In its closing arguments in the federal indictment of a current United States Senator, the AUSA allegedly asked the jury to infer guilt from a statement the Senator made years ago.
During his closing argument, the prosecutor used a vague part of a single piece of evidence that was only admissible at trial because of an exception to the hearsay rule. The prosecutor reproduced 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 culpable knowledge of his alleged failure to comply with Senate reporting requirements. The prosecutor argued to the jury: who’s talking about spending a little jail time unless he did 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 correct to use an inference from an imprecise piece of evidence to convict someone beyond a reasonable doubt. Federal prosecutions must be carried out at a higher level.
In the case at hand, a case the prosecution knew would come under close scrutiny due to the defendant’s profile, the Court excluded other evidence from the trial due to prosecution misconduct. If we use the same lens to view the prosecution’s conduct that the jury is asked to use to view the evidence against Senator Stevens, where will that lead?
We have the opportunity to change course. We can reverse the trend toward criminalizing behavior. We can become an understanding society, a society that is not based on fear and hate.
But not.
