By Joel Thurtell
The twists and turns in the case of onetime Alaska Senator Ted Stevens must be mind-boggling to Washingtonians.
But the outcome there might also turn some heads in Detroit, if a federal judge here chose to do what his D.C. counterpart just did — appoint a special prosecutor to investigate misbehavior by federal prosecutors in a criminal case.
In Detroit, the investigation might answer some questions about the involvement of a Pulitzer Prize-winning and Michigan Journalism Hall of Fame newspaper reporter’s role in furthering prosecutors’ aims.
For Stevens, a jury’s verdict of guilty on seven felony counts was devastating. It cost him re-election to the U.S. Senate by a thin margin.
But in the last couple weeks his conviction was overturned by the new U.S. Attorney, Eric Holder, because of misbevavior by federal prosecutors. Now the federal judge in the case, Emmet Sullivan, has appointed a special prosecutor — an attorney outside the Department of Justice — to investigate wrongdoing by the prosecutors themselves.
The New York Times reported today, April 8, 2009, that federal court rules allow a judge to choose and appoint his own special prosecutor in contempt investigations.
A contempt probe? Seems to me that’s what U.S. District Judge Robert Cleland has going in his court with the civil lawsuit of former federal prosecutor Richard Convertino. Convertino was accused by the Department of Justice of the same kind of misbehavior — withholding crucial evidence from defense attorneys — that now dogs the prosecutors from the Stevens case.
But there’s a huge difference: Convertino was tried and acquitted of wrongdoing.
For years, Convertino has been trying to bring federal prosecutors to justice for misbehaving towards him before he was even charged. His lawsuit contends that his bosses in the Department of Justice first attempted to try him in the media before laying their criminal charges.
In the British judicial system, no such prosecutorial misbehavior would be possible, because pretrial media reporting is banned. But in the good ol’ United States, we have our cherished First Amendment, which emboldens journalists to smear people with half-baked allegations before they are brought to court. Compliant reporters can soften up a target, biasing potential jurors’ opinions before a case ever gets to court.
Convertino contends prosecutors leaked damaging information to Detroit Free Press reporter David Ashenfelter before Convertino was charged. According to Judge Cleland, that was illegal.
Revealing inside information before the prosecution lays out its case publicly in court is kind of like insider trading on the stock market — it tilts the playing field in favor of those who hold or withhold the information.
In the case of the Detroit Free Press, the newspaper reporter and his editors chose to publish the ill-gotten tips, even going so far as to print the name of an undercover FBI source. That may have been illegal — a violation of the Espionage Act.
Convertino’s lawsuit has been stymied by Ashenfelter’s steadfast refusal to name the federal prosecutors who fed him his purloined information. In the beginning, he argued a First Amendment right to keep mum. But the judge said his testimony amounted to evidence from a witness to criminal activity, and the U.S. Supreme Court doesn’t allow anyone, even journalists, to use the First Amendment as a shield against giving evidence in a criminal case.
Now, Ashenfelter — or rather, the newspaper’s attorneys — claims he might be charged with a crime or crimes if he reveals his government tipsters’ names. The Fifth Amendment protects against self-incrimination, and he’s taking the Fifth.
So far, the judge has not found the reporter in contempt.
There are many questions in this case. The key question is, Who were Ashenfelter’s sources? Did the reporter conspire with prosecutors to smear Convertino? If publication of illegally-gotten information was illegal, were the reporter’s editors complicit?
Delving into the relationship between reporter and federal sources, plumbing the role of editors and even the newspapers’ lawyers could shed light on just how such an abuse of the judicial system could happen, with help from a newspaper.
If such a miscarriage of justice, aided and abetted by the media, could happen in Detroit, where else has it gone on?
Drop me a line at joelthurtell(at)gmail.com
