A Prosecutor’s Duty –

Brendan Sullivan one of the most prominent criminal defense lawyers in the country who’ll always be remembered by his “I’m not a potted plant” statement during the Oliver North hearings, recently wrote about his defense of Alaska Senator Ted Stevens.  He expressed his dismay at the actions of the Department of Justice when confronting the actions of its prosecutors who withheld critical evidence during Stevens’ trial.  But in doing so he wrote about Eric Holder.  “Holder deserves credit for recognizing the extent of the prosecutors’ misconduct and seeking an immediate dismissal. The day after the case was dismissed, the attorney general went to the courthouse where Stevens was tried and personally swore in a new group of assistant U.S. attorneys.”

Now I’m not a great admirer of Holder.  I had a case on the other side of him when he was in private practice.  We met in a typical large conference room at his DC law firm.  He made certain commitments and backed off when time came to produce the material.  That, and other things, left me with an uncomfortable feeling.

I was also at a court hearing in DC relating to my matter with a friend Janine.  Holder was a lead attorney.  He made some unflattering  statements in open court about an AUSA handling the case on the other side.  The kind of statement you might say to opposing counsel in the corridor but not in open court.  I figured the AUSA would fight back.  He didn’t.  I reasoned Holder was so well connected with the Department of Justice that the AUSA felt the safest course in keeping his job was to just take the abuse.

After the hearing the media waited outside to solicit comments from the participants in the case.  Some on Holder’s team appeared.  Holder was a no show.  I remarked to Janine, “I wonder where Holder is?”  She said, “He’s over there hiding behind the pillar.”  There he was.  A big guy in court but hiding from the media.

Maybe he’s changed now that he’s Attorney General.  He told the  new assistant US attorneys he was swearing in, “Your job as assistant U.S. attorneys is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing.

Sullivan went on: “There could not be a clearer standard of conduct for our federal prosecutors.”

I agree. Holder was right on the mark spelling out the job of a prosecutor.  It’s sort of a shame that he had to do it.  Whether you represent the United States or a state, a prosecutor’s job is not to get a conviction but to do the right thing.  That, of course, is not the standard for a defense lawyer.  If you think the burden is heavier on one side than the other you are right on the mark.  That’s how it should be.  Our justice system requires a prosecutor to prove a case  beyond a reasonable doubt, a defendant has no burden of proof.

I hope the prosecutors of Whitey will follow Attorney General’s Holders admonition.  The temptation not to do so is very great.  To begin with their main witnesses lived lives of lies.  I touched upon this on July 9 when I wrote about purchasing evidence against Whitey.