accident. He did it with malice of forethought and it was after all the first really big thing he did.
MARTIN: Paul Butler, I'd like to bring you into the conversation. As we mentioned, you're a former federal prosecutor. How did you react to the news that this case was being dropped? And what is your take on why something like this may have happened? And I do want to disclose that you were kind enough to disclose that the lead prosecutor in this case, Brenda Morris, is someone you personally know, is someone you consider a personal friend.
Prof. BUTLER: We started out at the Department of Justice together. I've known her for years. I've the utmost respect for her as a fine and ethical lawyer. This was a shocking development. It came out of the blue, you know, there had been a three-week trial, unanimous verdict on all seven counts, the trial judge affirmed the verdict and set a date for sentencing. And then the attorney general, again out of the blue, says, oh never mind, let's call the whole thing off. Michel in any case they are going to be mistakes.
In a three-week trial, the government, the defense attorney, even the judge is going to make a few mistakes. Under the law the trial doesn't have to be perfect. There does have to be a level of fairness reached. And time after time Judge Sullivan ruled that Mr. Stevens was getting a fair trial. Now, was he upset, very upset at the government occasionally? Yes, he was. But what he said is that there are two different issues that it's possible to separate. One was whether Mr. Stevens got a fair trial, even after the verdict. He said yes, he did. He set a date for sentencing.
The other issue was whether the prosecutor should be sanctioned. And that's the issue that the judge was considering when Attorney General Holder just dismisses the case.
MARTIN: But, wasn't it remarkable to hold the prosecution in contempt? Does one do that because of mistakes or does one do that because you have the suspicion that these are not mistakes but a pattern of conduct, which is unacceptable and doesn't meet the standard of professional conduct?
Prof. BUTLER: Well what happens is that there's a hearing when there's a contempt charge, and then there is a trial-like proceeding where the prosecutors get to explain what they were thinking, why they did what they did. Ff they have to eat crow and say it was a mistake, which the prosecution team did on occasion, that's what they do. But at least in that occasion the facts get aired out and the government gets a chance to explain its actions. So, that may not happen now. There's going to be an internal investigation. I suspect that the prosecution team will be cleared but unfortunately that probably won't be public.
MARTIN: You're saying there is no public process to air why they did what they did?
Prof. BUTLER: Not unless there's a contempt hearing.
MARTIN: Why do you suspect that they'll be cleared?
Prof. BUTLER: Frankly, that's usually the case. You know, the one troubling thing about the message that this sends is I think a lot of people are asking, why all this special consideration for Senator Stevens? Is it because he was a powerful United States senator? Is it because he's a well-to-do white man? Is it because he had a very effective and very expensive defense attorney? So, you know, if Eric Holder really wanted to send a message about prosecutorial misconduct he would have selected a more typical case.
MARTIN: But don't cases involving public officials always get an extra degree of scrutiny. Police officers, don't those always get an extra level of scrutiny?
Mr. TOTENBERG: Politicians.
TOTENBERG: If you want to send a message you don't sent it in a crummy little case. You send it in a big gun case. There have been a lot of criticisms of things that went on in the U.S. attorney's office and in the public integrity section in the last few years. And they're going to go up to Holder, too. And if he wants to make a decision in some of those other cases that there was impropriety and that he wants to renege on a prosecution this was a great way to start it.
Prof. BUTLER: Yeah I hope…
MARTIN: Wait, hold on. I just need to jump in just for a second to say if you're just joining us this is TELL ME MORE from NPR News. I'm speaking with NPR's legal affairs correspondent Nina Totenberg and George Washington University Law Professor and former federal prosecutor Paul Butler about Attorney General Eric Holder's decision to drop the charges against former U.S. Senator Ted Stevens after allegations of misconduct by the prosecution team. Paul Butler.
Prof. BUTLER: Yeah, you know, I was going to say, I hope it's right but I can guarantee you that Attorney General Holder has a bunch of cases from young black and Latino men who were convicted of drug crimes. That's half of the people in federal prison. And they're making allegations that there was misconduct by the prosecutors at their trial. Again, it's very, very unusual for the attorney general to reverse a jury verdict.
Prof. BUTLER: And we'll have to wait and see whether he's going to do that in some of these more typical cases.
MARTIN: And speaking of race, the lead prosecutor in this case, Brenda Morris, is an African-American woman. And I am asking you to speculate, how painful do you think it was for Eric Holder, who is the first African-American attorney general, to have to publicly reverse her?
Prof. BUTLER: Well, I think that people understand that for an African-American woman to have reached the high level in the Department of Justice that Brenda Morris has reached, she's got to be at the top of her game. So you don't casually put someone on a case against a United States senator. So I don't think that Attorney General Holder is going to judge her on the basis of one case. I think that he's going to look at her career and be proud that she's a member of his department.
MARTIN: Talk about morale, Nina, if you would. You've alluded to this, that the morale at the Justice Department under the Bush administration fell very low. We've talked about this on this program, the former attorney general, Alberto Gonzales, talked about that on this program. Do you think that career officials at the Justice Department would experience this or are experiencing this as a correcting or as another blow to the department's reputation?
TOTENBERG: The people who found the latest piece of evidence that had not been turned over as required were career people. They were not in the public integrity section. And the public integrity section has taken a lot of hits lately. And frankly, little drug cases do not go through main justice, they go through U.S. attorney's offices all over the country. Public integrity is one of the mainstays of the criminal division in the Department of Justice. And I suspect that this thing is going to be quite a shakeup in that department.
MARTIN: Paul, what's your take on this, on the morale question?
Prof. BUTLER: You know the concerns about morale that one heard about the Department of Justice was that it had gotten too political.
MARTIN: Do you have that concern? I mean, are you suggesting that you believe that Eric Holder's decision in this case was political? And if so, for what purpose?
Prof. BUTLER: Not at all. Again, I have the utmost respect for Attorney General Holder. He's a man of the highest integrity, you know, anybody is going to make some bad decisions. I think this is a bad decision, but no question about his integrity, just his judgment in this one case.
MARTIN: Nina you have the final word. What do you think happens next here?
TOTENBERG: I don't actually know what happens next. All the charges against Senator Stevens are dropped. It will be viewed as some sort of exoneration of him. Having covered the trial, I've never seen such a cockamamie trial in my life. The prosecution was a disaster area, from the get go.
MARTIN: When you say cockamamie, do you mean poorly organized, poorly argued, ill-prepared?
TOTENBERG: All of that. And with constant new things coming up that, where they got tripped up by the opponent, their legal opponents on the defense side. And the defense, you know, when the prosecution was done, there was so little of a case that I thought the defense might not put on any case at all.
MARTIN: Nina Totenberg is NPR's legal affairs correspondent. She covered Senator Ted Steven's trial and broke the story about the charges being dismissed. Paul Butler is a law professor at George Washington University and as he said, a former federal prosecutor. They were both kind enough to join us in our studios here in Washington, D.C. Thank you both.
TOTENBERG: Thank you.
Prof. BUTLER: You're very welcome.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.