Prosecutorial misconduct: Eric Holder and the Supreme Court

 Broadcast on WAMC Northeast Report, April 14, 2009. [On the striking difference between the sense of responsilibity displayed by by Attorney General Eric Holder and the absence of responsibility display by our Supreme Court.]

Here is what U.S. Attorney General Eric Holder said about the prosecution of the case against former Senator Ted Stevens:

“In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant. After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

“The Department’s Office of Professional Responsibility will conduct a thorough review of the prosecution of this matter. This does not mean or imply that any determination has been made about the conduct of those attorneys who handled the investigation and trial of this case.

“The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis. I am proud of them and of the work they do for the American people.”

Compare that with the recent decision in Van de Kamp v. Goldstein. Thomas Lee Goldstein served twenty-four years in prison for a murder he did not commit. The prosecutor used the testimony of a jailhouse informant who claimed at trial that he had received no benefits for his testimony in this and other cases when in fact he had and had received multiple reduced sentences in return for his testimony. As the federal appellate Court explained, the U.S. Supreme Court nearly a decade before Goldstein’s trial, made it clear that “prosecutors’ offices have a constitutional obligation to establish ‘procedures and regulations . . . to insure communication of all relevant information on each case [including promises made to informants in exchange for testimony in that case] to every lawyer who deals with it.’” [Goldstein v. City of Long Beach, 481 F.3d 1170, 1172 (9th Cir. Cal. 2007) quoting Giglio v. United States, 405 U.S. 150, 154 (1972).] But the prosecutor’s office in Long Beach, California simply ignored the U.S. Supreme Court.

So after winning his freedom, Goldstein sued the prosecutors in charge of that office for failing to abide by their responsibility to supervise and train their staff to get and provide the information to defense counsel and for failing to set up a filing system that would have made that information available to the prosecutor who handled the trial. Instead, Van de Kamp and his deputy ignored their obligation with the risk of sending people to a life in prison because of perjured testimony.

The U.S, Supreme Court should be the moral guardian of our Constitution. Now here is what that August Court said: “prosecutors … enjoy absolute immunity”, absolute immunity for failing to instruct their staffs to turn over exculpatory material, absolute immunity for refusing to set up a system which would make clear which witnesses had gotten promises or benefits for their testimony.

In the US Attorney’s office, Eric Holder takes responsibility.

In the U.S. Supreme Court, no one takes responsibility – prosecutors can ride roughshod over innocent people, and it’s OK with this Court.


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