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Some federal prosecutors are facing a reversal of fortune this morning. Just months ago, they won a conviction against then-Senator Ted Stevens on corruption charges. Now, the prosecutors need lawyers themselves. They're the targets of a criminal investigation centered on charges of prosecutorial misconduct. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Federal Judge Emmett Sullivan, the judge who presided over the Stevens trial last fall, has granted the Justice Department motion to satisfy the verdict and drop all charges against the former senator. But that was just the first step the judge took at a hearing that lasted nearly two hours yesterday. Although Judge Sullivan said he has enormous respect for the new Attorney General Eric Holder and for the decision Holder made to abandon the prosecution, the judge said he could not leave the investigation of prosecutorial misconduct in the hands of the Justice Department.
His quiet voice belying his furious words, the judge said he has an independent obligation to ensure misconduct is fully investigated and addressed in an appropriate public forum. Therefore, he said, he's appointed a special prosecutor from outside the Justice Department to investigate all six members of the original prosecution team, including two top officials from the Justice Department Public Corruption Office.
The man tapped for this special prosecutor role is Henry Schuelke, a former federal prosecutor, military judge and counsel to the Senate Ethics Committee. Judge Sullivan, who repeatedly chastised prosecutors during the Stevens trial, said he was shocked as more and more information came out after the trial, showing that prosecutors withheld information that was potentially favorable to the defense.
In 25 years on the bench, he said, I've never seen anything approach the mishandling and misconduct in this case. So now the judge has initiated a criminal contempt investigation of the prosecutors. The probe could lead to criminal charges being filed against some or all of them, or lesser sanctions -everything from a reprimand to disbarment, fines, firing or other sanctions.
George Washington University law professor and former prosecutor Stephen Saltzburg says there appears to be little question there was prosecutorial misconduct. More important now is the next question.
Professor STEPHEN SALTZBURG (Law, George Washington University; Former Prosecutor): To the extent they didn't - how bad was the conduct? And that, I think, will be meaningful to the judge as he considers what he's going to do.
TOTENBERG: Among the information prosecutors failed to turn over to the defense were prosecution notes that showed their star witness did not originally tell the same story he did on the witness stand. Columbia law professor and former federal prosecutor Daniel Richman notes, though, that it's extremely difficult to prove that a prosecutor acted with malice rather than misjudgment or incompetence.
Professor DANIEL RICHMAN (Law, Columbia University; Former Federal Prosecutor): One of the things we all know about conversations with witnesses is that different details come out at different times, and the failure to have said something isn't necessarily a sign of later fabrication.
TOTENBERG: Judge Sullivan said yesterday he's become increasingly concerned in recent years about what he called the disturbing tendency of prosecutors to withhold information from the defense. The Supreme Court has long held that prosecutors must turn over any information that is material and potentially favorable to the defense.
But what's material and what's favorable to the defense? That decision is left to the prosecutor to decide. NYU law professor Stephen Gillers, a legal ethics expert, notes that it's awfully tempting for prosecutors to err on the side of holding back information that may hurt their case. And because the defense in most cases has no way to find out what information prosecutors have, there's usually no penalty for prosecutors holding back.
Professor STEPHEN GILLERS (Law, New York University): It has to be drummed into these young prosecutors that that is simply not acceptable and not only will the temporary victory not advance their careers, but the failure to honor their constitutional duty as law-enforcement persons will result in a destruction of their careers.
TOTENBERG: And that is where the Stevens prosecution team is right now: on the brink of personal destruction.
Nina Totenberg, NPR News, Washington.
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