By Anthony Cotton
One might think that former Republican Senator Ted Stevens, now deceased, must have very little in common with baseball legend Roger Clemens. Senator Stevens served more than 40 years in the United States Senate while seven-time Cy Young winner Roger Clemens is one of only four pitchers to have more than 4,000 strikeouts in his career. Despite the obvious biographical differences between these two, both were victims of over-zealous criminal prosecutors and both saw their reputations shattered, if not destroyed, by these criminal allegations.
On July 29, 2008, Stevens was indicted by a federal grand jury on seven counts of failing to properly report gifts. The indictment followed a rather lengthy FBI investigation of corruption in Alaskan politics. In a strikingly short period of time, Stevens was charged, went to trial, and was convicted of the felony charges. The convictions would not last for long. In February, 2009 an FBI agent filed a whistleblower affidavit, alleging that prosecutors and FBI agents conspired to withhold and conceal evidence that could have resulted in an acquittal. As the investigation ensued, it became clear that the prosecution withheld exculpatory evidence from the defense team (commonly called Brady material in federal court). The trial judge called these actions “outrageous” and the charges were soon dismissed with prejudice. The trial judge further described this as “the worst case of prosecutorial misconduct” he’d ever seen.
In July, Roger Clemens’ federal prosecution ended in a mistrial. Clemens was indicted on charges that he lied at a Congressional hearing about whether or not he had ever used performance enhancing drugs. The federal prosecutors expected to call former pitcher, Andy Pettitte, to testify that Clemens had admitted that he used human growth hormone. Pettitte also supposedly told his wife about Clemens’ admissions. The federal judge ruled that the hearsay testimony from the wife could not be used to bolster Pettitte’s testimony. Despite the clear ruling, the federal prosecutors did exactly that. The government played a videotape for the jury of a congressional hearing in which a congressman referred to Pettitte’s wife’s hearsay statement. The matter is now scheduled on Clemens’ motion to dismiss; if the judge finds the government acted with the intent to cause a mistrial, double jeopardy may very well bar any future prosecution.
All of these examples bring into sharp focus the tremendous power wielded by federal prosecutors. Unlike the role of the defense attorney (zealous advocacy for a client) the prosecution has a different duty (to ensure that justice is done). Given this duty, sanctions must exist when Brady violations are committed. To have any meaningful impact, those sanctions must be swift and certain. Examples of misconduct are not rare – a USA Today investigation identified 201 criminal cases in which federal courts found that prosecutors had broken laws or other ethical rules. Despite the seriousness of the misconduct, the Justice Department frequently took years to investigate what went wrong, and the prosecutors faced few, if any consequences.
Recognizing these problems, the National Association of Criminal Defense Lawyers (NACDL) has introduced model legislation which would put teeth into the prosecution’s Brady obligations. If enacted, the law would give the trial court a wide range of remedies if the prosecution fails to live up to its duties. Under the proposed legislation, the court could postpone proceedings or limit or exclude testimony. In extreme cases, the court would now have the power to dismiss the case or order a new trial. It is critical that prosecutors recognize the ramifications of failing to adhere to their constitutional duties and judges need authority beyond their supervisory powers to enforce the requirement of discovery. Pretrial gamesmanship must not elevate an adversarial proceeding over the demands of fair procedure and the search for truth. This legislation, if enacted, will be a strong step toward fulfilling the promise of Brady v. Maryland.
Anthony Cotton is a partner at Kuchler & Cotton Law Offices in Waukesha. He is on the Board of Directors of the Wisconsin Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers and is the President of Juvenile 180 Diversion a program for young offenders in Waukesha. He was named a 2010 Up and Coming Lawyer by the Wisconsin Law Journal.