Jerome A. Cohen. Lesson in Integrity for All. SCMP (South Chine Morning Post)

April 18, 2009

The media on the mainland and in Taiwan took little note of last week’s sensational federal court decision in Washington that voided the criminal corruption conviction of former US senator Ted Stevens, the longest-serving Republican senator in American history.

Yet the case has profound implications for efforts on both sides of the Taiwan Strait to stamp out corruption while fostering a rule of law based on the adversarial system of criminal justice.

In recent years, Taiwan has made great strides in adapting the Anglo-American adversarial trial, minus the jury, to local conditions, and the mainland has been slowly moving in that direction, at least in principle. The adversarial system is based on equal combat between prosecutors and defence counsel before a neutral court. Their combat is governed by rules designed to promote fairness and accuracy.

One rule required by the US Constitution since the Supreme Court’s 1963 Brady decision is that the prosecution, which generally has more resources for gathering evidence than the defence, must turn over to the defence information in its possession that is likely to benefit the defence. Although the degree of transparency required by this rule is subject to debate, withholding significant evidence is a major ethical breach that can result in setting aside a conviction.

This is what just happened in United States vs Stevens, a case that had been brought by the Public Integrity Section of the Department of Justice (DOJ) under president George W. Bush’s administration, which handles official corruption prosecutions. It was tried, at Senator Stevens’ request, shortly before last November’s federal election, and his conviction may well have caused his defeat in a close contest.

Several times during the trial, Judge Emmet Sullivan, prompted by dynamic defence counsel, reprimanded prosecutors for withholding evidence, and sought to remedy any damage to the defence. However, in February, a new prosecution team selected to work on the case by President Barack Obama’s new attorney general, Eric Holder, discovered yet another failure by its predecessors to reveal evidence – evidence that would have undermined the credibility of the government’s key witness. At that point, Mr Holder, who had served in the Public Integrity Section decades ago, asked the court to void the conviction and announced that all charges against Senator Stevens would be dropped.

Judge Sullivan, formerly a successful trial lawyer, not only complied with the government’s request but, after excoriating the DOJ’s handling of the case, took the extraordinary step of appointing an independent lawyer to serve as special prosecutor to investigate whether six of the prosecutors should be held in criminal contempt of court for their repeated, and admitted, mistakes. Although the DOJ had already asked its Office of Professional Responsibility to investigate the misconduct, the judge’s loss of confidence in the integrity of the Public Integrity Section led him to insist on an independent investigation.

Why is this story relevant to the mainland and Taiwan? It illustrates one of the worst dangers of prosecution in every country. It also shows two of the safeguards that the adversarial system maintains against this danger. First, able defence lawyers had full access to their client, who was not detained pending trial, and they had the freedom and funds to conduct their own investigation and pursue aggressive courtroom challenges.

Second, an experienced judge had the independence and confidence to denounce the misconduct of a public integrity section that had failed to live up to its name.

The case also illustrates the importance of having a justice department chief courageous enough to repudiate his staff’s misconduct, replace the offending prosecutors, initiate an investigation and drop the charges.

Finally, what does this sad tale tell us about the relationship between politics and criminal justice? We should note that it was the Republican Bush administration that prosecuted Republican Senator Stevens. Perhaps it wanted to be seen to be suppressing corruption as the federal election approached.

For the Democratic Obama administration, the decision to repudiate the Stevens conviction may have been easier, even though it cast doubt on the loss of Senator Stevens’ seat. It reminded the public of the Bush administration’s well-known distortions of the law and of President Obama’s determination to restore America’s reputation for supporting human rights. In the present US political climate, reaffirmation of fairness, justice and the constitution is good politics.

An edited version of this text appears in Chinese in the China Times (Taiwan) for April 16, 2009. This article is also published in the South China Morning Post (Hong Kong) for April 18, 2009.