Sentencing guru Douglas Berman, observing the fallout of the botched Stevens prosecution, says it's culture:
I cannot help but also wonder and worry if we are now only seeing the tip of the prosecutorial misconduct iceberg. I want like to believe that ugly stories of federal prosecutorial misconduct are aberrations, but maybe I need to become even more cynical about whether the supposed "good guys" in the criminal justice system really are putting a commitment to justice ahead of a commitment to winning at all costs.
The recent trend in high-profile white-collar cases is not encouraging: Martha Stewart, Jeff Skilling and Ken Lay, Joe Nacchio, etc.
Prosecutors face enormous pressure to rack up scalps, and overbroad and vague criminal statutes--the go-to offenses that get pulled out in every weak case like mail and wire fraud--take away the easiest out: that no plausible crime was committed.
The result is too many weak cases premised on shaky legal theories and tenuous facts. Should it come as a surprise, then, when exculpatory evidence is lost or disclosures to the defense never get made?