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When Will the Prosecutors be Prosecuted?

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The report by Henry Schuelke III on the fraudulent prosecution of the late Alaska Senator Ted Stevens admirably exposed the problem of lawless prosecutors, which to some extent or another afflicts almost every jurisdiction in the U.S. It also exposes the deeper part of the same problem in the reluctance of the Justice Department to take any serious action against its own personnel, no matter how egregious their conduct or how prominent their victims.

The Stevens facts are now too well-known to need a long retelling. The seven-term senator and former committee chairman was accused of corruptly accepting payments to his house without fully paying for them or reporting them. Stevens lost his bid for reelection very narrowly, undoubtedly because of the guilty finding less than two weeks before the election, in 2008. The defeat of Stevens altered the public life of the country, as it provided the 60th vote for the passage of the Obama Health Care measure, in particular. This is not how such matters should be determined in a serious democracy.

The case against Stevens subsequently collapsed when motions by defense counsel, the eminent barrister Brendan Sullivan, elicited the withholding of exculpatory evidence, and the attorney general, Eric Holder, requested that the conviction be set aside. The trial judge appointed Schuelke to determine if there had been prosecution misconduct.

Schuelke concluded that the prosecution was "permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens' defense and his testimony." He referred sarcastically to the "complete, simultaneous, and long-term memory failure by the entire prosecution team." This was the confirmation of what is now a routine phenomenon, reveling in their unaccountability and a heavy bias against any revision of convictions, once rendered, these prosecutors were shown to have thrown the book of practice and code of procedure into the incinerator and withheld evidence illegally, in fact almost certainly criminally, to obtain a conviction.

And now the second shoe has dropped as the legal cartel has closed ranks against those who would have the temerity to suggest prosecutors should be subject to the laws they so zealously and sanctimoniously enforce. Schuelke did not recommend criminal charges against the prosecutors. His reasoning was that the trial judge had not specifically ordered the prosecutors to obey the law, though when the transcript is consulted, it emerges that the judge declined to issue that instruction when the prosecutors assured the court that they did not need to be reminded of the requirement to obey the law.

This incites the inference that Schuelke is a fully paid-up member of the legal cartel: prosecutors may be severely criticized, possibly, though Schuelke did not suggest this, disbarred, and pursued civilly. But in terms of being prosecuted for the crime of falsely accusing others of crimes, they enjoy, in practice, an absolute immunity; they may commit almost any outrage in the line of what they construe as duty, but will face no criminal penalty.

Earlier this month, Edward Lee Elmore was released from prison in South Carolina after 11,000 days, most on death row, for the murder of an elderly woman, a crime which he did not commit and of which exculpatory evidence was withheld for decades. The releasing judge said: "There was persuasive evidence that the agents were outright dishonest...and further evidence of police ineptitude and deceit." Even at that, Elmore had to plead to something to be released, like the West Memphis Three, who were held for 17 years improperly and released last year. There is a possibility of a civil suit for violation of Elmore's civil rights, but that is conjecture, and there is no suggestion of criminal penalties being sought for his willful tormentors.

I had hoped that when the vice president's chief of staff, Scooter Libby, was convicted on the feeblest grounds, and Senator Stevens was simply railroaded, the executive and legislative branches might join ranks and reduce the rogue prosecutorial state-within-a-state to its rightful, prominent, but not completely unassailable position. Nothing has happened. Justice Byron White's ruling in 1977 in the case of Patterson v New York that, "Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person" has been misused, in effect, to justify the confirmation of countless doubtful convictions.

In the infamous Thompson case in 2011, Justice Clarence Thomas declined to impose any sanctions on prosecutors who had deliberately withheld exculpatory DNA evidence on a former long-term denizen of death row. He spoke instead of civil penalties and the disciplinary procedures of the bar, as if these could possibly be proportionate to the evil of trying to assure the execution of a man prosecutors knew to be innocent, premeditated murder made more heinous by the degradation and shame it brings down on the system of justice, upon which all civilized societies chiefly rely.

In 2000, on "Meet the Press," then-Governor George W. Bush expressed confidence that everyone sent to death row while he was governor of Texas had had a fair trial. That was known then to be untrue. In the Stevens case, Attorney General Holder has spoken of supplementary training for prosecutors; that is his bland response when what is needed, as the Wall Street Journal opined on March 17, is for prosecutors to be made to understand that their mistakes are excusable but their crimes are not.

Under the plea bargain system, everyone close to a target is threatened unless they have miraculous revenances of inculpatory utility, secondary targets roll over, pointing at higher-ups, and receive reduced sentences. And those who exercise their constitutionally guaranteed right to trial receive four or five times as heavy a sentence as those who consent to fall on their swords and spare the regime the tedium and expense of a trial. A moron, apprised of how this system functions, would know that, as Lord Acton famously said, "absolute power corrupts absolutely."

The examples of capricious and excessive prosecutions are much more numerous than the simply dishonest ones. A few recent cases have been much-publicized: the seafood wholesaler imprisoned for eight years for importing lobster tails in plastic rather than cardboard containers, and for being, in the case of a small part of his imports, in violation of a now expunged Honduran law against selling lobster tails beneath a certain size; and the elderly and unwell orchid enthusiast jailed for sloppy paperwork on imported plants.

The former county commissioner of Mobile, Alabama, Stephen Nodine, has languished in prison because his girlfriend committed suicide, and the fact that he was an occasional marijuana user was combined with his otherwise legal ownership of a handgun to generate an improper gun ownership charge, which would be published just before the state homicide charge regarding his late girl friend.

He felt compelled to plead to the gun charge, although it was nonsense, to avoid completely tainting the jury. The murder charge did not succeed and Nodine is proceeding to have the gun charge expunged and the federal prosecutors punished for improper collusion with a misconceived state murder prosecution. The whole affair reeks of Alabama's fetid politics. It would be a breakthrough if the prosecutors received more than a mild reproof.

Until prosecutors, too, are subject to a reasonable system of checks and balances like all other parts of government, the lady of American justice will be in danger of becoming a raddled strumpet, and the law an incurably spavined ass.