Editorial: Prosecutors in Stevens’ trial need sanctions

Prosecutors of ex-senator now in trouble. Good.

It seems that a serendipitous confluence of unusual events is responsible for the heightened scrutiny that prosecutors who worked on the now-dismissed corruption case of former Alaska Republican Sen. Ted Stevens are receiving. Whatever the reasons, the attention is welcome, especially if it leads to more effective sanctions against prosecutorial misconduct.

Mr. Stevens was convicted last October, just before losing his bid for reelection, on seven counts of lying about some $250,000 in gifts he received, including free renovations on his house in Alaska. Last week, however, Attorney General Eric Holder asked the judge in the case to dismiss the charges because prosecutors had engaged in serious misconduct. An FBI agent had come forward to complain about the prosecutors, and an investigation showed that the prosecutors had withheld information from the defense that could have been exculpatory.

U.S. District Judge Emmet Sullivan not only dismissed the case, he appointed an outside lawyer to investigate the conduct of six members of the prosecution team. The investigation could lead to reprimands, disbarment, even criminal charges.

This situation seems to have depended on some unique circumstances. An FBI agent got angry enough to denounce prosecutors. A new attorney general, determined to put his own stamp on the Justice Department, found a case in which he could show his fairness in the case of a prominent member of the other political party. And a judge who was already upset — he had held several people in contempt during the trial — found a situation in which he could do more than just grouse to his colleagues.

We hope that this case leads to more widespread reform — or at least more effective oversight — of a practice that is more common than many would like to admit, for quite human reasons.

The adversarial system that has evolved in our courts, in which prosecutors work aggressively to get convictions, and defendants are entitled to a defense that is just as aggressive and savvy, is generally admirable. But no human system is perfect.

Prosecutors take an oath to serve justice rather than to get convictions, and at some level most take that oath sincerely. But there are strong incentives to focus on convictions. That’s how people tend to keep score. Withholding potentially exculpatory evidence from the defense is prohibited, but it is seldom punished severely if discovered. So it happens. Defense attorneys use every available legal maneuver as well and have been known to get clearly guilty defendants off.

Whatever the outcome of the Stevens case investigations, they should shed a spotlight on the issue of prosecutorial misconduct — which is especially egregious when it results in freeing a guilty person — and deter it to some extent. Other reforms might be considered.

Timothy Lynch, who heads criminal justice studies at the libertarian Cato Institute, told us that one reform might be to have a new trial automatically whenever evidence is withheld from the defense. At present, courts typically conduct an inquiry into whether the misconduct would have affected the outcome of a case before a new trial is considered. But judges and prosecutors really dislike new trials, Mr. Lynch says, and making them automatic would be an effective deterrent.

We would suggest that more individual accountability might be appropriate. If the worst that happens is a new trial, prosecutors might consider bending the rules, but if they are subject to personal sanctions — firing, disbarment or even criminal charges — that would be a powerful deterrent.

Whether this case leads to institutional reform, however, the actions taken are welcome.