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John Steele of Commentary, a magazine created by the American Jewish Committee which has become a “flagship of neoconservativism” in the U.S. media, recently wrote a piece about the lack of accountability for prosecutorial misconduct and the way that it undermines public confidence in our criminal justice system.

The piece is available online here. We have reposted the piece in full below.


John Steele, “The Havoc of Prosecutorial Misconduct,” Commentary, September 20, 2013.


With the exoneration of Tom Delay in Texas yesterday, yet another high-profile case of prosecutorial misconduct has emerged. This follows such other cases as that of Ted Stevens in 2008, and the notorious Duke Lacrosse case. But these were all cases in which top-flight legal talent was able to uncover the misconduct. There are many more that go unrecognized. The Innocence Project of Florida lists numerous examples, including one in which a man spent 25 years in jail for the murder of his wife, a murder he didn’t commit. They have a list of 1,100 exonerations in the years 1989-2012. Forty-two percent of those false convictions were caused by official misconduct, roughly half by the police and half by prosecutors.

Beyond the individual tragedy of an innocent man rotting in jail, these cases can have national repercussions. Senator Ted Stevens was convicted of seven counts of making false statements on October 27th, 2008. Outrageous prosecutorial conduct was soon revealed and Attorney General Holder asked that the convictions be set aside, which they were.

But a week after his trial, the 7-term senator lost re-election by 3,724 votes. There can be little doubt that had this case not been brought, which it obviously should not have been, he would have cruised to re-election. What difference, except to Ted Stevens, did that make? A lot: his successful Democratic rival provided the 60th vote in the Senate in 2010 to push ObamaCare through.

It was prosecutorial misconduct that gave us the most unpopular major piece of legislation in American history.

Why does this happen so often in this country? In a high-profile case, there can be tremendous pressure on both the police and the prosecutors to produce a perp and then a conviction. Cutting corners is one way to do that. But also, prosecuting attorneys in this country, uniquely in the common-law world, are politicians. Winning a major case is a big addition to their résumé.

While there was no misconduct in the prosecution of Martha Stewart, it is highly unlikely that there would have been a criminal case at all had she merely been rich and not both rich and very famous. At worst, she would have been forced to “disgorge the profits.” So, basically, Martha Stewart was tried for the crime of being Martha Stewart. (To be sure, her legal team completely bungled the case, making her conviction much more likely.)

It is impossible to take the politics out of the office of prosecuting attorney. It is too deeply imbedded in the American system. (Tom Dewey, after all, went from Manhattan District Attorney to the very door of the White House in less than a decade.) But severely punishing prosecutorial misconduct—complete with disbarment and serious jail time—would go a long way towards making ambitious prosecutors think twice before withholding exculpatory evidence and other such misconduct.

But such misconduct is hardly ever punished. No one thinks the prosecutor in the Tom Delay case will suffer any penalty. The prosecutors in the Ted Stevens case were fired from the Justice Department, but remain free men. Only Mike Nifong, the prosecutor in the Duke Lacrosse case, was punished by disbarment. Convicted of criminal contempt, he spent one day in jail.

Lawyers, it seems, take care of their own, regardless of how deeply they stain the profession of law.

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