In a series of savage benchslappings aimed at federal prosecutors, a growing group of district court judges is airing its displeasure with the trial tactics employed by the DOJ, writes Politico's Josh Gerstein.
The most high profile of these upbraidings came when District Court Judge Emmet Sullivan overturned Ted Stevens' conviction for lying on his Senate financial disclosure forms and initiated an investigation of the prosecutors in the case. Sullivan said that the prosecutorial misconduct in the case, including inappropriate relationships with witnesses and the withholding of evidence from the defense, was the worst he had seen in his 25 years on the bench. But Sullivan's actions were only the latest in a series of judicial chastisements of prosecutors, particularly in D.C. courts. Gerstein lists several other cases where judges have removed prosecutors from cases or overturned verdicts because of prosecutorial misconduct, including two Guantanamo detainee cases.
Gerstein suggests that the DOJ is currently suffering from a credibility gap based on its actions and policies during the Bush Administration. One anonymous source quoted in Gerstein's piece thinks that judges are uneasy about the possibility of past cases having been tainted by the actions of overzealous prosecutors, and so they are airing their frustrations in order to put an end to the culture at the DOJ that gave rise to those actions.
Attorney General Eric Holder has promised sweeping changes at the DOJ to address these concerns, and already announced that he would replace the head of the department that investigates allegations of misconduct by DOJ attorneys.
Holder also sent a strong message by declining to defend Stevens' conviction or retry him. Holder claimed that by dismissing the case, a move that caused him "great pain," he showed the world that the DOJ under the new administration would not conduct itself as it had in the past.
The real question is whether Holder will be able to change the culture that has sprung up at the DOJ after eight years of the Bush Administration. Plus, the culture might not be tied to any administration at all, and is instead a product of the drive of US attorneys to rise through the ranks by racking up an impressive win-loss record. If that's the case, how much of a chance does Holder really have?
And how long will it be before we start to see the first federal prosecutors jailed for their actions at trial?