Government Prosecutions Should Not Be Based on Innuendo

In his closing arguments in the federal prosecution of a current United States Senator, the AUSA reportedly asked the jury to infer guilt from a statement made by the Senator years ago.

During his closing argument the prosecutor used a vague portion of a single piece of evidence that was only admissible at trial because of an exception to the hearsay rule. The prosecutor played a portion of a phone call between Senator Stevens and another witness that was secretly recorded. In the portion of the recording played for the jury, Senator Stevens made a vague reference to jail time.

In his closing argument, the prosecutor argued that the jury should infer from this vague reference that Senator Stevens had guilty knowledge of his alleged failure to follow Senate reporting requirements. The prosecutor argued to the jury – "who talks about spending a little time in jail unless they have done something wrong?"

My concern is not about the guilt or innocence of Senator Stevens. My concern is about the strategy and tactics used by federal prosecutors. In this case for example, the prosecutor argued that it is proper to use an inference from a snippet of vague evidence to convict someone beyond a reasonable doubt. Federal prosecutions should be held to a higher standard.

In the case in question, a case where the prosecution knew they would be under close scrutiny because of the profile of the defendant, the Court excluded other evidence from the trial because of prosecutorial misconduct. If we use the same lens to view the conduct of the prosecution that they are asking the jury to use to view the evidence against Senator Stevens, then where will that lead?

We have an opportunity to change course. We can reverse the trend toward criminalization of conduct. We can become a society that is understanding, a society that is not based on fear and hate.

Or not.