Two weeks ago, Attorney General Eric Holder asked the court to dismiss all charges against former Alaska senator Ted Stevens. Holder cited the performance of the prosecutors in the case, who had been repeatedly excoriated by Judge Emmet Sullivan for withholding exculpatory evidence from Stevens’ attorneys.
In the aftermath of Holder’s decision, a meme quickly developed linking the Stevens affair to the lacrosse case. From the left, Jim Coleman in Huffington Post:
The United States has one of the best criminal justice systems on earth; in practice, however, there are two systems. One system, the one that tried former Senator Ted Stevens, seeks justice. The other system, the one to which the public is largely indifferent, is the one in which the kind of misconduct that freed Mr. Stevens is both common and tolerated . . . Many in the greater Duke community think of the case of the Duke lacrosse players who were falsely accused of sexual assault as a failure of the system. The opposite is true. And that is what was unique about that case and about the Stevens case. Although some parts of the system failed, in the end, justice was done through the system itself . . . Many of the people who will praise Mr. Holder for dropping the charges against Mr. Stevens will not care that the same kind of misconduct routinely taints the trials of those who are not rich, or famous, or well-connected, or well-regarded. Nor will they likely step back and learn from what happened to Mr. Stevens. That is the other reality of the criminal justice system and the indifference that sustains it.
[I agree with Coleman on the latter point—though it’s worth noting that many who purport to be concerned with what Coleman calls “the other system,” ranging from figures like Irving Joyner or Al McSurely to members of the Group of 88, did “not care” about the “misconduct” that tainted the case against the falsely accused Duke students, and have shown no indication in the aftermath to “step back and learn from what happened.”]
From the right, John Hinderaker in Powerline:
The prosecutors who tried to railroad Republican Senator Ted Stevens will now be investigated by order of the presiding federal judge . . . Like disgraced Duke lacrosse prosecutor Mike Nifong, they could eventually go to jail . . . It ultimately proved that the Duke prosecution arose out of a Democratic official’s hope of partisan political gain. Were the Stevens prosecution, and the misconduct that it engendered, similarly motivated? That is the question that investigators need to get to the bottom of.
At first blush, the connection between the lacrosse case and the Stevens trial is obvious: they were the two highest-profile instances of acknowledged prosecutorial misconduct in recent memory. But on closer examination, the Nifong-Stevens storyline obscures as much as it illuminates. Equating Nifong with the Stevens prosecutors minimizes the degree of prosecutorial misconduct committed by the disgraced ex-DA. And linking the lacrosse players to Stevens dramatically overstates the dubious behavior of the former Duke students.
Before his trial, longtime Alaska senator Ted Stevens was probably best-known nationally for his aggressive attempts to secure federal funding for dubious Alaska projects (such as the “bridge to nowhere”) and his describing the internet as a series of “tubes” during his tenure as chair of the Senate Commerce Committee. (Jon Stewart skewered the latter item, below.)
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Obviously, I didn’t live-blog the Stevens trial, although I followed it out of an interest in Alaska politics. (I wrote a biography of one of Alaska’s first two senators, Ernest Gruening—who, ironically, had defeated Stevens in a 1962 Senate election.) Stevens’ indictment culminated a wide-ranging investigation of public corruption in Alaska that yielded convictions of several state legislators and prompted the resignation of Stevens’ son, Ben, from his position as president of the Alaska state Senate.
The criminal case against Stevens revolved around his connections with an Alaska businessman named Bill Allen. The government alleged that Allen and his company, Veco, had paid for a substantial remodeling of Stevens’ Alaska home; and that the senator hadn’t reported Allen’s assistance, or other gifts he had received (both from Allen and from other Alaska friends/businessmen), as he was required to do under Senate rules.
Testifying in his own defense, Stevens conceded that Veco employees had drawn up the plans for the renovations to the house, and had done the work that roughly doubled the size of his home. He denied, however, any untoward behavior, and maintained that he would have paid Allen if the businessman had ever presented him with a bill for his complete work. Other lines of Stevens’ testimony defied credulity: he claimed, for instance, that a $2700 Brookstone massage chair given to him in 2001 and still in his house at the time of the trial was not a gift but a loan, since “we have lots of things in our house that don’t belong to us.” (The senator asserted that his friend “bought the chair as a gift but I refused it as a gift.”) Discussing furniture that Veco had provided him, Stevens claimed that he hadn’t wanted the furniture, and that the furniture was substandard, only to have prosecutors remind him that he had considered giving the furniture to his son to furnish the son’s new home.
In short, regardless of whether his behavior was illegal, Stevens’ testimony exposed a politician who had lost his way on ethical issues—and thus had come up short in a fundamental component of his job. In that respect, there’s really no comparison to the lacrosse players—good students and athletes, with a solid record of treating fellow Duke students and staff with respect, whose offense was holding a tasteless spring break party, as thousands upon thousands of college students do every year.
Two of the jurors in the Stevens trial recognized the difference. One noted that while the former Alaska senator “may be innocent on corruption charges which were never brought up,” he was “still guilty of not disclosing some of [his] major gifts to the public”; another stated, more bluntly, “I mean, he had the chair.”
An equally significant gap exists between the prosecutorial misconduct that occurred in the Stevens and lacrosse cases. Judge Sullivan recently asserted, “In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.” The Stevens prosecutors sent a witness home to Alaska—apparently because his testimony didn’t correspond to their version of the case. The prosecutors didn’t turn over a note from Allen suggesting that Stevens probably would have paid the full amount of the renovation until Allen was already on the stand, testifying. And, after Stevens was convicted, prosecutors ignored a deadline imposed by the judge to turn over documents to defense attorneys—including notes of an earlier interview with Allen that contradicted part of his trial testimony.
Despite the severity of this record, there’s no comparison between the Stevens prosecutors’ behavior and that of Nifong. Had the Stevens prosecutors followed all the rules, the senator still would have been indicted. And (given that he wasn’t exactly dealing with a sympathetic jury pool), he might still have been convicted (as the quotes above from the two jurors suggest), although the odds at trial would have favored the defense.
In the lacrosse case, on the other hand, had Nifong followed all (any of?) the rules, an indictment never would have occurred: the only direct evidence against the three people indicted came from the players-only lineup, in which Nifong had ordered the police to violate their own procedures. Nifong’s myriad, procedurally improper, public statements helped nationalize the case and whip up local public opinion. Nifong did join the Stevens prosecutors in withholding exculpatory evidence, although in the lacrosse case, unlike in the Stevens affair, the prosecutor couldn’t possibly claim an honest error in not turning over the exculpatory DNA evidence to the defense.
Based on the evidence currently available, a significant gap also exists between the motives of Nifong and the Stevens prosecutors. As the ethics proceeding against him established, Nifong’s chief motive was personal gain: he hoped the exploit the case to win a primary election, which would, in turn, allow him to receive a higher pension. The motives of the Stevens prosecutors, on the other hand, do not appear to have been personal financial gain or advancing their political interests; a long article in yesterday’s Washington Post describes a prosecution beset by factionalism, poor preparation, and insufficient oversight.
The Nifong and Stevens cases, in short, remind us that different levels of prosecutorial misconduct exist. And while it’s a salutary effect of the lacrosse case that the name Mike Nifong is now associated with virtually every instance of acknowledged or even apparent prosecutorial misconduct, it’s worth remembering that that the disgraced ex-DA set quite a high standard on the question of prosecutors breaking the rules.