Miles's blog

This is a bad time for U.S Attorneys.  Roger Clemens was acquitted yesterday following a prosecution which seemed to totter between incompetent and comical.  From the first mistrial to the ultimate not guilty verdicts, the entire case came across as a desperate attempt to vindicate the decision to elevate outrage at a seeming falsity in a congressional hearing to a federal offense.  Maybe Clemens lied and maybe he didn’t, but the zealousness with which the Justice Department brought this case has called into question the competence of those making decisions.  Certainly it appears from news reports (and, of course one can never be too sure of what one reads in descriptions of court proceedings) that the trial skills of the prosecutors was sorely lacking.  Their stunning ineptitude in creating a mistrial in the first attempt made me wonder what is wrong.

Of course, this is merely the latest gaffe on the part of the feds.  John Edwards was as good as acquitted.  In a trial which made you squirm to read about (I mean, really, was it necessary to hear that Elizabeth Edwards bared herself from the waist up to get her philandering husband’s attention?), the government seemed to feel disgracing Edwards was the path to conviction.  Sure he used the money to hide his extramarital affair, but a campaign violation? 

In both cases the government hitched their wagons to questionable star witnesses, who they believed (and I tend to believe too) but whom they could not find a way to make credible.  This is an age-old problem in prosecution, leading to the common closing argument theme of “conspiracies devised in hell do not have angels for witnesses,” but which the prosecutors in these cases failed to properly overcome.  Part of the problem, I think, was the type of crime.  It is one thing to use a slimeball like Brian McNamee or an opportunist like Andrew Young to convict a murderer, but it is quite another when all you are trying to vindicate is the necessity of keeping Congress away from lying witnesses (I mean, talk about coals to Newcastle) or to regulate the obscene funds used in political campaigns.  The jury was probably grateful that Bunny Mellon’s (you could not make up a name like that) money was spent to hide Rielle Hunter rather than on more obnoxious commercials during South Carolina football games.

These acquittals follow the hollow victory of the government over Barry Bonds, another situation where the Justice Department seemed to lose perspective.  Yeah, Barry Bonds is a lying, cheating, narcissist, whose place is baseball history will rank closer to Shoeless Joe Jackson than Babe Ruth.  But to use a federal grand jury’s time in order to ferret out his steroid use, then spend years to secure a minor conviction brought shame to the prosecution. 

However, nothing has brought as much shame and disgrace on the Justice Department than their handling of the Sen. Ted Stevens case from several years ago.  Stevens was the king of pork barrel spending and the man responsible for the bridge to nowhere.  I have no doubt he was a crook.  A jury thought so, too and convicted the man.  However, prior to sentencing the prosecution’s inexplicable failure to comply with discovery disclosures resulted in the case being dismissed.  Ethical violations were upheld against prosecutors, and negligence in oversight has been documented. 

These setbacks are shocking to me.  Throughout my career federal prosecutors have always been held in high regard for their trial skills, ethics, and legal knowledge.  While their arrogance, condescension, and lack of teamwork were barriers at times to strong state/federal cooperation, I always respected the U.S. Attorney’s office.  Working with seemingly unlimited resources and somewhat more favorable appellate rulings, the feds always seemed to garner convictions and long sentences.  To read day after day of their struggles makes me wonder what has changed.  I sincerely hope these verdicts are basically anomalies in areas of law outside normal grounds of prosecution.  I assume the feds still are convicting drug dealers, organized crime figures, purveyors of child porn, and terrorists.  I think perhaps they should stick to that, and leave sports and politics to the news media.