Source: Harper's Magazine
By Scott Horton
May 22, 2009
U.W. Clemon, formerly Alabama’s most senior federal judge, has written a scorching letter to Attorney General Eric Holder itemizing gross misconduct by federal prosecutors involved in the Siegelman case and demanding that the Justice Department open a full investigation into the matter. “The 2004 prosecution of Mr. Siegelman in the Northern District of Alabama was the most unfounded criminal case over which I presided in my entire judicial career,” he writes. “In my judgment, his prosecution was completely without legal merit; and it could not have been accomplished without the approval of the Department of Justice.” Clemon goes on to note that prosecutors engaged in judicial forum shopping, attempted to poison the jury pool, and filed and pressed bogus charges.
Holder has declined to release the full text of the letter, but it was quoted at length in an article by attorney-journalist Andrew Krieg at the Huffington Post. Clemon, who retired from the bench at the beginning of the year in order to return to the practice of law, issued the letter more than a year after handing down a decision in United States v. White, which I discussed in “Corruption in a U.S. Attorney’s Office.” Judge Clemon found “disturbing evidence” suggesting that prosecutors had attempted inappropriately to pressure a witness to give false evidence against Siegelman. Notwithstanding these startling conclusions, documented in a published court opinion,it appears that the Justice Department took no steps to investigate the allegations of serious misconduct.
In recent weeks, a panel of the Eleventh Circuit Court of Appeals affirmed five of seven counts of the Siegelman conviction in an opinion issued by three Republican judges. The case was referred back to a fourth Republican judge, Mark E. Fuller, for re-sentencing. The ruling prompted further cries for a reexamination of the case, as 75 former attorneys general from 40 states, both Democrats and Republicans, wrote Holder noting gross irregularities in the case and improper conduct by prosecutors who secured the conviction.
In the last week, a number of serious allegations have resurfaced concerning Judge Fuller, who came to preside over the criminal charges against Siegelman following a series of unusual maneuvers by federal prosecutors highlighted in Clemon’s letter to Holder. The Siegelman case came into Fuller’s court just as a series of hard-hitting accusations of judicial misconduct were filed with the Department of Justice’s Public Integrity Section (“PIN”). PIN, whose leaders are now themselves the targets of a special prosecutor’s investigation, led the prosecution of the Siegelman case. In the last week, Missouri attorney Paul Benton Weeks, whose affidavit making charges against Fuller was first secured and published here, has spoken publicly about the matter for the first time and has provided considerable further detail to his accusations. Weeks stated:
I just wish I had known about Siegelman’s case before his trial so they [defendants and attorneys] could have been able to understand the kind of animus Fuller has to have for Siegelman. I guarantee that Fuller blames Siegelman for my affidavit. If you look at how Fuller treated Siegelman, he clearly hates him.
What’s remarkable is that Siegelman has never been given a real chance to show why it’s not appropriate for Fuller to be his judge. The material I produced was never available. I think it was put into a separate file to keep it hidden.
Following the court of appeals decision to strike two of the seven counts on which Siegelman was convicted, the federal prosecutor on the case has suggested that he will seek to increase Siegelman’s sentence from seven to twenty years. Siegelman’s attorneys cite this as further evidence of vindictive motive on the part of the prosecutors. The Obama Justice Department has not yet announced a replacement of the prosecutors involved, and the Bush Justice Department’s team remains in control of the case. Attorney General Holder’s office advised the Huffington Post that notwithstanding the long-standing allegations of prosecutorial misconduct, now amplified by a large group of attorneys general and the state’s former senior federal judge, the Justice Department had no investigation of the accusations underway.
Thursday, May 28, 2009
Tuesday, May 26, 2009
Charles Walker celebrates moral victory,
vows fight
Source: www.wrdw.com
May 22 2009
AUGUSTA,Ga---The Charles Walker camp is celebrating a moral victory. The judge who tried the case is taking a step back on Walker's latest appeal.
"There's an uproar that's coming like nobody has ever seen," said Charles Champ Walker, Jr. "But we knew this from the start."
Charles Walker Jr is talking tough as the judge who sent his father to prison for 10 years backs out of the appeals process.
"This proves beyond a shadow of a doubt that there has been political tampering from day one," said Champ Walker.
Judge Dudley Bowen is recusing himself as questions surface dating back 30 years. In 1979, Walker actively opposed Judge Bowen's nomination because the judge was reported to be a member of several private white-only clubs.
"There's no ifs ands or buts about it," said Champ. "They went after him because he was powerful, and they wanted to stop him."
Champ points to an Augusta Chronicle article that says objections to Bowen's membership in five all-white clubs led Bowen to resign from those clubs.
"No reasonable person in their right mind would say that judge Bowen should have sat down as judge and presided over this trial knowing that my father went after him," said Champ.
Judge Bowen is not admitting personal bias in the case. But he is stepping back because his impartiality might be questioned.
"Judge Dudley Bowen recused himself from this hearing because he knew without any equivocation that my father went after him and his nomination in 1979," said Champ. "He should have recused himself from the trial all together. The law says so. He knows it, and the truth will be told."
Judge Bowen signed the order form May 18, 2009. The case has been refereed to the Chief Judge of the Southern District of Georgia. Meanwhile, Walker is filing an ineffective assistant of counsel claim. The whole point is to get his case back in court.
May 22 2009
AUGUSTA,Ga---The Charles Walker camp is celebrating a moral victory. The judge who tried the case is taking a step back on Walker's latest appeal.
"There's an uproar that's coming like nobody has ever seen," said Charles Champ Walker, Jr. "But we knew this from the start."
Charles Walker Jr is talking tough as the judge who sent his father to prison for 10 years backs out of the appeals process.
"This proves beyond a shadow of a doubt that there has been political tampering from day one," said Champ Walker.
Judge Dudley Bowen is recusing himself as questions surface dating back 30 years. In 1979, Walker actively opposed Judge Bowen's nomination because the judge was reported to be a member of several private white-only clubs.
"There's no ifs ands or buts about it," said Champ. "They went after him because he was powerful, and they wanted to stop him."
Champ points to an Augusta Chronicle article that says objections to Bowen's membership in five all-white clubs led Bowen to resign from those clubs.
"No reasonable person in their right mind would say that judge Bowen should have sat down as judge and presided over this trial knowing that my father went after him," said Champ.
Judge Bowen is not admitting personal bias in the case. But he is stepping back because his impartiality might be questioned.
"Judge Dudley Bowen recused himself from this hearing because he knew without any equivocation that my father went after him and his nomination in 1979," said Champ. "He should have recused himself from the trial all together. The law says so. He knows it, and the truth will be told."
Judge Bowen signed the order form May 18, 2009. The case has been refereed to the Chief Judge of the Southern District of Georgia. Meanwhile, Walker is filing an ineffective assistant of counsel claim. The whole point is to get his case back in court.
Monday, May 18, 2009
Wecht ruling could end his trial:
Prosecution loses key decision on search warrants
Source: Pittsburgh Post-Gazette
By Paula Reed Ward and Sadie Gurman
Friday, May 15, 2009
Nearly 3 1/2 years after it began, the government's criminal prosecution of former Allegheny County Coroner Dr. Cyril H. Wecht was dealt a crippling blow. U.S. District Judge Sean J. McLaughlin yesterday threw out crucial evidence in connection with the fraud and theft case the government has been pursuing against Dr. Wecht. Prosecutors claim Dr. Wecht used his public office for private gain.
"Now is the time to end this and let this man get on with his life," said defense attorney Jerry McDevitt.
The U.S. attorney's office must decide whether to appeal.
Margaret Philbin, a spokeswoman for the U.S. attorney's office, said the opinion was being reviewed to determine the appropriate course of action.
"We haven't backed down from the fight from day one and we won't now," Mr. McDevitt said. "They have a decision to make. I hope it's not one that is born out of a desire to retaliate."
No matter that decision, an elated Dr. Wecht said he felt vindicated by the court's ruling.
"I feel a great sense of relief," he said. "It has been a tremendous ordeal. I would not wish this on my worst enemy."
In a 55-page opinion issued late yesterday, Judge McLaughlin dismissed crucial evidence seized during the execution of two search warrants in April 2005.
Judge McLaughlin found that a warrant served at Dr. Wecht's private pathology offices on Penn Avenue, and another used to seize a laptop used by his administrative assistant, failed to follow the Fourth Amendment's requirement that the warrants be specific.
The warrant that was served on Dr. Wecht's business offices called for the seizure of approximately 20 boxes containing private autopsy files. But Judge McLaughlin found that the warrant provided no meaningful guidance to agents executing it to distinguish between valuable evidence and otherwise unimportant files.
Further, he added, that the government had sufficient information that could have allowed for more particularity in the warrant, but didn't include it.
Brad Orsini, the FBI agent leading the investigation, did not incorporate his affidavit of probable cause into the warrants or attach it, but instead kept it under seal, according to the judge.
"The warrant thus facially authorized government agents to rummage through a substantial volume of the defendant's work product and decide for themselves what to take."
Regarding the warrant for the laptop, the judge found that it was too broad and did not support what he called the "en masse" seizure of information and data it contained.
Judge McLaughlin was appointed to the case in October after the 3rd U.S. Circuit Court of Appeals said it would benefit from a fresh set of eyes.
In yesterday's opinion, the judge noted the intense public scrutiny given to the case, as well as what he called the "emotionally charged atmosphere," that led to the case taking on "a life of its own."
Judge McLaughlin, who is based in Erie, wrote that he recognizes that "suppression is a harsh remedy," and said that his decision was not undertaken lightly.
Instead, he concluded that his rulings were grounded on "well-established Fourth Amendment principles which serve as a bulwark against unwarranted governmental intrusion into the private affairs of every citizen, not just this defendant.
"The importance of these principles transcends this particular case."
Dr. Wecht was indicted in January 2006 on 84 counts in which the government claimed he used his public office for private gain. On the eve of trial nearly two years later, the government dismissed 43 of those counts.
The case was tried before U.S. District Judge Arthur J. Schwab over several weeks in early 2008 before ending with a hung jury in April of that year.
The government immediately announced it would retry Dr. Wecht, but then the case went to the 3rd Circuit Court on a number of appeals.
Late last summer, the appeals court sent the case back to the district court, but ordered that a new judge be appointed to hear it.
In January, Judge McLaughlin held an entire day of oral arguments, which he then followed with additional arguments in March. In the meantime, the government had further pared the case down to 14 counts, including mail and wire fraud, as well as theft from a program receiving federal funds.
While U.S. Attorney Mary Beth Buchanan will make a recommendation whether to appeal, the final say comes from the U.S. solicitor general.
"It's always the case, having nothing to do with the change in the administration, that a government appeal from an adverse decision has to be approved by the Solicitor General," said Harry Litman, former U.S. attorney in Pittsburgh.
The Obama administration asked months ago that all sitting U.S. attorneys remain in place, and Ms. Buchanan has done that. Sen. Robert P. Casey, D-Pa., earlier this week posted an application for potential U.S. attorney candidates on his Web site. Those applications are due June 5.
No matter what, it is extremely unlikely that a new U.S. attorney would be in place before time elapses for an appeal in this case to be filed.
Dick Thornburgh, a former U.S. attorney general who was part of Dr. Wecht's defense team, has said all along that the case never should have been prosecuted.
"It is reassuring to finally find a judge who recognized how flimsy these charges were," he said. "Perhaps Dr. Wecht and his family can now get on with their lives free of the unjustified cloud which has hung over them for far too long."
Dr. Wecht would not say how much money the case has cost him.
"It has wiped me out. If I remain active for 20 more years, there's no way I could begin to recoup what it has cost me financially," he said.
He also added that the public corruption charges carry a "stigma that no one wants." While he said that there is a lot that must be undone, he believes the community supports him.
For his part, Mr. McDevitt said that the case has also damaged the U.S. attorney's office.
"It's not a pretty picture when you stand back and look at the prosecution of Cyril Wecht," he said. "It is a black spot on this district and I hope this ends it."
Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620. Sadie Gurman can be reached at sgurman@post-gazette.com or 412-263-1878.
First published on May 15, 2009 at 12:00 am
By Paula Reed Ward and Sadie Gurman
Friday, May 15, 2009
Nearly 3 1/2 years after it began, the government's criminal prosecution of former Allegheny County Coroner Dr. Cyril H. Wecht was dealt a crippling blow. U.S. District Judge Sean J. McLaughlin yesterday threw out crucial evidence in connection with the fraud and theft case the government has been pursuing against Dr. Wecht. Prosecutors claim Dr. Wecht used his public office for private gain.
"Now is the time to end this and let this man get on with his life," said defense attorney Jerry McDevitt.
The U.S. attorney's office must decide whether to appeal.
Margaret Philbin, a spokeswoman for the U.S. attorney's office, said the opinion was being reviewed to determine the appropriate course of action.
"We haven't backed down from the fight from day one and we won't now," Mr. McDevitt said. "They have a decision to make. I hope it's not one that is born out of a desire to retaliate."
No matter that decision, an elated Dr. Wecht said he felt vindicated by the court's ruling.
"I feel a great sense of relief," he said. "It has been a tremendous ordeal. I would not wish this on my worst enemy."
In a 55-page opinion issued late yesterday, Judge McLaughlin dismissed crucial evidence seized during the execution of two search warrants in April 2005.
Judge McLaughlin found that a warrant served at Dr. Wecht's private pathology offices on Penn Avenue, and another used to seize a laptop used by his administrative assistant, failed to follow the Fourth Amendment's requirement that the warrants be specific.
The warrant that was served on Dr. Wecht's business offices called for the seizure of approximately 20 boxes containing private autopsy files. But Judge McLaughlin found that the warrant provided no meaningful guidance to agents executing it to distinguish between valuable evidence and otherwise unimportant files.
Further, he added, that the government had sufficient information that could have allowed for more particularity in the warrant, but didn't include it.
Brad Orsini, the FBI agent leading the investigation, did not incorporate his affidavit of probable cause into the warrants or attach it, but instead kept it under seal, according to the judge.
"The warrant thus facially authorized government agents to rummage through a substantial volume of the defendant's work product and decide for themselves what to take."
Regarding the warrant for the laptop, the judge found that it was too broad and did not support what he called the "en masse" seizure of information and data it contained.
Judge McLaughlin was appointed to the case in October after the 3rd U.S. Circuit Court of Appeals said it would benefit from a fresh set of eyes.
In yesterday's opinion, the judge noted the intense public scrutiny given to the case, as well as what he called the "emotionally charged atmosphere," that led to the case taking on "a life of its own."
Judge McLaughlin, who is based in Erie, wrote that he recognizes that "suppression is a harsh remedy," and said that his decision was not undertaken lightly.
Instead, he concluded that his rulings were grounded on "well-established Fourth Amendment principles which serve as a bulwark against unwarranted governmental intrusion into the private affairs of every citizen, not just this defendant.
"The importance of these principles transcends this particular case."
Dr. Wecht was indicted in January 2006 on 84 counts in which the government claimed he used his public office for private gain. On the eve of trial nearly two years later, the government dismissed 43 of those counts.
The case was tried before U.S. District Judge Arthur J. Schwab over several weeks in early 2008 before ending with a hung jury in April of that year.
The government immediately announced it would retry Dr. Wecht, but then the case went to the 3rd Circuit Court on a number of appeals.
Late last summer, the appeals court sent the case back to the district court, but ordered that a new judge be appointed to hear it.
In January, Judge McLaughlin held an entire day of oral arguments, which he then followed with additional arguments in March. In the meantime, the government had further pared the case down to 14 counts, including mail and wire fraud, as well as theft from a program receiving federal funds.
While U.S. Attorney Mary Beth Buchanan will make a recommendation whether to appeal, the final say comes from the U.S. solicitor general.
"It's always the case, having nothing to do with the change in the administration, that a government appeal from an adverse decision has to be approved by the Solicitor General," said Harry Litman, former U.S. attorney in Pittsburgh.
The Obama administration asked months ago that all sitting U.S. attorneys remain in place, and Ms. Buchanan has done that. Sen. Robert P. Casey, D-Pa., earlier this week posted an application for potential U.S. attorney candidates on his Web site. Those applications are due June 5.
No matter what, it is extremely unlikely that a new U.S. attorney would be in place before time elapses for an appeal in this case to be filed.
Dick Thornburgh, a former U.S. attorney general who was part of Dr. Wecht's defense team, has said all along that the case never should have been prosecuted.
"It is reassuring to finally find a judge who recognized how flimsy these charges were," he said. "Perhaps Dr. Wecht and his family can now get on with their lives free of the unjustified cloud which has hung over them for far too long."
Dr. Wecht would not say how much money the case has cost him.
"It has wiped me out. If I remain active for 20 more years, there's no way I could begin to recoup what it has cost me financially," he said.
He also added that the public corruption charges carry a "stigma that no one wants." While he said that there is a lot that must be undone, he believes the community supports him.
For his part, Mr. McDevitt said that the case has also damaged the U.S. attorney's office.
"It's not a pretty picture when you stand back and look at the prosecution of Cyril Wecht," he said. "It is a black spot on this district and I hope this ends it."
Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620. Sadie Gurman can be reached at sgurman@post-gazette.com or 412-263-1878.
First published on May 15, 2009 at 12:00 am
Thursday, May 14, 2009
Federal prosecutor admits mistake, begs for leniency
Source: www.boston.com
By Jonathan Saltzman, Globe Staff
May 12, 2009
A federal prosecutor today acknowledged that she withheld evidence that could have helped clear a defendant in a gun case but said it was an inadvertent mistake and implored the chief judge of the US District Court in Massachusetts not to impose sanctions that could derail her career.
"It is my mistake. It rests on my shoulders,'' a composed Assistant US Attorney Suzanne Sullivan said during an extraordinary hearing in Boston that lasted more than two hours. "I also ask the court to give me the opportunity to rebuild my reputation.''
But Judge Mark L. Wolf said he was considering several sanctions because he was so appalled by Sullivan's lapse and by what he characterized as a pattern of prosecutors in the US attorney's office withholding evidence. The sanctions ranged from fining her personally -- something prosecutors said would be a first by a federal judge in the country for a lapse of Sullivan's type -- to an order that she and perhaps all 90 prosecutors in the office undergo additional training about the constitutional duty to share such evidence.
"It's unpardonable, and if I don't find it deliberate, I find it's at least ignorance and reckless disregard,'' Wolf said at a hearing during which he criticized both the US attorney's office and the Justice Department's Office of Professional Responsibility.
Wolf wrote US Attorney General Eric H. Holder Jr. last month to ask him to crack down on prosecutors who fail to disclose information that could clear defendants and repeated his past assessment that the Boston office has a "dismal history of intentional and inadvertent violations.'' Wolf wrote that similar appeals he made to Holder's predecessors in recent years achieved little.
Joseph F. Savage Jr., a private defense lawyer in Boston and former federal prosecutor who represented Sullivan at the hearing, repeatedly gestured toward his client and told Wolf that a sanction represented "annihilation'' of her career.
Such a sanction, said legal specialists, would be a blot on her record with the Massachusetts Board of Bar Overseers and could expose her to further disciplinary action.
Savage also said that Sullivan was a well-respected, diligent prosecutor who should not be blamed for earlier lapses by the office. She worked as a state prosecutor in the Plymouth District Attorney's office for 11 years before she joined the US attorney's office in January 2006.
Wolf took the arguments under advisement and said he will issue a written decision later.
Sullivan failed to disclose that a Boston police officer's testimony at a pretrial hearing contradicted what the office had repeatedly told the prosecutor beforehand. The defendant was Darwin E. Jones, a Mattapan man who was arrested in July 2007 in a Boston gun case.
The truth only came to light, according to Wolf, when the judge reviewed Sullivan's notes of her interviews of the police officer, Rance Cooley.
After Wolf chastised Sullivan in a sharply worded memorandum in January, prosecutors dismissed gun charges against Jones, according to his lawyer, John F. Palmer of Boston. Palmer said recently that he and prosecutors have reached a tentative plea deal on drug charges.
By Jonathan Saltzman, Globe Staff
May 12, 2009
A federal prosecutor today acknowledged that she withheld evidence that could have helped clear a defendant in a gun case but said it was an inadvertent mistake and implored the chief judge of the US District Court in Massachusetts not to impose sanctions that could derail her career.
"It is my mistake. It rests on my shoulders,'' a composed Assistant US Attorney Suzanne Sullivan said during an extraordinary hearing in Boston that lasted more than two hours. "I also ask the court to give me the opportunity to rebuild my reputation.''
But Judge Mark L. Wolf said he was considering several sanctions because he was so appalled by Sullivan's lapse and by what he characterized as a pattern of prosecutors in the US attorney's office withholding evidence. The sanctions ranged from fining her personally -- something prosecutors said would be a first by a federal judge in the country for a lapse of Sullivan's type -- to an order that she and perhaps all 90 prosecutors in the office undergo additional training about the constitutional duty to share such evidence.
"It's unpardonable, and if I don't find it deliberate, I find it's at least ignorance and reckless disregard,'' Wolf said at a hearing during which he criticized both the US attorney's office and the Justice Department's Office of Professional Responsibility.
Wolf wrote US Attorney General Eric H. Holder Jr. last month to ask him to crack down on prosecutors who fail to disclose information that could clear defendants and repeated his past assessment that the Boston office has a "dismal history of intentional and inadvertent violations.'' Wolf wrote that similar appeals he made to Holder's predecessors in recent years achieved little.
Joseph F. Savage Jr., a private defense lawyer in Boston and former federal prosecutor who represented Sullivan at the hearing, repeatedly gestured toward his client and told Wolf that a sanction represented "annihilation'' of her career.
Such a sanction, said legal specialists, would be a blot on her record with the Massachusetts Board of Bar Overseers and could expose her to further disciplinary action.
Savage also said that Sullivan was a well-respected, diligent prosecutor who should not be blamed for earlier lapses by the office. She worked as a state prosecutor in the Plymouth District Attorney's office for 11 years before she joined the US attorney's office in January 2006.
Wolf took the arguments under advisement and said he will issue a written decision later.
Sullivan failed to disclose that a Boston police officer's testimony at a pretrial hearing contradicted what the office had repeatedly told the prosecutor beforehand. The defendant was Darwin E. Jones, a Mattapan man who was arrested in July 2007 in a Boston gun case.
The truth only came to light, according to Wolf, when the judge reviewed Sullivan's notes of her interviews of the police officer, Rance Cooley.
After Wolf chastised Sullivan in a sharply worded memorandum in January, prosecutors dismissed gun charges against Jones, according to his lawyer, John F. Palmer of Boston. Palmer said recently that he and prosecutors have reached a tentative plea deal on drug charges.
Tuesday, May 12, 2009
Letter From Law Professor to Attorney General Holder
Following is a letter from Bennett L. Gershman, James D. Hopkins Professor of Law in White Plains, New York to United States Attorney General Eric Holder.
May 1, 2009
Honorable Eric H. Holder, Jr.
United States Attorney General
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
Re: United States of America v. Don E. Siegelman, et al.
In the United States Court of Appeals for the Eleventh Circuit No. 07-13163-B
Dear Attorney General Holder:
I am a former prosecutor in New York State. I served in the office of Manhattan District Attorney Frank S. Hogan, and thereafter prosecuted official corruption cases as an Assistant State Attorney General. I teach and lecture on criminal justice matters, and have published two treatises, Prosecutorial Misconduct (2nd ed. Thomson-West) and Trial Error and Misconduct (2nd ed. Lexis Law Publishing). I am taking the liberty of writing to you in support of applications you have already received to dismiss the charges against Don Siegelman.
I have studied, commented, and written for many years on the conduct and misconduct of prosecutors, both federal and state. I have testified before Congress and in courtrooms on the legal and ethical responsibility of prosecutors, lectured in training programs for prosecutors, and been quoted on by the media. I have followed the Siegelman prosecution for several years, and I have lectured and written about it. With this background I can say that among the thousands of cases of prosecutorial misconduct that I have studied over the years, the Siegelman case stands out starkly. Indeed, I have never encountered another prosecution in which it appears so clearly that the prosecutors were zealously bent on pursuing an individual, rather than on a crime that needed to be prosecuted. As an example of a bad faith prosecution, the Siegelman case may be without parallel.
I would like to identify several disturbing irregularities in this case that appear to dwarf irregularities in other recent federal prosecutions that have received attention not just in the media but from the Department of Justice.
When I was a prosecutor many years ago, I regarded the Justice Department as a ministry of justice, an office that enjoyed an outstanding reputation for independence, impartiality, and the fair-minded pursuit of justice. Over the past eight years, that reputation has been severely tarnished, and the quality of justice strained. And there is no better example of the corrosive effect on the reputation of the Justice Department, in my opinion, than the prosecution of Don Siegelman. I am reminded of a quote from one of your predecessors, Justice Robert H. Jackson, in a speech more than seventy years ago to the annual conference of United States Attorneys. In discussing the difficulties and challenges of federal prosecution, Justice Jackson identified “the most dangerous power of the prosecutor” to be the power to pick defendants rather than choose appropriate cases that needed to be prosecuted. I can think of no better illustration of the abuse of the prosecutorial function than the prosecution of Don Siegelman. Terminating this prosecution by dismissal of all charges would properly serve the ends of justice and fairness.
Thank you in advance for your consideration
Most respectfully,
Bennett L. Gershman
May 1, 2009
Honorable Eric H. Holder, Jr.
United States Attorney General
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
Re: United States of America v. Don E. Siegelman, et al.
In the United States Court of Appeals for the Eleventh Circuit No. 07-13163-B
Dear Attorney General Holder:
I am a former prosecutor in New York State. I served in the office of Manhattan District Attorney Frank S. Hogan, and thereafter prosecuted official corruption cases as an Assistant State Attorney General. I teach and lecture on criminal justice matters, and have published two treatises, Prosecutorial Misconduct (2nd ed. Thomson-West) and Trial Error and Misconduct (2nd ed. Lexis Law Publishing). I am taking the liberty of writing to you in support of applications you have already received to dismiss the charges against Don Siegelman.
I have studied, commented, and written for many years on the conduct and misconduct of prosecutors, both federal and state. I have testified before Congress and in courtrooms on the legal and ethical responsibility of prosecutors, lectured in training programs for prosecutors, and been quoted on by the media. I have followed the Siegelman prosecution for several years, and I have lectured and written about it. With this background I can say that among the thousands of cases of prosecutorial misconduct that I have studied over the years, the Siegelman case stands out starkly. Indeed, I have never encountered another prosecution in which it appears so clearly that the prosecutors were zealously bent on pursuing an individual, rather than on a crime that needed to be prosecuted. As an example of a bad faith prosecution, the Siegelman case may be without parallel.
I would like to identify several disturbing irregularities in this case that appear to dwarf irregularities in other recent federal prosecutions that have received attention not just in the media but from the Department of Justice.
- Despite doubts expressed by line prosecutors about evidentiary weaknesses in the Siegelman case, it appears that the investigation involved an unusually long and far-ranging process of cycling and recycling multiple theories and allegations for over five years before an indictment was brought, dismissed, and another brought.
- A witness who testified under oath before the House Judiciary Committee, Jill Simpson, stated that Rob Riley, an acquaintance who is the son of Alabama Governor Bob Riley, told her that his father and Bill Canary, a prominent Republican operative in Alabama with close ties to the White House, had spoken to Karl Rove about mobilizing additional Justice Department resources to bring a second indictment against Mr. Siegelman after the first federal indictment had been dismissed for lack of sufficient evidence. There appears to be considerable independent evidence to corroborate Ms. Simpson’s allegations.
- It appears that pressure was brought from both the Justice Department and the White House to find prosecutable evidence against Mr. Siegelman. As Douglas Jones, a former and highly respected United States Attorney in Alabama, stated before the House Judiciary Committee: “It appeared that agents were not investigating any allegations of a crime, but were fishing around for anything they could find against an individual.”
- The key witness for the prosecution, Nick Bailey, appears to have been interviewed more than 70 times in an effort to get him to adjust his testimony to mesh with the theory of the prosecution. It has also been alleged that records of these “coaching” sessions, which also included threats to prosecute Mr. Bailey’s brother, were not disclosed to the defense, in violation of discovery requirements. There is also some reason to believe that Mr. Bailey’s testimony before the grand jury was manipulated to accord with the prosecutor’s theory of the case.
- The United States Attorney for the indicting district, Leura Canary, the wife of Bill Canary, had recused herself from the Siegelman prosecution because of the obvious conflict of interest. However, it appears from published reports that Mrs. Canary was nonetheless heavily involved in the investigation and prosecution of the case.
- The strained theory of bribery relied on by the prosecution appears to be unprecedented. The payment by co-defendant Richard Scrushy was neither to Mr. Siegelman nor to his campaign. Mr. Siegelman personally received nothing. Mr. Scrushy previously had been appointed to the exact same medical board by Republican governors. Indeed, this may be the first bribery prosecution in U.S. history predicated on an issue-advocacy campaign contribution.
- Allegations of misconduct by jurors, particularly a series of juror emails, precipitated an investigation by the Justice Department, as well as an ex parte communication between the government and the trial judge while a defense motion on this precise issue was pending before the judge.
- There appears to have been a double standard used by the Justice Department in the prosecution of Mr. Siegelman. Reports from a key witness indicated that payments and free campaign items were made to Republican politicians in Alabama exactly like those to Mr. Siegelman, but none of these allegations was ever even investigated.
- It appears that several of the prosecutors who were cited for misconduct by Federal District Judge Emmet Sullivan in the prosecution of former Senator Ted Stevens were also involved in the Siegelman prosecution.
When I was a prosecutor many years ago, I regarded the Justice Department as a ministry of justice, an office that enjoyed an outstanding reputation for independence, impartiality, and the fair-minded pursuit of justice. Over the past eight years, that reputation has been severely tarnished, and the quality of justice strained. And there is no better example of the corrosive effect on the reputation of the Justice Department, in my opinion, than the prosecution of Don Siegelman. I am reminded of a quote from one of your predecessors, Justice Robert H. Jackson, in a speech more than seventy years ago to the annual conference of United States Attorneys. In discussing the difficulties and challenges of federal prosecution, Justice Jackson identified “the most dangerous power of the prosecutor” to be the power to pick defendants rather than choose appropriate cases that needed to be prosecuted. I can think of no better illustration of the abuse of the prosecutorial function than the prosecution of Don Siegelman. Terminating this prosecution by dismissal of all charges would properly serve the ends of justice and fairness.
Thank you in advance for your consideration
Most respectfully,
Bennett L. Gershman
Saturday, May 9, 2009
Elite Unit’s Problems Pose Test for Attorney General
Source: New York Times, www.nytimes.com
By Charlie Savage
May 8, 2009
WASHINGTON — A week after shutting down the criminal case against former Senator Ted Stevens of Alaska because it had been botched by prosecutors, Attorney General Eric H. Holder Jr. delivered a pep talk to Justice Department lawyers.
“I’m here to tell you personally that I’ve got your back,” Mr. Holder told prosecutors in the department’s Public Integrity Section, an elite unit charged with pursuing corruption charges against public officials. He called them “among the finest lawyers in the entire government,” promised them more resources and vowed not to back off from “prosecuting the tough cases when warranted because of the criticism we’re getting right now.”
Despite Mr. Holder’s gesture of reassurance last month, recalled by someone present, the public integrity unit, once the pride of the Justice Department, is badly in need of rehabilitation, according to current and former officials.
Mr. Holder’s ambitions for the section, where he worked two decades ago, may well be a test of how much he can change a department that was at the center of some of the Bush administration’s biggest controversies, including its legal opinions approving harsh interrogations, the politicization of civil-service hiring and the firing of United States attorneys.
“Holder faces calls for more autonomy and freedom from political influence on one hand — consider the torture memo and the U.S. attorney firings — and demands for more supervision and training on the other — consider the public integrity unit,” said Daniel Richman, a Columbia University law professor and former federal prosecutor.
The Public Integrity Section has scored some successes in recent years, most notably a string of convictions connected to the Jack Abramoff lobbying scandal, including that of Bob Ney, a Republican former congressman from Ohio.
Less visibly, though, a decision by the Bush administration eight years ago to shake up the section has had some troubling consequences, like frequent leadership changes and the loss of experienced prosecutors, according to interviews with more than a dozen current and former officials. Against that backdrop, court records show that the Stevens case has not been the only one in which the unit may have failed to disclose evidence favorable to the defense, as required by law.
“What you are having is a kind of organizational failure,” said David A. Sklansky, a Berkeley law professor and former federal prosecutor.
Mr. Sklansky said the pressure to bring cases coupled with the erosion of “the institutional memory of the unit and the availability of prosecutors with seasoned, detached judgment” had created an ideal environment for mistakes like the disclosure violations.
In 2001, Michael Chertoff, the new assistant attorney general for the criminal division, decided to replace the Public Integrity Section’s longtime chief, Lee Radek. “The thought was that fresh energy might be useful,” Mr. Chertoff said in an interview.
Under Mr. Radek, some law-enforcement officials had complained that the section moved too slowly and declined to prosecute many cases. Congressional Republicans also criticized Mr. Radek after he recommended against appointing an independent counsel to look into accusations of illegal campaign fund-raising by Vice President Al Gore.
While Mr. Chertoff said his decision to change the section’s leadership had nothing to do with politics, several former career prosecutors said Mr. Radek’s removal was interpreted internally as retribution for a politically unpopular decision. And, adding to prosecutors’ concerns about maintaining independence from political appointees, Mr. Chertoff brought in as new section leaders two outsiders who had worked for him when he was a United States attorney in New Jersey.
Moreover, the pipeline of high-profile corruption investigations began to dry up, as the Federal Bureau of Investigation began reassigning agents to counterterrorism work after the Sept. 11, 2001, attacks. But with the section’s leaders wary of passing on potential cases, prosecutors took on lower-profile infractions. The section’s annual reports from that period recount numerous convictions of low-ranking officials for relatively small violations, like inflating overtime.
“All kinds of little piddly stuff was just kind of worked to death, and that kind of demoralized people,” said one former prosecutor with the public integrity unit. “The flip side of that was that we were probably overly aggressive about things that weren’t crimes of the century. You could argue that the Stevens case is an example of that. It was a forms case — a guy got his financial disclosure forms wrong.”
As discontent over the section’s new direction mounted, turnover soared to an unusually high level, former officials said. Comparable rates from previous eras are unavailable, but records show that only a quarter of the prosecutors working at the section when former President George W. Bush left office were there when he arrived.
Significant departures included the section’s deputy chief, Stuart Goldberg, described as a cautious and stringent quality-control enforcer. His replacement, Brenda K. Morris, led the Stevens trial. While she had worked there since the 1990s, she had not headed its highest-profile cases, and a case she led in 2003 ended in an acquittal and a settlement that cost taxpayers $1.34 million.
There were other warnings of problems in the section before the Stevens case. For example, in the case of David Safavian, a Bush official charged in the Abramoff scandal, a judge wrote in December 2008 that documents in prosecutors’ possession, brought to light by a recent book, “should be disclosed to the defendant immediately because they constitute favorable or potentially favorable evidence.”
The revelation implied that prosecutors might have improperly failed to disclose that material at Mr. Safavian’s 2006 trial, in which he was convicted. But the order attracted little attention because he was already scheduled for retrial on other charges. (He was convicted again.)
Mr. Holder has signaled that such disclosure lapses may be a systematic problem. Last month, he ordered all prosecutors to undergo retraining and established a working group to review where they needed additional resources to fulfill their obligations to provide material to the defense.
He has also made several other moves, including changing the leadership of the department’s internal ethics unit, the Office of Professional Responsibility, which the judge in the Stevens case criticized for moving slowly.
For now, the Public Integrity Section’s chief, William M. Welch II, and its deputy, Ms. Morris, are under a contempt order and are being investigated for their conduct in the Stevens case. Mr. Holder’s challenge, former officials say, is to maintain the morale of his old section as it continues to handle cases and he evaluates how to rebuild it.
In his retraining announcement, Mr. Holder hinted at the scope of that larger task.
“The actions we are taking today are part of an ongoing process to ensure justice is served in every case the department brings,” he said. “We will continue to review how cases are managed before, during and after charges are filed, and where there is room for improvement, we will make additional changes.”
By Charlie Savage
May 8, 2009
WASHINGTON — A week after shutting down the criminal case against former Senator Ted Stevens of Alaska because it had been botched by prosecutors, Attorney General Eric H. Holder Jr. delivered a pep talk to Justice Department lawyers.
“I’m here to tell you personally that I’ve got your back,” Mr. Holder told prosecutors in the department’s Public Integrity Section, an elite unit charged with pursuing corruption charges against public officials. He called them “among the finest lawyers in the entire government,” promised them more resources and vowed not to back off from “prosecuting the tough cases when warranted because of the criticism we’re getting right now.”
Despite Mr. Holder’s gesture of reassurance last month, recalled by someone present, the public integrity unit, once the pride of the Justice Department, is badly in need of rehabilitation, according to current and former officials.
Mr. Holder’s ambitions for the section, where he worked two decades ago, may well be a test of how much he can change a department that was at the center of some of the Bush administration’s biggest controversies, including its legal opinions approving harsh interrogations, the politicization of civil-service hiring and the firing of United States attorneys.
“Holder faces calls for more autonomy and freedom from political influence on one hand — consider the torture memo and the U.S. attorney firings — and demands for more supervision and training on the other — consider the public integrity unit,” said Daniel Richman, a Columbia University law professor and former federal prosecutor.
The Public Integrity Section has scored some successes in recent years, most notably a string of convictions connected to the Jack Abramoff lobbying scandal, including that of Bob Ney, a Republican former congressman from Ohio.
Less visibly, though, a decision by the Bush administration eight years ago to shake up the section has had some troubling consequences, like frequent leadership changes and the loss of experienced prosecutors, according to interviews with more than a dozen current and former officials. Against that backdrop, court records show that the Stevens case has not been the only one in which the unit may have failed to disclose evidence favorable to the defense, as required by law.
“What you are having is a kind of organizational failure,” said David A. Sklansky, a Berkeley law professor and former federal prosecutor.
Mr. Sklansky said the pressure to bring cases coupled with the erosion of “the institutional memory of the unit and the availability of prosecutors with seasoned, detached judgment” had created an ideal environment for mistakes like the disclosure violations.
In 2001, Michael Chertoff, the new assistant attorney general for the criminal division, decided to replace the Public Integrity Section’s longtime chief, Lee Radek. “The thought was that fresh energy might be useful,” Mr. Chertoff said in an interview.
Under Mr. Radek, some law-enforcement officials had complained that the section moved too slowly and declined to prosecute many cases. Congressional Republicans also criticized Mr. Radek after he recommended against appointing an independent counsel to look into accusations of illegal campaign fund-raising by Vice President Al Gore.
While Mr. Chertoff said his decision to change the section’s leadership had nothing to do with politics, several former career prosecutors said Mr. Radek’s removal was interpreted internally as retribution for a politically unpopular decision. And, adding to prosecutors’ concerns about maintaining independence from political appointees, Mr. Chertoff brought in as new section leaders two outsiders who had worked for him when he was a United States attorney in New Jersey.
Moreover, the pipeline of high-profile corruption investigations began to dry up, as the Federal Bureau of Investigation began reassigning agents to counterterrorism work after the Sept. 11, 2001, attacks. But with the section’s leaders wary of passing on potential cases, prosecutors took on lower-profile infractions. The section’s annual reports from that period recount numerous convictions of low-ranking officials for relatively small violations, like inflating overtime.
“All kinds of little piddly stuff was just kind of worked to death, and that kind of demoralized people,” said one former prosecutor with the public integrity unit. “The flip side of that was that we were probably overly aggressive about things that weren’t crimes of the century. You could argue that the Stevens case is an example of that. It was a forms case — a guy got his financial disclosure forms wrong.”
As discontent over the section’s new direction mounted, turnover soared to an unusually high level, former officials said. Comparable rates from previous eras are unavailable, but records show that only a quarter of the prosecutors working at the section when former President George W. Bush left office were there when he arrived.
Significant departures included the section’s deputy chief, Stuart Goldberg, described as a cautious and stringent quality-control enforcer. His replacement, Brenda K. Morris, led the Stevens trial. While she had worked there since the 1990s, she had not headed its highest-profile cases, and a case she led in 2003 ended in an acquittal and a settlement that cost taxpayers $1.34 million.
There were other warnings of problems in the section before the Stevens case. For example, in the case of David Safavian, a Bush official charged in the Abramoff scandal, a judge wrote in December 2008 that documents in prosecutors’ possession, brought to light by a recent book, “should be disclosed to the defendant immediately because they constitute favorable or potentially favorable evidence.”
The revelation implied that prosecutors might have improperly failed to disclose that material at Mr. Safavian’s 2006 trial, in which he was convicted. But the order attracted little attention because he was already scheduled for retrial on other charges. (He was convicted again.)
Mr. Holder has signaled that such disclosure lapses may be a systematic problem. Last month, he ordered all prosecutors to undergo retraining and established a working group to review where they needed additional resources to fulfill their obligations to provide material to the defense.
He has also made several other moves, including changing the leadership of the department’s internal ethics unit, the Office of Professional Responsibility, which the judge in the Stevens case criticized for moving slowly.
For now, the Public Integrity Section’s chief, William M. Welch II, and its deputy, Ms. Morris, are under a contempt order and are being investigated for their conduct in the Stevens case. Mr. Holder’s challenge, former officials say, is to maintain the morale of his old section as it continues to handle cases and he evaluates how to rebuild it.
In his retraining announcement, Mr. Holder hinted at the scope of that larger task.
“The actions we are taking today are part of an ongoing process to ensure justice is served in every case the department brings,” he said. “We will continue to review how cases are managed before, during and after charges are filed, and where there is room for improvement, we will make additional changes.”
Friday, May 8, 2009
W.R. Grace Acquitted in Asbestos Case, Shares Leap
Source: Reuters
By Clare Baldwin
Fri May 8, 2009 5:24pm EDT
SAN FRANCISCO (Reuters) - A federal jury in Montana acquitted chemical company W.R. Grace & Co and three of its executives on Friday on all counts in an asbestos environmental case, and its stock surged 36 percent.
The company and executives had been charged by a division of the Justice Department with knowingly endangering the lives of mine workers and other residents of Libby, Montana, near the Canadian border, and ignoring warnings by state agencies.
"We at Grace are gratified by today's verdict," Grace Chief Executive Fred Festa said in a statement on Friday.
"We always believed that Grace and its former executives had acted properly and that a jury would come to the same conclusion when confronted with the evidence," he said.
The case had been brought by the Justice Department's Environment and Natural Resources Division and the U.S. attorney for the district of Montana.
"The verdict was returned earlier today in open court: not guilty on all counts for all defendants," said Patrick Duffy, a clerk at the federal court in Missoula, Montana.
Grace, which is based in Columbia, Maryland, owned and operated a vermiculite mine and vermiculite processing facilities in and near Libby from 1963 to 1990. Vermiculite ore contaminated with asbestos -- a known human carcinogen -- was found nearby, according to the U.S. government.
The EPA began removing asbestos contamination in 2000 and Grace filed for bankruptcy protection from cleanup costs in 2001. The EPA filed to recover costs in 2003 and Grace agreed to pay $250 million in March 2008. The payment was the largest cash recovery under the Superfund law for cleaning up polluted sites, the Justice Department said at the time.
"The company worked hard to keep the operations in compliance with the laws and standards of the day," Grace said in a statement.
Vermiculite is used in many common commercial products, including attic insulation, fireproofing materials, masonry fill, and as an additive to potting soils and fertilizers.
Shares in the company, which is worth $945 million, were up 36 percent at $13.06. The stock has now doubled so far in 2009, after hitting a four-year low of $2.96 in November.
(Reporting by Clare Baldwin in San Francisco and Steve James in New York; Editing by Braden Reddall, Bernard Orr, Gary Hill)
By Clare Baldwin
Fri May 8, 2009 5:24pm EDT
SAN FRANCISCO (Reuters) - A federal jury in Montana acquitted chemical company W.R. Grace & Co and three of its executives on Friday on all counts in an asbestos environmental case, and its stock surged 36 percent.
The company and executives had been charged by a division of the Justice Department with knowingly endangering the lives of mine workers and other residents of Libby, Montana, near the Canadian border, and ignoring warnings by state agencies.
"We at Grace are gratified by today's verdict," Grace Chief Executive Fred Festa said in a statement on Friday.
"We always believed that Grace and its former executives had acted properly and that a jury would come to the same conclusion when confronted with the evidence," he said.
The case had been brought by the Justice Department's Environment and Natural Resources Division and the U.S. attorney for the district of Montana.
"The verdict was returned earlier today in open court: not guilty on all counts for all defendants," said Patrick Duffy, a clerk at the federal court in Missoula, Montana.
Grace, which is based in Columbia, Maryland, owned and operated a vermiculite mine and vermiculite processing facilities in and near Libby from 1963 to 1990. Vermiculite ore contaminated with asbestos -- a known human carcinogen -- was found nearby, according to the U.S. government.
The EPA began removing asbestos contamination in 2000 and Grace filed for bankruptcy protection from cleanup costs in 2001. The EPA filed to recover costs in 2003 and Grace agreed to pay $250 million in March 2008. The payment was the largest cash recovery under the Superfund law for cleaning up polluted sites, the Justice Department said at the time.
"The company worked hard to keep the operations in compliance with the laws and standards of the day," Grace said in a statement.
Vermiculite is used in many common commercial products, including attic insulation, fireproofing materials, masonry fill, and as an additive to potting soils and fertilizers.
Shares in the company, which is worth $945 million, were up 36 percent at $13.06. The stock has now doubled so far in 2009, after hitting a four-year low of $2.96 in November.
(Reporting by Clare Baldwin in San Francisco and Steve James in New York; Editing by Braden Reddall, Bernard Orr, Gary Hill)
Rove Lawyer: Likely Early June For US Attorneys Testimony
Source: TPMMuckraker
By Zachary Roth
May 7, 2009, 9:08AM
Karl Rove's long-awaited testimony before Congress about the US Attorney firings will likely occur around early June, according to Rove's lawyer.
Robert Luskin told TPMmuckraker that the Obama White House has been painstakingly sorting through the documents related to the firings, and is providing them to Rove and to the House Judiciary committee simultaneously. It's that process, said Luskin, that's driving the scheduling of Rove's testimony. Luskin stressed that the discussions have been cordial on all sides.
After the announcement in early March of the agreement securing Rove's testimony -- which will also cover the Don Siegelman case -- Luskin hadsuggested that we'd be hearing from Rove in "several weeks," though he declined to be more specific. But clearly, the process is taking longer than anticipated.
By Zachary Roth
May 7, 2009, 9:08AM
Karl Rove's long-awaited testimony before Congress about the US Attorney firings will likely occur around early June, according to Rove's lawyer.
Robert Luskin told TPMmuckraker that the Obama White House has been painstakingly sorting through the documents related to the firings, and is providing them to Rove and to the House Judiciary committee simultaneously. It's that process, said Luskin, that's driving the scheduling of Rove's testimony. Luskin stressed that the discussions have been cordial on all sides.
After the announcement in early March of the agreement securing Rove's testimony -- which will also cover the Don Siegelman case -- Luskin hadsuggested that we'd be hearing from Rove in "several weeks," though he declined to be more specific. But clearly, the process is taking longer than anticipated.
Thursday, May 7, 2009
New OPR Chief Predicts More Transparency in Attorney Investigations
Source: The BLT: The Blog of The Legal Times
Joe Palazzolo and Mike Scarcella
May 6, 2009
The new chief of the Justice Department's Office of Professional Responsibility said Tuesday she expected greater transparency in investigations of attorney misconduct and a more open discovery process in criminal cases.
Mary Patrice Brown, in her first public remarks since assuming command last month, predicted more of the office's reports would be released to the public. The office will make judgments about disclosure on a case-by-case basis, depending on the severity of the misconduct, its pervasiveness, and the public attention it garners, she said. Brown said across-the-board releases would not be in the interest of the department, noting that part of the OPR's mission is to protect lawyers against frivolous complaints.
“I think you’re going to be seeing a lot more transparency in the OPR investigations,” said Brown, a 20-year veteran of the U.S Attorney’s Office for the District of Columbia, who most recently served as criminal chief. “The Office of Inspector General publishes reports. The Office of Professional Responsibility traditionally has not. But I predict that you’ll be seeing a little bit more transparency about that.”
Her remarks, at a disciplinary conference at the Mayflower Hotel, echoed comments by Attorney General Eric Holder Jr. to a group of federal judges last month. At the meeting, Holder encouraged judges to contact him directly with concerns about professional misconduct.
The OPR has been an object of scrutiny in recent months, as lawmakers and advocacy groups have pushed for the release of a report on the conduct of former Bush administration lawyers who authored controversial legal opinions sanctioning the use of harsh interrogation methods and endorsing a broad view of the president's wartime powers.
Federal judges have also taken aim at the office. In April, U.S. District Judge Emmet Sullivan appointed an outside lawyer to investigate the six prosecutors involved in prosecution of former Alaska Sen. Ted Stevens, whose conviction was vacated last month at Holder's behest. The attorney general concluded the case was irreparably damaged by discovery errors, and the OPR has been investigating the prosecutors since October.
At the April 7 hearing on the government’s motion to dismiss the Stevens case, Sullivan cited the pace of the OPR investigation as one of his reasons for ordering the criminal contempt probe. He also implicitly questioned the office's independence. Brown was appointed the next day, replacing H. Marshall Jarrett, whom Holder elevated to head the Executive Office for U.S. Attorneys.
Brown avoided mention of the Stevens case by name and declined to discuss the investigations when asked about them by a member of the audience. But in explaining the various avenues through which complaints reach the OPR, she said, “Some of you may have heard that occasionally a judge gets a little upset and refers things to OPR or decides to take matters into his or her own hands, creating a special type of OPR."
Brown described the OPR as a “cleanup crew” assigned to probe for professional misconduct and weed out frivolous claims. “But sometimes, sadly, we uncover criminal conduct,” she said. Typically, the office refers such findings to department’s Public Integrity Section.
Brown noted three types of prosecutors who typically get into trouble: the over-zealous prosecutor, the under-zealous prosecutor, and the uniformed prosecutor. The OPR gets about 1,000 complaints a year, Brown said, and the bulk of them deal with alleged misrepresentations to court or to opposing counsel. On the next rung down, she said, are complaints related to lawyers’ failure to comply with DOJ regulations. Toward the bottom are discovery violations, she said, though they have attracted the most attention of late. Holder announced recently that department lawyers would receive additional training to reinforce their understanding of rules that govern discovery in criminal and civil cases.
“If your gut is telling you you do not want the defense to have this, then that tells you you must turn it over. That’s how we were trained. People who don’t do that, and hold things too close to the chest, those are the people who run into trouble,” Brown said. “In a white-collar case, the way I was trained, was for heaven’s sakes, turn it all over. What are you hiding? It’s easier that way.”
Brown also said she expects a more open discovery process, but stopped short of endorsing so-called “open file discovery,” where defense attorneys get everything. She predicted prosecutors would step up the practice of turning over disks containing “documents outlined and formatted for you so that defense attorneys can understand it.”
Mayer Brown partner Anthony Alexis, former deputy chief of the Major Crimes Section in the U.S. Attorney’s Office for the District of Columbia, says Brown’s remarks are not surprising. As a supervisor in the U.S. attorney’s office, she preached that in white-collar cases there should be an emphasis on turning over documents to the defense absent a compelling reason not to do so. “And the compelling reason is not that it hurts your case but that it hurts an individual,” says Alexis, whose practice focuses on white-collar defense and compliance. “I breathe a sigh of relief that there is a watchdog who understands it and who has been taught well herself and who will continue to teach well.”
Often lawyers cite Perry Mason as their raison d'être for entering the legal profession. Brown said she found inspiration in one the darkest chapter's in the nation's history.
“Sadly, I came home from school everyday and watched the Watergate hearings,” Brown said. “I wanted to do right and be like those, you know, crusading people on the Senate and House judiciary committees. So I think it’s kind of a nice circle for me to come back to a place that was started in 1975 really in response to what was going on in Watergate.”
Joe Palazzolo and Mike Scarcella
May 6, 2009
The new chief of the Justice Department's Office of Professional Responsibility said Tuesday she expected greater transparency in investigations of attorney misconduct and a more open discovery process in criminal cases.
Mary Patrice Brown, in her first public remarks since assuming command last month, predicted more of the office's reports would be released to the public. The office will make judgments about disclosure on a case-by-case basis, depending on the severity of the misconduct, its pervasiveness, and the public attention it garners, she said. Brown said across-the-board releases would not be in the interest of the department, noting that part of the OPR's mission is to protect lawyers against frivolous complaints.
“I think you’re going to be seeing a lot more transparency in the OPR investigations,” said Brown, a 20-year veteran of the U.S Attorney’s Office for the District of Columbia, who most recently served as criminal chief. “The Office of Inspector General publishes reports. The Office of Professional Responsibility traditionally has not. But I predict that you’ll be seeing a little bit more transparency about that.”
Her remarks, at a disciplinary conference at the Mayflower Hotel, echoed comments by Attorney General Eric Holder Jr. to a group of federal judges last month. At the meeting, Holder encouraged judges to contact him directly with concerns about professional misconduct.
The OPR has been an object of scrutiny in recent months, as lawmakers and advocacy groups have pushed for the release of a report on the conduct of former Bush administration lawyers who authored controversial legal opinions sanctioning the use of harsh interrogation methods and endorsing a broad view of the president's wartime powers.
Federal judges have also taken aim at the office. In April, U.S. District Judge Emmet Sullivan appointed an outside lawyer to investigate the six prosecutors involved in prosecution of former Alaska Sen. Ted Stevens, whose conviction was vacated last month at Holder's behest. The attorney general concluded the case was irreparably damaged by discovery errors, and the OPR has been investigating the prosecutors since October.
At the April 7 hearing on the government’s motion to dismiss the Stevens case, Sullivan cited the pace of the OPR investigation as one of his reasons for ordering the criminal contempt probe. He also implicitly questioned the office's independence. Brown was appointed the next day, replacing H. Marshall Jarrett, whom Holder elevated to head the Executive Office for U.S. Attorneys.
Brown avoided mention of the Stevens case by name and declined to discuss the investigations when asked about them by a member of the audience. But in explaining the various avenues through which complaints reach the OPR, she said, “Some of you may have heard that occasionally a judge gets a little upset and refers things to OPR or decides to take matters into his or her own hands, creating a special type of OPR."
Brown described the OPR as a “cleanup crew” assigned to probe for professional misconduct and weed out frivolous claims. “But sometimes, sadly, we uncover criminal conduct,” she said. Typically, the office refers such findings to department’s Public Integrity Section.
Brown noted three types of prosecutors who typically get into trouble: the over-zealous prosecutor, the under-zealous prosecutor, and the uniformed prosecutor. The OPR gets about 1,000 complaints a year, Brown said, and the bulk of them deal with alleged misrepresentations to court or to opposing counsel. On the next rung down, she said, are complaints related to lawyers’ failure to comply with DOJ regulations. Toward the bottom are discovery violations, she said, though they have attracted the most attention of late. Holder announced recently that department lawyers would receive additional training to reinforce their understanding of rules that govern discovery in criminal and civil cases.
“If your gut is telling you you do not want the defense to have this, then that tells you you must turn it over. That’s how we were trained. People who don’t do that, and hold things too close to the chest, those are the people who run into trouble,” Brown said. “In a white-collar case, the way I was trained, was for heaven’s sakes, turn it all over. What are you hiding? It’s easier that way.”
Brown also said she expects a more open discovery process, but stopped short of endorsing so-called “open file discovery,” where defense attorneys get everything. She predicted prosecutors would step up the practice of turning over disks containing “documents outlined and formatted for you so that defense attorneys can understand it.”
Mayer Brown partner Anthony Alexis, former deputy chief of the Major Crimes Section in the U.S. Attorney’s Office for the District of Columbia, says Brown’s remarks are not surprising. As a supervisor in the U.S. attorney’s office, she preached that in white-collar cases there should be an emphasis on turning over documents to the defense absent a compelling reason not to do so. “And the compelling reason is not that it hurts your case but that it hurts an individual,” says Alexis, whose practice focuses on white-collar defense and compliance. “I breathe a sigh of relief that there is a watchdog who understands it and who has been taught well herself and who will continue to teach well.”
Often lawyers cite Perry Mason as their raison d'être for entering the legal profession. Brown said she found inspiration in one the darkest chapter's in the nation's history.
“Sadly, I came home from school everyday and watched the Watergate hearings,” Brown said. “I wanted to do right and be like those, you know, crusading people on the Senate and House judiciary committees. So I think it’s kind of a nice circle for me to come back to a place that was started in 1975 really in response to what was going on in Watergate.”
Tuesday, May 5, 2009
Holder Promises Speedy and Transparent Reviews of Attorney Misconduct
Source: National Law Journal
By Andrew Longstreth
May 04, 2009
When Attorney General Eric Holder, Jr., took office earlier this year,
rebuilding morale at the Justice Department was one of his top priorities.But The National Law Journal's Joe Palazzolo reports that after the botched case against former Alaska senator Ted Stevens--in which the judge found that prosecutors had withheld evidence--he's also having to reassure federal judges of Justice's commitment to reviewing complaints against his own attorneys. We¹ll have to see what that does to morale.
According to Palazzolo, Holder met with the nation's chief federal district judges on April 21 in Washington, D.C. At the meeting, which was closed to the public, Holder promised improvements to the Office of Professional Responsibility and asked the judges to contact him personally about questionable prosecutor conduct. Palozzola reports that Holder even gave his cell phone number to the judges. How¹s that for service?
Chief Judge Mark Wolf of the District of Massachusetts took Holder up on the offer, reports Palazzolo. In a letter to Holder last week, Judge Wolf encouraged Holder to look into allegations of prosecutorial misconduct stemming from a high-profile mafia case and the prosecution of an FBI agent.
Assessing allegations of prosecutorial misconduct will be the job of Mary Patrice Brown, whom Holder appointed to the Office of Professional
Responsibility after Washington federal district court judge Emmett Sullivan dismissed the government's case against Stevens. At the meeting Holder praised Brown. "She sounds like she's really a ball of fire," one judge at the meeting told Palazzolo.
By Andrew Longstreth
May 04, 2009
When Attorney General Eric Holder, Jr., took office earlier this year,
rebuilding morale at the Justice Department was one of his top priorities.But The National Law Journal's Joe Palazzolo reports that after the botched case against former Alaska senator Ted Stevens--in which the judge found that prosecutors had withheld evidence--he's also having to reassure federal judges of Justice's commitment to reviewing complaints against his own attorneys. We¹ll have to see what that does to morale.
According to Palazzolo, Holder met with the nation's chief federal district judges on April 21 in Washington, D.C. At the meeting, which was closed to the public, Holder promised improvements to the Office of Professional Responsibility and asked the judges to contact him personally about questionable prosecutor conduct. Palozzola reports that Holder even gave his cell phone number to the judges. How¹s that for service?
Chief Judge Mark Wolf of the District of Massachusetts took Holder up on the offer, reports Palazzolo. In a letter to Holder last week, Judge Wolf encouraged Holder to look into allegations of prosecutorial misconduct stemming from a high-profile mafia case and the prosecution of an FBI agent.
Assessing allegations of prosecutorial misconduct will be the job of Mary Patrice Brown, whom Holder appointed to the Office of Professional
Responsibility after Washington federal district court judge Emmett Sullivan dismissed the government's case against Stevens. At the meeting Holder praised Brown. "She sounds like she's really a ball of fire," one judge at the meeting told Palazzolo.
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