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Pennsylvania coroner Cyril Wecht used a county fax machine to send personal faxes, and was charged with multiple counts of criminal fraud. He says he spent $8 million successfully defending himself.

Covering prosecutors calls for tough-minded reporters

COMMENTARY | October 18, 2009

Writer Andrew Kreig cites concern over abusive prosecutorial conduct and suggests approaches for reporters to dig a little deeper. A question: Was Ted Stevens targeted to deflect from the overwhelming pursuit of Democrats, not Republicans, under Bush?

By Andrew Kreig

A federal judge who lashed out at Justice Department prosecutors over misconduct in last fall’s trial of Sen. Ted Stevens of Alaska is just one of the experts who fear widespread threats to our country’s basic civil rights.

“In nearly 25 years on the bench,” U.S. District Judge Emmet Sullivan told his District of Columbia courtroom in April, “I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.” Under such pressure, the Justice Department launched a criminal investigation of the Stevens prosecutors and vacated the convictions. But those actions were too late, of course, to save the Senate seat the Alaska Republican narrowly lost in November after serving 40 years.

Cases like this are creating bipartisan alarm nationally among legal experts, including criticism from longtime chief federal judges who wrote Attorney Gen. Eric Holder last spring seeking better oversight of prosecutors (see here for one such letter, and here for context).

I’ve witnessed the change after covering the department fulltime for five years as a Hartford Courant newspaper reporter from 1976-1980 during the Justice Department’s better days. I’m now researching abuses in DoJ’s handling of official corruption cases nationally, particularly in light of University of Missouri research by Prof. Donald Shields indicating that the department targeted Democrats over Republicans by a 7:1 ratio from 2001 to August 2007 during most of the Bush administration.

Who and What

As an overview, covering prosecutors requires especially tough-minded journalists, according to former New York Times reporter David Burnham, now head of the Transactional Records Access Clearinghouse in Washington, DC.

”News organizations have an insatiable lust for ‘scoops,’” he wrote in his 1996 book Above the Law: Secret Deals, Political Fixes and Other Misadventures of the U.S. Department of Justice. “And prosecutors, with all their paid and unpaid informants and wiretaps and grand juries, are in a position to obtain and leak more fascinating gossip about the dark side of society than other officials in government. Can anyone be truly surprised then that the actual function of many of the reporters who cover federal and local prosecutors is to be a high-priced stenographer, if not the ventriloquist’s dummy?”

In early 2007, the scandal leading to Attorney Gen. Alberto Gonzales’s resignation erupted over revelations that his Justice Department purged eight U.S. attorneys in 2006 for political reasons.

New York Times columnist Paul Krugman warned reporters early on to scrutinize decision-making by those remaining among the nation’s U.S. 93 U.S. attorneys. ”For now, the nation’s focus is on the eight federal prosecutors fired by Attorney General Alberto Gonzales,” Krugman wrote in March 2007. ”The bigger scandal, however, almost surely involves prosecutors still in office.”

Krugman noted that prosecutors went after elected Democrats far more often than Republicans, according to the University of Missouri study of federal public officials, candidates and fund-raisers known to have been investigated by the Bush Justice Department.

Did White House strategist Karl Rove try to use the Justice Department to target Democrats, as alleged? In the book In Justice last year, fired New Mexico U.S. Attorney David Iglesias described improper pressures from his state’s political leaders to file pre-election indictments to help Republicans. Iglesias, a Bush appointee, entitled a final chapter: “All Roads Lead to Rove.

But few reporters have the freedom to write about the motivations behind hundreds of confidential investigations. The House Judiciary Committee majority issued comprehensive reports in 2008 and 2009, but that’s only the start of reporting, of course.

Recent Research

In researching these matters, most of my recent articles have focused on the federal prosecutions of former Alabama Gov. Don Siegelman and former Pennsylvania county coroner Dr. Cyril Wecht. Each is a Democrat claiming that the corruption charges stemmed from partisan politics. Both tales are multi-year sagas that I won’t rehash here, except to provide links to the most recent articles here and here.

Even under the Obama administration, the Justice Department has continued to argue that its prosecutions in the Siegelman and Wecht cases were entirely proper. Rove and former White House Counsel Harriet Miers responded this summer to longstanding House Judiciary Committee subpoenas. Rove and Miers denied during their interviews any improper interference at the Justice Department, albeit while citing memory lapses on many specific questions.

Further undermining a theory of simple partisan political motivations is the Bush Justice Department’s aggressive push against the Republican Stevens, who was convicted of seven counts of violating federal ethics laws by failing to report gifts from friends. Prosecutors repeatedly violated legal requirements to provide the defense evidence that might exonerate the defendant. ”It strikes me that this was probably intentional,” said the presiding judge, as quoted in “A Cautionary Tale: The Ted Stevens Prosecution,” the October cover story in Washington Lawyer published by the DC Bar.

The magazine story by Anna Stolley Persky was a thorough and valuable contribution to public understanding of the case, as you can see here. Yet some questions remain unresolved. The elephant in the room: Did these experienced prosecutors have any hidden motive for violating basic trial procedures to win convictions against the Republican Senator?

Attempted Answers

As broader context for any such inquiry, the Cato Institute hosted a remarkable conference that I attended this fall on Justice Department goals and misconduct through the years. The speakers made the case that both political parties have arrogantly empowered federal prosecutors to use vague laws in recent decades to target individuals in “creative” or other arbitrary ways. The introduction was by Washington Times columnist Tony Blankley, who said Democrats and Republicans alike should be concerned about vague laws and abusive practices by federal prosecutors.

Illustrating these points is the new essay collection, In the Name of Justice, edited by Cato Criminal Justice Project Director Timothy Lynch. The book explores what should be a “crime” - and whether our laws accomplish our goals. ”No” is the essence of Lynch’s response.

Lynch argues, for example, that defendants are typically ruined financially simply from being charged. He notes that 95% of prosecutions are resolved by plea bargains. Yet his book largely focuses upon a broken system’s cost to society, not to defendants. Lynch begins by reexamining such basics as:

· Ignorance of the law. “The sheer volume of modern law makes it impossible for an ordinary American household to stay informed.”

· A criminal code with clear and objective terms. ”There is precious little difference between a secret law and a published regulation that cannot be understood.”

· Strict liability. “Strict liability criminal offense exploded during the 20th century as legislators created hundreds of ‘public welfare offenses’ related to health and safety.”

Compelling evidence comes also from Boston defense attorney Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent and a House Judiciary Committee witness on Sept. 29. His theme: “An average busy professional in this country” unwittingly commits three felonies daily that a creative prosecutor could pursue to conviction with scant review by courts, defense attorneys and the news media.

He says, “When the statutes are vague you’re totally helpless.” He covers abusive prosecutions in health care, high-tech, law, financial services, labor, media and national security, and alleges that Michael Milken and Martha Stewart are among the many victims of selective prosecution pressured into unwarranted convictions.

Silverglate notes that Stalin’s Soviet Union outlawed hooliganism. “Who was a hooligan?” he asks. ”I guess it depended on whether the government in power liked you, or didn’t like you….And that really is something that has survived the Soviet Union, has in fact crossed continents - and has arrived here in the good old USA.”

Why? What’s To Be Done?

“Why is it that the Department of Justice does this?” Silverglate asks. ”To some extent, this weapon is aimed at unpopular citizens, and members of unpopular or suspicious groups.” But as indicted in Cato’s video here, the defense lawyer confessed that he’s baffled over prosecution motives even after practicing civil rights law since his graduation from Harvard Law School in 1967. So, he says, his primary goal is to document problems, leaving solutions primarily for others.

Taking up his challenge, let me hazard a few recommendations.

Regarding the willingness by Stevens prosecutors to cut corners in their requirement to provide Brady materials to the defense: My bet is that prosecutors needed a Republican “trophy” -- fast -- out of fear that their overall track record of targeting Democrats (documented by the University of Missouri data) might create problems for them during a Democratic presidency. Stevens became the convenient fall guy largely because of long-simmering investigations in Alaska involving his friends and son, and his insistence on a speedy trial.

This would make Stevens in effect a “political” target because he was treated differently because of his political affiliation, even though additional factors doubtless included his crusty personality and insistence through the years on vast amounts of federal spending for Alaska. For what it’s worth, a former Republican Senate colleague of Stevens and a longtime Republican Senate staffer each agree with my theory, although neither claimed to have specific inside information from the Justice Department or from Stevens, who declines comment.

Finally, what does this mean for journalists covering such cases?

The basics have never been more important - or more difficult to accomplish because of dwindling resources that increase the time pressures and other dangers David Burnham decried in the 1990s. My suggestions are reminders that we all:

1. Focus on documents, which sometimes contain explosive material no one knows. Behind the portentous language of the federal fraud indictment against Pennsylvania coroner Cyril Wecht, for example, most of the charges going to trial involved 23 felonies for his sending personal faxes from his office machine. The defendant says he spent $8 million in his successful defense, with total out-of-pocket costs to the county from the 23 faxes just $3.26. Many documents are available on the Internet, and all filings are on the government’s PACER system.

2. Suspect any piece of evidence, advocate or oversight body. Silverglate is among those suggesting that judges, the media and even hired-gun defense attorneys often view their role as, in effect, to process guilty defendants through the system. Stevens, whatever his adversities, at least had a judge capable of outrage over violations of a defendant’s right to a fair trial.

3. Use clearly labeled opinion that’s sometimes vital to tell the story. Last spring, I was stymied in trying to write apt opening paragraphs that would combine breaking news and my months of research about the intrigue surrounding the Siegelman prosecution in Alabama. Volunteering guidance, former National Press Club President and retired Washington Post editor Robert Ames Alden cut the Gordian Knot by reminding me that a summary of findings better serves readers than trying to avoid anything that could possibly be construed as “opinion.”

On review, my recommendations seem regrettably basic for such an important challenge as monitoring the courts. So let me conclude with the advice I received during my introductory tour of Hartford’s federal courthouse in 1976 on my first day covering the federal beat for the Hartford Courant.

“Remember in your reporting, the government is always right!” said Paul Coffey, a young prosecutor with a big smile. I think he was joking, but there was a hint also of the go-along, get-along messaging inevitable in any such meeting. Whatever the case, Coffey would go on to win a pioneering case against the mob in Connecticut, and then lead the Justice Department's nationwide organized crime strike force that would smash the Mafia's power and thereby help the country immeasurably.

A different tone came from my Courant predecessor on the beat Thomas “Dennie” Williams when he took me aside at the end of the tour he’d led. ”Don't ever forget,” he advised, holding me by the elbow and looking me in the eye, “that for some of the people coming through this court you're the last chance they've got.”

leg counsel
Posted by carol pillsbury patton
10/19/2009, 11:42 PM

Andy: I urge you to keep pacing yourself and continuing to ask the questions that are tough to answer. You are giving the legal community and others who are also concerned about what and where the court system of jurisprudence is heading for in the forseeable future. More sunlight on the issues and outrageous behavior of some of the elected and appointed members of the elected ruling class is a welcome breath of fresh air.

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