Home / Commentary / Blogs / ON THE DEFENSIVE: The dangers of over-zealous prosecution

ON THE DEFENSIVE: The dangers of over-zealous prosecution

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.

More from ‘On the defensive’


  1. see link for full story
    CNN exclusive: FBI misconduct reveals sex, lies and videotape

    By Scott Zamost and Kyra Phillips, CNN Special Investigations Unit
    January 27, 2011

    Editor’s note: Some content in this report may be offensive to readers. For more on this CNN exclusive story, watch Kyra Phillips’ full report on “The Situation Room With Wolf Blitzer” tonight starting at 5 p.m. ET.

    Washington (CNN) — An FBI employee shared confidential information with his girlfriend, who was a news reporter, then later threatened to release a sex tape the two had made.

    A supervisor watched pornographic videos in his office during work hours while “satisfying himself.”

    And an employee in a “leadership position” misused a government database to check on two friends who were exotic dancers and allowed them into an FBI office after hours.

    These are among confidential summaries of FBI disciplinary reports obtained by CNN, which describe misconduct by agency supervisors, agents and other employees over the last three years.

    Read the FBI documents obtained by CNN

    — An employee had “a sexual relationship with a source” over seven months. The punishment was a 40-day suspension.
    — The supervisor who viewed “pornographic movies in the office while sexually satisfying himself” during work hours received a 35-day suspension.
    — The employee in a “leadership position” who misused a “government database to conduct name checks on two friends who were foreign nationals employed as exotic dancers” and “brought the two friends into FBI space after-hours without proper authorization” received a 23-day suspension. The same employee had been previously suspended for misusing a government database.
    — An employee who was drunk “exploited his FBI employment at a strip club,” falsely claiming he was “conducting an official investigation.” His punishment was a 30-day suspension.
    — And an employee conducted “unauthorized searches on FBI databases” for “information on public celebrities the employee thought were ‘hot'” received a 30-day suspension.
    Child Porn Probe Leads To FBI Headquarters
    Target claims inquiry is just a “misunderstanding”

    JANUARY 5 2011–The government’s pursuit of suspects trafficking in child pornography recently led federal agents to a familiar address–the FBI’s Washington, D.C. headquarters, where a bureau official is the subject of an ongoing criminal probe, The Smoking Gun has learned.

    The investigation by the Department of Justice’s inspector general is focusing on FBI employee Joseph Bonsuk’s receipt of nearly 80 illicit images that were e-mailed to him by an Illinois sex offender whose rap sheet includes felony convictions for bank robbery and solicitation of a minor.

    Prosecutors move to dismiss charges against former Scout leader

    January 3, 2007

    NEW HAVEN, Conn. –Federal prosecutors have moved to dismiss charges against a retired FBI agent who was indicted on child sex charges dating back more than a decade when he was a Boy Scout leader, in response to the death of his accuser.

    William Hutton, 63, of Killingworth, was arrested in February on charges he enticed a member of his Scout troop to Maine for the purpose of sexual activity in 1994 and 1995.

    3rd read
    Edward Rodgers was in charge of investigating cases of Child Abuse at the FBI

    THE DENVER POST – Voice of the Rocky Mountain Empire
    May 17, 1990
    Sisters win sex lawsuit vs. dad $2.3 million given for years of abuse
    By Howard Prankratz
    Denver Post Legal Affairs Writer

    Two daughters of former state and federal law enforcement official Edward Rodgers were awarded $2.319,400 yesterday, after a Denver judge and jury found that the women suffered years of abuse at the hands of their father.

    The award to Sharon Simone, 45, and Susan Hammond, 44, followed testimony of Rodgers’ four daughters in person or through depositions, describing repeated physical abuse and sexual assaults by their father from 1944 through 1965.

    Rodgers, 72, who became a child abuse expert after retiring from the FBI and joining the colorado Springs DA’s office, failed to appear for the trial. But in a deposition taken in March, Rodgers denied ever hitting or sexually abusing his children.

    4th read

    FBI Agent Pleads Guilty to Child Abuse

    Tuesday February 17, 2004 11:46 PM


    Associated Press Writer
    WASHINGTON (AP) – The former chief internal watchdog at the FBI has pleaded guilty to sexually assaulting a 6-year-old girl and has admitted he had a history of molesting other children before he joined the bureau for what became a two-decade career.

    John H. Conditt Jr., 53, who retired in 2001, was sentenced last week to 12 years in prison in Tarrant County court in Fort Worth, Texas, after he admitted he molested the daughter of two FBI agents after he retired. He acknowledged molesting at least two other girls before he began his law enforcement career, his lawyer said.

    5th read

    Monday August 8, 2005 Longtime FBI agent sentenced to prison on child porn count
    also see http://www.policeone.com/news/113935-Longtime-Idaho-FBI-Agent-Sentenced-for-Possessing-Child-Porn/

    Associated Press Writer

    BOISE, Idaho (AP) A longtime FBI agent who helped arrest mountain-man Claude Dallas and was involved in a deadly 1984 siege involving white supremacists in Washington state is going to prison for 12 months after pleading guilty to possession of child pornography.

    William Buie, 64, of Boise, most recently worked as an investigator for the Idaho attorney general’s office.

    6th read

    February 22, 2007
    SPOTSYLVANIA, Va. A F.B.I. analyst has been sentenced to seven years in prison for having sex with a young girl in Spotsylvania County.
    Forty-four-year-old Anthony John Lesko entered an Alford plea yesterday in Spotsylvania County Circuit Court to nine counts of felony indecent liberties upon a child. An Alford plea means Lesko doesn’t admit guilt but believes there is enough evidence for a conviction.
    Authorities say Lesko engaged in a sex act with her nine times, beginning when she was nine years old.
    According to the plea, Lesko said he was a victim in the case. He said the girl initiated the contact.

    7th read

    FBI Agent Accused Of Masturbating In Public
    May 25, 2007 09:02 PM
    FBI Agent Accused Of Masturbating In Public

    Posted by, Marissa Pasquet KOLD News 13 News Editor

    FBI Special Agent Ryan Seese, 34, is facing sex offense charges after a cleaning woman said she found him masturbating in a women’s lavatory on campus, according to a University of Arizona police spokesman.

    8th read
    FBI agent arrested on child sexual assault charge

    Associated Press – January 15, 2008 6:14 PM ET
    PUEBLO, Colo. (AP) – An FBI agent is under arrest in Pueblo for investigation of sexual assault on a child by someone in a position of trust.

    Authorities say 53-year-old David Allan Johnson is being held in the Pueblo County jail today on a $100,000 bail.

    9th read

    Former Great Falls FBI agent sentenced on child sex charges

    Jan 23, 2008

    A man from Great Falls who’s accused of sexually assaulting five underage girls will be spending the next 10 years behind bars.

    Stanley Perkins, 64, changed his plea to guilty after police began investigating him for child molestation in August 2006.

    The former educator, who also served two years as an FBI agent, was sentenced on one count of felony sexual assault.

    10 th read


  2. The Racine Police accused me of a crime which I did not commit, the type of crime that only needs to have a witness, no physical evidence. The charges stuck because two officers said they saw me doing it. But that was a flat out lie, I wasn’t doing what they claimed. My life has been ruined, I no longer have any faith in the legal system whatsoever. My career and reputation have been destroyed. All sentences in Wisconsin are life sentences. There just doesn’t seem to be any reason to go on.

Leave a Reply

Your email address will not be published. Required fields are marked *