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.

Judge Makes Wrong Ruling on Spector Trial Evidence

The judge in the Phil Spector retrial has made a mistake that could jeopardize the outcome. In response to pretrial motions, Judge Larry Fidler has permitted the use at trial of an inflammatory statement made by Spector years before the murder of Lana Clarkson.

Judge Fidler has ruled that a police witness can testify at the re-trial about a derogatory statement made by Spector regarding women in general. The question now becomes, even though prosecutors won the right to use the evidence, should they?

Spector’s defense reportedly argued that the statement should be prevented from use at trial because it is prejudicial. However, most evidence used by prosecutors at trial is prejudicial to the defendant. This ruling really raises another issue.

The fact that the statement may be prejudicial seems to be the only reason why a prosecutor would want to use this piece of evidence. The problem with introducing evidence of this nature is that it is designed to put the defendant in a bad light, however it does not tend to prove whether Spector committed the crime that is being tried.

Just because someone may have said something mean or thoughtless in the past does not tend to prove that they committed a crime years later. Imagine if, at every trial, the prosecution could present evidence of every other bad thing the defendant did during his life. That tactic may convince a jury that a defendant is a bad guy. However, evidence of that nature is usually excluded. Evidence that is prejudicial is usually only admitted if it can prove a relevant issue in the case.

The point of a criminal prosecution should not be merely to win the case. Prosecutors should be held to a higher standard than attorneys in civil cases. Prosecutors are the representatives of the people and their focus should be on the truth. Ideally, personal vendettas should have no role in a criminal prosecution. Likewise, nor should a win-at-all-cost mentality.

The prosecution may want to reconsider whether it is proper to actually introduce this evidence in this trial. Even though the prosecution has won the right to introduce the evidence, they may want to take a step back and consider what they are planning to do. Do we -- the people -- really want prosecutors to obtain convictions by cutting corners or taking advantage of mistakes? Even when the mistake is in a ruling made by the judge? I hope not.

The Senator Steven’s Trial Goes to the Jury of Public Opinion

Federal Sentencing Expert, Geoffrey Mousseau, was asked his opinion on the outcome of the trial of Senator Ted Stevens.

Senator Ted Stevens, a Republican from Alaska, is being tried for violating ethics laws.

It is hard to support either side in this case, according to Mousseau. On the one hand, we have federal prosecutors who reportedly are mugging for the jury. On the other hand, we have someone who, during his 30-year tenure in the United States Senate has participated in the largest expansion of prison populations in US history.

US attorneys have one of the most powerful positions in society today. In the wake of scandals involving the politicization of that office, it is horrifying to think that the federal prosecutor in this case may be making faces to the jury as Stevens attempted to respond to her questions.

The reports on Senator Stevens’ conduct are not much better. Apparently he has taken a page from Clinton’s playbook and is attempting to parse words into oblivion. Is it really true that a member of the Senate does not understand a gift? Is it proper for a Senator to pretend to be confused in front of a jury? A loan? A gift?

A federal trial seems to be an inappropriate forum for undignified behavior. One can only hope that media reports are exaggerated and that the participants are treating the trial of a Senator as a solemn pursuit of the truth.