Monday, April 13, 2009

Nifong & Stevens

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.)

The Daily Show With Jon StewartM - Th 11p / 10c
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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.


Anonymous said...

The Post story failed to examine the political angle of the prosecution, especially in regard to the Department of Justice.

Anonymous said...

The bottom line, however is that in both cases prosecutorial misconduct occurred. One could argue ( I suppose) in the Stevens case that the lawyers were of a higher caliber than Mike Nifong and thus their actions (whatever the cause) are even more egregious. However, a justice system (like any other system) is only as strong as its weakest link. Thus, the actions of Mike Nifong revealed a flaw (the election of DA's, the cozy relationship that too often exists between prosecutors and the judges before whom they appear, the ability of the DA to assume police powers, as well as {in North Carolina} a grand jury that could indict a ham sandwich and not have to account for its decision) even more fundamental. If Eric Holder is serious about restoring the justice system in this country, he could begin by ordering a federal investigation into the Duke case. In so doing, he might also demonstrate that he is "not a coward" when it comes to discussing the issue of race in this country since the Duke case was made into a race case by the prosecutor, Duke University (through the pronouncements of its president, BOT, and the Gang of 88), the media, and of course the accusor - Crystal Mangum.

Anonymous said...

Is Coleman a Communist?

No justice, no peace said...

Outstanding effort Professor Johnson. There is clear separation between the two.

You have however left out a third difference. You properly point out that had rules been followed nothing would have advanced in Durham. In spite of the facts Duke administrators, leaders and faculty continued to abet the prosecution by their action and inaction. There does not appear to be similar institutional support in Alaska from those in positions of trust.

bill anderson said...

I agree in part with K.C.'s analysis here, but there also are some areas in which we will disagree. Let me give the agreements first:

1. The federal prosecution of Stevens most likely would have gone on had the prosecution done what it was legally required to do; it might have made their job harder, but nonetheless they might well have secured a conviction;

2. The misconduct in the lacrosse case was infinitely worse in that there was no question about the innocence of the individuals being charged in the lacrosse case. The charges went on because Nifong wanted to win an election and because the black community in Durham was demanding a conviction no matter what the evidence. Chan Hall pretty much spoke for most blacks and their leaders in Durham.

The Stevens case was different in that no one was disputing the acts that occurred. The question was whether or not they constituted criminal behavior.

My differences with K.C. are pretty wide, however, and I will list them.

1. First, and most important, by putting the trial in Washington, where Stevens would face a jury dominated by Democrats, a conviction was a foregone conclusion. This was a political trial aimed at eliminating a Republican senator. Most if not all of the career DOJ lawyers involved in the case were Democrats and this was politics by another means. (The notion of the "pure" DOJ lawyer not tainted by politics is like saying Irving Joyner was motivated by a desire for real justice.)

2. Comparing state and federal courts is like comparing apples and coconuts. In state courts, generally speaking, the prosecution can point to a real crime that occurred, and the question is (a) whether or not the person or persons tried committed the crime and (b) what were the circumstances under which they committed it (i.e., self-defense or murder).

In federal court, however, people generally know that facts of the case, and the determination is whether or not the actions constituted criminal behavior. Thus, federal cases are much more likely to be overtly political, as jurors are asked to interpret the law which they probably don't understand. This happens a lot in financial "fraud" cases, in which the transactions make the eyes glaze, and so jurors generally convict as a matter of course because the defendant often is rich, and prosecutions can appeal to their resentment.

3. Federal criminal laws often are written in a way to permit prosecutors to take legal actions and "bundle" them into what Candice E. Jackson and I have called "derivative crimes." For example, no one "racketeers" anyone yet people are sent to jail for "racketeering." Candice and I had a piece five years ago in The Independent Review which goes over this issue in detail. The link is here:

In the Stevens case, the question revolved around whether or not Stevens had received "gifts" that he should not have received. The dollar amounts that constitute limits tend to be contrived numbers, and the idea that a $25 gift is OK but $250 is a crime really comes down to arbitrary standards.

Furthermore, there is a larger problem here, and that is the power of the executive branch over the power of Congress. Most "progressives" favor a very strong executive branch, but the Constitution was written to balance these branches, not to give the executive branch near-absolute power.

For example, this country has fought in at least five wars since the end of WWII, yet none of those wars has been declared. They were ordered by the executive branch. During the New Deal, Congress "re-delegated" many of its constitutional powers to the executive branch, even in the face of the "Non-Delegation Clause" in the Constitution.

Furthermore, by taking an absolute liberal reading of the Commerce Clause in the Constitution, we are seeing federal jurisdiction over things that are better left to the states. I hardly am the only one speaking out over this. Candice and I had a piece in Reason Magazine in 2004 that dealt with this situation:

So, in one way, K.C. is correct, but in another way, the Stevens case was as troubling as the lacrosse case in the way that it permitted the DOJ to be able to fashion a case against someone for what I believe are political reasons.

Don't kid yourselves. Federal prosecutors can find a way to charge anyone they target. Does anyone think that if they went after Barney Frank or Chris Dodd, that prosecutors could not gin up criminal charges?

After all, prosecutors do NOT have to establish a quid pro quo in public corruption cases. Instead, they are able to criminalize the giving of gifts to elected politicians at any level of government. This is a very powerful POLITICAL tool, and let no one think that DOJ lawyers are free from political bias.

For example, the prosecutions of former Gov. Don Siegelman and a benefactor, Richard Scrushy in Alabama are very questionable, and the political ties between Alice Martin, the U.S. attorney for part of Alabama, and prominent Republicans are there for people to see. Now, I never cared for Siegelman or Scrushy, but that does not matter when it comes to a court of law.

So, while K.C. is right in that the information withheld by DOJ prosecutors might not have mattered in the prosecution of Ted Stevens, nonetheless the entire process is very, very troubling. Americans have no idea of the legal revolution that has taken place in federal criminal court in the last two generations, as a very nasty genie has been let out of the bottle, and it cannot be put back.

Debrah said...

"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."


And this is what infuriates.

From the very beginning many expressed indifference because "so many other innocent people have been falsely accused" and have tried to relate the Lacrosse Hoax to other cases.

And I'm sure, like Coleman, they will attempt to draw dramatic comparisons into the future.

Instead, however, they take banality to a whole new level.

And why?

Why is it so difficult---especially for black people---to admit that the behavior of Mike Nifong leaves most prosecutorial cases of misconduct in the dust?

Nifong was supported enthusiastically by almost an entire community even as they saw things unfolding with no evidence of guilt.

Yet Nifong and others continued---in real time---as the Hoax had been laid bare.

There's never been a set of circumstances, of which I'm aware, where so many people actually assisted a prosecutor, openly, and still refuse to let go of their original assumptions.

Even a few key players---who shall remain nameless---backtracked and chose later to minimize the unique egregiousness of the Lacrose Hoax.

Afraid, no doubt, that if this reality is illuminated too often it might also illuminate their gross double standards and their rather tepid--(even for those who have professed fairness)---responses.

This will continue.

Lastly, the lacrosse players did not perpetrate a crime on any level as did Stevens and the man who spent some time in jail who was released because of the efforts of Barber and McSurely.

Barber and McSurely's "victim" actually assisted in covering up a his hands were not clean.

Reade, Collin, and David were totally innocent, but many cannot acknowledge that fact.

joan foster said...

And we are to rely on the Washington Post to determine that the Stevens prosecutors had no "political" motives? Yes, and many relied on the NY Times to substantiate that Nifong really had a whole lot of evidence right there in his case file...and on the N&O for factual information about the brilliant youing student, "new to dancing."

Why has Charlie Rangel not been prosecuted? Has he not "lost his way on ethical issues and come up short in the fundamental component of his job?" Is it they say at NCCU...because of things that have happened in the past? Maybe for the same reason that the Lacrosse season was canceled upon an unsubstantiated accusation of rape at a party sponsored by their team...and no penalty ensued to the Black frat for THEIR party wherein an actual rape took place and drugs and a gun were found?

The Stevens prosecution reeks of a political and moral "selectivity" in the same way the Duke case did. Are the indicted Stevens "sins" much different from that of Rangel or far off from the tax cheats brought into high positions by the new administration? These are people finessing the rules...the laws. Some are accused...and others excused. Justice is no longer blind...she's wearing contacts with Prescription # 88.

In much the same way, the stripper party held by the basketball team, and the Black Frat Rape were ho-hum non-issues...while the Lacrosse stripper party was an racial/gender affront of highest magnitude.

It's no test of our integrity to rally to the defense of those whom we admire, resemble or share our world view ...when they are railroaded. The test of our integrity is to rally when those we despise are railroaded by those we "admire."

No excuses please for the Stevens prosecutors.

Anonymous said...

Off topic, but be sure to read this Q&A with KC at Duke's "The Chronicle Online."

An excerpt:

"With the academy, I think the striking thing has been that there has been no self-reflection, no hard questions asked as to why so many faculty members rushed to judgment.... We've seen in the response from Duke and from the academy an almost complete unwillingness to engage in any critical self-reflection about the University's response and that's unfortunate, but based on what we found from the case, not all that surprising."

Duke Prof

Debrah said...

Why are the people in Durham allowing this to happen?

Is it not insane just to allow the house to become dilapidated?

Are people over there so void of integrity and guts that no one will prevent the needless taint on the property......just because some people told fantastic lies?

The condition of that house is a metaphor for the mindset in Durham.

lonetown said...

A better comparison might be to the Libby case, given as Clarice Feldman has pointed out in the American Thinker, there is a common nexus.

Anonymous said...

"We've seen in the response from Duke and from the academy an almost complete unwillingness to engage in any critical self-reflection about the University's response and that's unfortunate, but based on what we found from the case, not all that surprising."

Duke Prof (@ 10.16)--The absence of any self-reflection *would* surprise me at almost any *serious* university. But, simply put, Duke is no longer a serious university. Hence--no surprise here as well.

Anonymous said...

Sorry, KC, I cannot agree with you this time: Prosecutors should follow the law in every case, and their misconduct cannot be justified, retroactively, on the basis that "well, the defendant was guilty anyway".

That logic is just an open invitation to further prosecutorial abuse, where "the end justifies the means" because "I, as prosecutor, know in my heart that this guy is bad and should be nailed by any means available to me, right or wrong".

Stevens is, I agree completely, a dirtbag, whereas the lacrosse players were not. But in both cases, as in all cases, the defendants were entitled to fair play from the government.

So I was pleased to see Nifong's name invoked as the pre-eminent, enduring example of prosecutorial crooks, more than I was irritated by any of the factual distinctions that you correctly cite.

Debrah said...

Thanks for that, Duke Prof.

The Gang of 88 trolls are out in full force over there.

kcjohnson9 said...

A couple of responses:

To the 11.23: I'm not in any way intending to retroactively justify the prosecutors' performance in the Stevens case.

There are, however, differing levels of prosecutorial misconduct--one reason why Nifong was disbarred and the Stevens prosecutors, even if ethics charges against them wind up being upheld, almost certainly would not be.

To Bill's points:

1. On the location of the trial: this issue was contested--Stevens' lawyers wanted the trial held in Alaska, which would have caused its own problems in terms of finding a fair jury, etc. In any event, the prosecutors did have a legal leg to stand on--the disclosure forms were filed in DC--and the judge (who hardly was in the prosecution's corner) agreed with them. But clearly, the prosecution wanted the trial in DC because they thought the chances of conviction would be hired (though the defense wanted the trial in AK for the reverse reason).

2. On the issue of fed'l prosecutions of legislative figures--as a historian of Congress, I agree completely on the possible danger.

This is an area, I think, where the Congress has failed, in a dangerous fashion. Before the hyper-partisanship of the last two decades, Congress had an internal ethics system, which, if it didn't work terribly efficiently, at least basically worked. That system has now broken down entirely, to the extent that the two parties have an ethics "truce" in which neither side will file any ethics complaints.

And so we get the fiasco of the seating of someone like Roland Burris without a Rules Comm. inquiry, or the embarrassment of the William Jefferson affair, or the refusal to investigate John Murtha--just as, under GOP control, we had the embarrassments of no inquiry into Tom DeLay or the leadership's looking the other way about Mark Foley.

The congressional unwillingness to investigate itself has created a dangerous vacuum into which the DOJ is increasingly asserting itself.

One point, though, int he DOJ's defense, on the issue of why Stevens and why not Dodd or Rangel. It's worth remembering that the Stevens indictment came after a long and successful investigation into what turned out to be the incredibly corrupt world of AK politics. The key witnesses against Stevens were people caught up in that inquiry who then turned state's evidence. But the inquiry clearly didn't begin with a premise that it would produce an indictment of Stevens. The Dodd and Rangel affairs are different in that respect: any inquiry into them would need to be directed against them from the start.

joan foster said...

You say:

"It's worth remembering that the Stevens indictment came after a long and successful investigation into what turned out to be the incredibly corrupt world of AK politics. The key witnesses against Stevens were people caught up in that inquiry who then turned state's evidence. But the inquiry clearly didn't begin with a premise that it would produce an indictment of Stevens. The Dodd and Rangel affairs are different in that respect: any inquiry into them would need to be directed against them from the start."

Do you doubt a long and equally intensive investigation into NY (or Conn.) politics would be any less successful? Do you doubt NY politics are not "incredibly corrupt?"

If the political will determines the effort be made, do you believe Rangel and Dodd would emerge as shining examples of political honesty and integrity?

Any target be obfuscated by a "general" investigation that then, happily, leads just where one wishes.

bill anderson said...

Keep in mind that mine was an academic disagreement with K.C., not a personal or moral one. As one who had made part of his career writing about federal criminal law and federal prosecutors, I tend to be extremely skeptical when federal prosecutors come knocking.

Several years ago, the feds went after Rep. Harold Ford (the father of the guy who ran for Senate a couple of years ago), but believed that a Memphis jury would not convict him. Thus, they convinced the trial judge to move the trial to Brownsville, Tennessee. However, the jury in Brownsville also gave a "not guilty" verdict, so the prosecution's game was pretty well exposed.

If we are going to err on juries, I would prefer to err on the side of trying someone where the jury is less likely to convict someone, especially out of political or racial animus. For example, none of the Blog Hooligans believed that RCD should be tried in Durham. Remember how infuriating it was when Irving Joyner constantly was declaring that they should be tried there precisely because the jury would have more blacks, and the blacks would likely vote to convict, no matter what the evidence?

My next point is more controversial. The federal government has managed to criminalize behavior that is not necessarily criminal. It is one thing if a legislator engages in an out-and-out quid pro quo, although I realize such things are difficult to prove in a court of law.

The issue of gifts and their appropriateness really should be handled by Congress itself, not by U.S. attorneys. These things just should not be criminal affairs.

Now, I absolutely agree with K.C. on the failure of Congress. During the 1930s, the Democrats knew what they were doing and many of them spoke out, but in the end, they kowtowed to FDR and the New Dealers. Since then, we have seen people of both parties toe the line that the executive branch should be all-powerful (except when someone from the opposite party occupies the White House -- then they "rediscover" the doctrines of federalism).

Remember Terry Eastland and "Energy in the Executive"? He wanted a president after Alexander Hamilton's vision. (Eastland took material of mine and used it in an article in The American Spectator, but did not cite me. That I do not forget.) Likewise, we have a public ready to give Obama "emergency powers" just as they gave such to Bush after 9/11.

I also agree with K.C. that Nifong's conduct was worse than what we saw in the Stevens case, and yet in some ways I would say it was just as reprehensible, but in another way. The very complex nature of federal crime prosecutions is in itself a situation that leads to convictions even if it can be agreed that by historical standards, the underlying conduct was not even criminal.

On a last point, I agree that Congress leaves itself vulnerable by not policing itself very well, but that is a political issue, and should be handled politically, not by U.S. attorneys. As for Tom DeLay, don't forget that prosecutor Ronnie Earle shopped three grand juries before finding one that would indict DeLay. That alone gives me pause and reminds me just how much power prosecutors enjoy these days -- and how much poorer we are for it.

A Duke Dad said...

What about William Jefferson (D-La). The good CongressCritter was caught with $90,000 of bribe money in his freezer.

Why has he not been charged ?

Has our nation truly lost its moral compass ?

Gary Packwood said...

I can understand indifference towards the slippery slope of house remodeling and a Brookstone Massage Chair but I will never understand how Nifong or Duke could be indifferent towards several lynch mobs right under their own nose.

Americans will soon forget about a Brookstone Massage Chair in Alaska but we will not forget and be indifferent toward the lynch mobs that were given free reign in Durham N.C. while Brodhead, Nifong and the Police Chief were lounging about in their massage Chairs.

There is absolutely nothing about a lynch mob that is open to indifference or 'slippery slope' discussions.

bill anderson said...

I would add that it often is difficult for Congress to investigate itself because some of the more (let us say) wayward members of Congress are from extremely uncompetitive districts. Furthermore, any investigation of someone like Charles Rangel would put the congressional investigators in the sights of the Congressional Black Caucus.

Certainly, John Conyers and his wife have done quite well in the "political representation" business. (Monica Conyers is on the Detroit City Council that continues to run that city into the ground.) While Conyers might be corrupt, nonetheless his constituents continue to return him to office. Likewise for Rangel or others who use their jobs to gain lots and lots of personal wealth they did not have before being elected.

Unfortunately, the reaction has been to pass legislation like McCain-Feingold, which literally criminalizes political speech, which is yet another "godsend" for the career prosecutors at DOJ. So, even when Congress acts to stop the "appearance" of corruption, it does greater violence to the law itself.

There is no easy way to extricate ourselves from such a mess. Giving the executive branch more power is a prescription for abuse, and we know that members of Congress have a tendency not to be the choices of citizens.

To be honest, I am more willing to put up with corrupt members of Congress than I am DOJ prosecutors who can run amok. The former is an occupational hazard of democracy, while the latter is a prescription for tyranny. And there is no worse tyranny than a "good government tyranny."

I always can vote against a corrupt politician, but I cannot vote against a career government prosecutor who is protected by immunity and civil service laws. Thus, of the two unsavory creatures, the corrupt politician or the ambitious prosecutor, give me the corrupt politician every time.

Anonymous said...

Stevens was convicted under a law that criminalizes inaccurate reporting of gifts, regardless of any quid pro quo. I wonder what percentage of Senators and Representatives have taken gifts. My impression is that that many have done so. In that case, many in Congress will have committed a "crime" if they or their staff were ever sloppy in filling out a form.


Insufficiently Sensitive said...

In the Stevens case, the question revolved around whether or not Stevens had received "gifts" that he should not have received. The dollar amounts that constitute limits tend to be contrived numbers, and the idea that a $25 gift is OK but $250 is a crime really comes down to arbitrary standards

And it was the prosecution which insisted that the value of the improvements was worth $250,000. How they determined that value doesn't appear in news accounts, leading to the speculation that in order to secure a conviction, the prosecutors simply selected a Big Number for better dramatic impact.

Incidentally, in the suppressed documents of Mr. Allen, his opinion was that the improvements were more on the order of $80,000. Had that been coughed up in the discovery process, the prosecution's case would have been far less likely to succeed.

If the State of Alaska is horribly corrupt, it's not too much of a stretch that certain prosecutors in the Justice Department are not any better. We need to see what turns up from the investigation that Judge Sullivan ordered. Brenda Morriss, one of the Stevens prosecutors, has previously been active in cases where the Justice Department was fined for misfeasance. That's a red flag, and bears watching.

joan foster said...

KC..sounds like you are employing the familiar "They're No Angels" (Steven's No Angel) side-step defense of these corrupt prosecutors.

I'm also reminded of some of the excuses made for Nifong..including those that claimed he was just overworked..poor little sweetie.

Missing stripper money or the-massage-chair-in-the-living room do not negate prosecutorial abuse in anyway.

jamil hussein said...

I can't believe that Wapo (aka Washington Compost) is used to argument that Stevens case was not politically motivated. DOJ prosecutor/supervisor Linda Brown (who had presided over Libby and Jack A trials) is a well-known partisan hack (active in minority/diversity crap).

I would actually add Libby trial here. We know that Fitgerald lied in press conference (that alone should be enough to see Fitzgerald sent to jail) and he knew who the leaker was from day 1 (but he did not fit the new target - a white conservative) was needed.

Also, implying that Stevens was guilty anyway is strange. If anything, Nifong case (and US constitution) shows that people are innocent until proven guilty. I'm well aware that approximately 100% of people politics have questionable history (e.g. outrageous earmarks etc) and Stevens is hardly different. Anyway, DOJ is dominated by hard-core leftists, and this poses real and imminent danger to US justice system.

Debrah said...

TO Joan--

Don't be over-exercised by KC's analysis.

It's, no doubt, his honest take on the matter.

And there are no angels, are there?

I realize that many of the commenters on the various blogs have trouble on occasion not taking something at face value.

And that is because so many people like to play both sides of an issue.

Unfortunately, on internet message boards where people can take on multiple monikers and play different roles, it's often difficult to take anyone or any point of view seriously.

For example, right here, inside Wonderland, there are commenters who are often complimentary and go-with-the-flow to get their opinions published.

Those people who follow this blog are also privy to all the news and the history of Wonderland.

On other blogs and fora, such people take on other roles and post things they would never do here.

So, I get your point, in a roundabout way, that people side-step and hide to satisfy their own desires and to vent their hidden envy and resentment.

It's a disappointing fact of life.

Why, there are even commenters here who pretend to be members of the Gang of 88 to go after me personally on fora like the Chronicle---a place where I rarely go---because they know they cannot do it inside Wonderland.

Isn't that odd?

mike in houston said...

Please see Tom Maguire's take down of the WaPos article.

Please read the comments

becket03 said...

In typical exasperating fashion, The Washington Post article expects its readers to accept the supposed non-partisanship of the Public Integrity section at the Justice Dept. That's just a bunch of pure, unadulterated crap. The head of the section, William Welch, got the job through Teddy Kennedy, fer cryin' out loud.

The case was brought just prior to an election, in contravention of longstanding Justice Dept practice. It targeted a Republican whose victory would have been assured had the case not been brought, and whose seat has proven to be highly valuable since the election in view of filibuster situation in the Senate.

A sophisticated --- and highly corrupt --- political calculus was applied to this case from the get-go by political pros in Washington.

Stevens no doubt is one of the most unlikeable and irritating guys around, but what was done to him was WORSE than the construction of a "bridge to nowhere," because it was a power play designed to undermine the sanctity of democracy itself.


Debrah said...

Take a look at this article of comparisons from 2007 at Slate.

Anonymous said...

"What about William Jefferson (D-La). The good CongressCritter was caught with $90,000 of bribe money in his freezer.

Why has he not been charged ?

Has our nation truly lost its moral compass ?

4/13/09 1:46 PM"

Nah it's Louisiana and down here it's all just "bidness". Besides the flood waters won't get in the freezer.

Anonymous said...

I understand that the Steven's case doesn't come close to the same level of prosecutorial misconduct as the Duke LAX case. But I think it's a good thing that judges are now invoking the LAX case when they see any type of abuse by the prosecution.

The more the LAX case is mentioned in case law and in court records, the less the group of 88 and the Duke BOT can deny that those abuses existed.

Just think, in 10 years all law schools will be routinely studying the Duke case and the role of the Duke administration and the group of 88. They will be forever discredited, in case law and in legal case books.

bill anderson said...

After reading that other blog and seeing the makeup of the jury, as well as a picture of Brenda Morris (who was smirking like Mike Nifong), I have a better sense of what happened with the Stevens case.

This was a railroad, pure and simple. No, I don't care for Ted Stevens, but I care less for federal prosecutors. As for the Post's excuses for prosecutors, that is a whitewash of their behavior.

These prosecutors knew exactly what they were doing, and they figured that given the racial and political makeup of the jury, it was a done deal. As I have said before, I will prefer corrupt politicians to corrupt prosecutors and judges (like Nifong and Ronald Stephens). The former can be irritating, but the latter can have you put to death.

I prefer people who are corrupt but can't kill me to corrupt people who can legally kill me. It would be my hope that Brenda Morris can spend some time in Alderson, but history tells us that federal prosecutors, no matter how much they lie and how much they break the law, are invulnerable. They are liars and criminals who have very nice insurance policies.

Anonymous said...


Link to justice project report on Prosecutorial Misconduct
They use Nifong as an example

Justice project

Anonymous said...

Doesn't it make you feel ashamed

To live in a land where justice is a game?

Bob Dylan, 'Hurricane'

Debrah said...

Revisiting the New York Times coverage of Nifong......

Notice how drastic the physical changes have been.

How smug and happy he looks in that first photo.

I have always thought that the photo in this one provided a rich metaphor for his election and how he won and who put him there and why......and really shows the escalation of his illusions that he would be the next Morris Dees. LOL!!!

Now we move on to a more experienced and world-weary Mikey here and here.

At last, Mikey does have a well-recognized name.

Don't get Nifonged!

Anonymous said...

After reading's KC's analysis of the legal issues at hand in the Lacrosse and Stevens cases, my first thought is, "KC, don't quit your day job."

In both comparisons -- of the defendants and the prosecutors -- Stevens comes off better than the Lacrosse players and his prosecutors worse than Nifong. First, what Stevens was charged with was a malum prohibitum ("bad because it is prohibited"), not a malum in se ("bad in itself"). He was charged with failing to properly report gifts -- not bribery or anything like it. On the other hand, in the Lacrosse case the boys had actually committed crimes, albeit very minor ones, that were mala in se: providing alcohol to minors and a noise ordinance violation. (Remember that it was for fear of being cited for the noise violation that the partyers fled the premises after Kim said she was calling the police.)

Second, and contra KC, the actions of the prosecutors in the Stevens case were -- legally speaking, at least -- far more egregious than those committed by Nifong. You know the real reason why Nifong was disbarred and went to jail? Because he told one lie to the judge. Specifically, he stated in open court in, I believe, about August, 2006, that he was unaware of possibly exculpatory evidence, when in fact he knew that he had requested the DNA lab not to provide him with such evidence. In the Stevens case, prosecutors were not only aware, but (unlike Nifong) actually in possession of exculpatory evidence and disobeyed direct court orders to turn over same to the defense. (Please note that while I am prepared to grant that on a moral scale Nifong's actions were worse than those of the Stevens prosecutors, here I am addressing the legal view.)

I know that normal people view things differently from lawyers, so let me explain. As a lawyer, I do not feel bound to tell opposing counsel everything I know -- in fact, quite the opposite: I want opposing counsel to know as little as possible about what I know. However -- and to lawyers, this is huge -- I do feel bound never to lie to the court (as Nifong did) and even more to never disobey a court order (as the Stevens prosecutors did). Lying to, or even hiding evidence from, my opponents may be a "dirty trick", but I don't owe any duty of loyalty or fair dealing to my opponents. But betraying the trust of the court -- by lying to it or defying its orders -- is what makes a lawyer unfit to continue to be an "officer of the court". (Ask Bill Clinton, who was disbarred after lying under oath.)

As further evidence of the relative gravities of the transgressions, we note that Nifong's opponents had to push for him to be sanctioned. In the Stevens case, the prosecutors' actions were so outrageous (and repetitive!) that the court seems to have acted sua sponte ("on its own") in finding them in contempt.

Finally, I note that some commenters above have addressed a Washington Post article. I will read that. For those interested in my take of an NPR report on the same subject, I made it under the nom de plume "Romeo" here (three comments in total on two pages).


bill anderson said...

I also would like to add that the prosecution in the Stevens case was sloppy precisely because federal prosecutors are held to very low standards, both in conduct and how they present their cases. If prosecutors really believed that they were going to be scrutinized, they would have done a better job.

Again, this is a monster we have created by empowering federal prosecutors. The Crime Control Act of 1984 was an abomination, and it turned federal prosecutors into dictators.

The federal criminal system is something that people of past generations never would have permitted to exist, at least not in its present form. William Blackstone would have declared it a return to the very worst ages of despotism. I already have said that if I am called to federal jury duty, I will speak out during the questioning period and say things that no judge would ever permit being said in court, and I will take my chances with contempt.

However, what is happening in this country is an abomination, and I can guarantee you that the jurists that existed when this country was founded would have called this barbarianism and a breakdown of civilization.

Anonymous said...

I think that both prosecutions were egregious because Stevens got "Nifonged."


I would need more information to hate on the Stevens prosecutors for sending a witness home. I've done it quite often. It starts when I send out a subpoena, which contains my name and telephone number. The witness calls me up, and to get out of missing work or to "not get involved," begins to describe in excruciating detail how his testimony will actually hurt my client's case. Sometimes they convince me, and I send them home. Happens all the time.


To Joan:

I'm not following your argument. I don't see how Professor Johnson is saying the Stevens misconduct was a good thing, just that it wasn't as bad as Nifong's.


If the question of whether Stevens would have been convicted of a crime -- even if the other charges were thrown out -- depends on a jury believing that a barcalounger was on loan for 7 years, then he sounds awfully guilty to me. But, I haven't read up on the case much, so I don't know.


The prosecutorial misconduct in the William Jefferson case consists of a decision NOT to file charges. Still not as bad as Nifong. MOO! Gregory

Anonymous said...

Gregory said at 7:40 AM,

"If the question of whether Stevens would have been convicted of a crime -- even if the other charges were thrown out -- depends on a jury believing that a barcalounger was on loan for 7 years, then he sounds awfully guilty to me."I guess it depends on one's life experiences and how one interprets "reasonable doubt". For instance, many years ago one of my brothers-in-law built a beautiful gun cabinet (w/o a nail or screw) and gave it to my step-father with the proviso that it be returned upon my step-father's death. My step-father had the gun cabinet for more than 20 years. Was that a "gift" or a "loan"? Could I say "beyond a reasonable doubt it's a gift"? (Which raises perhaps an interesting question about whether the granting of a life estate in personal property can constitute a "gift" under the laws applicable in this case, but I digress.)

Btw, I notice over at the Chronicle website that one of Crystal's and Nifong's supporters is using my comment above in part to criticize KC. I want to say, as I have in the past, that despite my disagreement in this instance, overall I have found KC's periodic legal analyses to be remarkably sound.


Anonymous said...


You didn't just seriously compare a barcalounger to a gun cabinet, did you? Did that just happen? MOO! Gregory

Anonymous said...

"My step-father had the gun cabinet for more than 20 years. Was that a "gift" or a "loan"? "

I would say that it was a gift of less than the entire interest in the property.

Anonymous said...


I admit it's a stretch, but my point was (1) sometimes furniture is "loaned", and (2) it is difficult to say beyond a reasonable doubt that the lounger was a gift instead of a loan.

This week, I bought a car for my oldest daughter. The car is in titled my name but only she drives it. Is that a gift or a loan? If you have to decide whether I should go to prison based on that determination, shouldn't you base your decision on something more than my daughter's mere possession and control?

Anonymous said...

JLS says...,

Yeah I came here to make one of the points Bill Anderson and some other have made. It is hard to believe the guy who typed the words:

And (given that he wasn’t exactly dealing with a sympathetic jury pool), he might still have been convicted Could be so blind to the key similarity. It really is key to both cases that the prosecutors, both Federal and Nifong, knew if they could get the defendants into court, they would win due to jury prejudice.