Source: The BLT: Blog of the Legal Times
Mark Scarcella
April 28, 2009
Addressing a group of chief judges of federal district courts last week, Attorney General Eric Holder Jr. vowed the Justice Department will take seriously failures of prosecutors to perform their duties, according to a judge who participated in the conference.
Chief U.S. District Judge Mark Wolf of Massachusetts, who has pressed the Justice Department to be more aggressive in confronting allegations of attorney misconduct, wrote Holder on April 23 “with a renewed hope” that he will tackle misbehavior. Wolf’s letter was disclosed today in a mob racketeering case in Boston in which Wolf cited a prosecutor for misconduct.Wolf wrote that former Attorneys General Alberto Gonzales and Michael Mukasey did not respond to letters in recent years concerning allegations of misconduct in criminal cases in Massachusetts. In his letter to Holder, Wolf thanked him for his remarks to the chief judges.“We appreciate your determination to assure that Department of Justice attorneys perform their duties honorably and ably, and to take seriously any failure to do so,” Wolf wrote in the five-page letter. Holder had asked the judges, Wolf said in the letter, to report to him directly when the judges encounter a problem.
Wolf noted the recent decision of U.S. District Judge Emmet Sullivan to appoint a special prosecutor to investigate allegations of misconduct in the Ted Stevens case in the District of Columbia. The special counsel is investigating whether six prosecutors deliberately violated court orders and rules in the Stevens case. At Holder’s request, the judge tossed Stevens’ conviction earlier this month.
Sullivan’s action in the Stevens case, Wolf wrote in the letter, “confirms that other judges share my concern” about prosecution misconduct. “As the Stevens case also indicates, prosecutorial misconduct is neither a rare nor merely historical problem,” Wolf wrote.
http://legaltimes.typepad.com/blt/2009/04/holder-to-district-judges-doj-will-confront-misconduct.html
Showing posts with label Ted Stevens. Show all posts
Showing posts with label Ted Stevens. Show all posts
Tuesday, April 28, 2009
Wednesday, April 22, 2009
Review of Governor’s Conviction Sought
Source: The New York Times, www.nytimes.com
April 22, 2009
By John Schwartz and Charlie Savage
Less than a month after the Justice Department asked a judge to drop the case against former Senator Ted Stevens of Alaska because of prosecutorial misconduct, 75 former state attorneys general from both parties have urged Attorney General Eric H. Holder Jr. to conduct a similar investigation of the prosecution of former Gov. Don Siegelman of Alabama, who was convicted nearly three years ago on bribery and corruption charges.
In a letter to Mr. Holder, the attorneys general said Mr. Siegelman’s defense lawyers had raised “gravely troublesome facts” about his prosecution that raise questions about the fairness and due process of the trial.
“We believe that if prosecutorial misconduct is found, as in the case of Senator Ted Stevens, then dismissal should follow in this case as well,” the group said in the letter, which was organized by Robert Abrams, a former attorney general of New York.
Lawyers for Mr. Siegelman, a Democrat, have long accused the Justice Department under President George W. Bush of conducting a politically motivated prosecution that they say was filled with irregularities, including a failure to turn over pertinent information to the defense team.
In the weeks since the Stevens prosecution was dropped over similar issues, Mr. Siegelman’s team has made efforts to draw parallels between the two cases.
One of Mr. Siegelman’s lawyers, Vincent F. Kilborn III, said in an interview from his office in Mobile, Ala., that at least three of the officials who have been accused of misconduct in the Stevens investigation have played a role in the Siegelman case, including Patty Merkamp Stemler, the chief of the appellate section of the criminal division at the Justice Department, who is being held in contempt in the Stevens case over documents demanded by the judge that were not produced.
“Here we are minding our own business,” Mr. Kilborn said, “and this Ted Stevens thing comes out — and some of the same cast of characters are in the Siegelman case, as it turns out.”
Mr. Stevens, a Republican, lost his Senate seat last year after being convicted of felony charges that he failed to disclose gifts and services. Mr. Holder dropped the charges on April 1 because of evidence withheld by prosecutors who are now the subject of an ethics investigation.
Laura Sweeney, a spokeswoman for the Justice Department, said the department’s Office of Professional Responsibility is investigating the Siegelman case.
But she pointed out that a panel of the United States Court of Appeals for the 11th Circuit recently upheld Mr. Siegelman’s conviction, and because he is appealing that ruling, “the department will continue to litigate this matter in the courts, not in the media.”
Mr. Kilborn wrote a letter to Mr. Holder on April 3 laying out several of his charges of misconduct by prosecutors. He said Ms. Stemler sent a letter to lawyers on both sides concerning accusations that emerged in the appeals process that jurors had exchanged improper e-mail messages during the trial.
The letter revealed a private communication between United States marshals and the judge in the case that Mr. Kilborn characterized as inappropriate. The letter from Ms. Stemler came so late in the process, he said, that it limited options for the defense.
Ms. Stemler’s letter stated that the communication between the judge and the marshals had no effect on the case, however, and that it was only being revealed “out of an abundance of caution.” Mr. Kilborn scoffed at that logic, saying that any private dealings with the judge should have been noted at the time.
In the interview, but not in the letter, he noted that William Welch, chief of the department’s public integrity section, and his principal deputy, Brenda Morris, were held in contempt in the Stevens case and had a measure of involvement in the Siegelman case, though he did not offer evidence of misdeeds in his case.
Mr. Siegelman’s conviction centered on a donation by the former chief executive of HealthSouth, Richard M. Scrushy, to help retire a campaign debt. Prosecutors said that the donation was a deal for Mr. Scrushy’s appointment to the state hospital licensing board; Mr. Siegelman said it was nothing of the sort.
This is the third effort by Mr. Abrams to organize former attorneys general to help Mr. Siegelman, and the largest yet, with at least 10 Republicans signing their names. Grant Woods, a Republican and former attorney general from Arizona, said “nobody who signed that letter did so lightly,” especially those in his party. The issues transcended politics, he said, and the Kilborn letter raised serious questions.
“We think there’s something there to investigate,” he said. “This is not a desperate appeal by a convicted criminal defendant — these are substantial allegations that have great weight.”
Ultimately, however, the attorneys general have asked for something they have, in effect, already received. The Justice Department quietly disclosed in May 2008 that its Office of Professional Responsibility, an internal ethics watchdog, had begun an investigation into “allegations of selective or politicized prosecution” in four cases, including the one against Mr. Siegelman.
The Obama administration declined to talk about the details of the investigation.
For his part, Mr. Siegelman, who has been released from prison while awaiting the appeals of his conviction, said he was “enormously grateful” to the attorneys general for their intervention.
Copyright 2009 The New York Times Company
April 22, 2009
By John Schwartz and Charlie Savage
Less than a month after the Justice Department asked a judge to drop the case against former Senator Ted Stevens of Alaska because of prosecutorial misconduct, 75 former state attorneys general from both parties have urged Attorney General Eric H. Holder Jr. to conduct a similar investigation of the prosecution of former Gov. Don Siegelman of Alabama, who was convicted nearly three years ago on bribery and corruption charges.
In a letter to Mr. Holder, the attorneys general said Mr. Siegelman’s defense lawyers had raised “gravely troublesome facts” about his prosecution that raise questions about the fairness and due process of the trial.
“We believe that if prosecutorial misconduct is found, as in the case of Senator Ted Stevens, then dismissal should follow in this case as well,” the group said in the letter, which was organized by Robert Abrams, a former attorney general of New York.
Lawyers for Mr. Siegelman, a Democrat, have long accused the Justice Department under President George W. Bush of conducting a politically motivated prosecution that they say was filled with irregularities, including a failure to turn over pertinent information to the defense team.
In the weeks since the Stevens prosecution was dropped over similar issues, Mr. Siegelman’s team has made efforts to draw parallels between the two cases.
One of Mr. Siegelman’s lawyers, Vincent F. Kilborn III, said in an interview from his office in Mobile, Ala., that at least three of the officials who have been accused of misconduct in the Stevens investigation have played a role in the Siegelman case, including Patty Merkamp Stemler, the chief of the appellate section of the criminal division at the Justice Department, who is being held in contempt in the Stevens case over documents demanded by the judge that were not produced.
“Here we are minding our own business,” Mr. Kilborn said, “and this Ted Stevens thing comes out — and some of the same cast of characters are in the Siegelman case, as it turns out.”
Mr. Stevens, a Republican, lost his Senate seat last year after being convicted of felony charges that he failed to disclose gifts and services. Mr. Holder dropped the charges on April 1 because of evidence withheld by prosecutors who are now the subject of an ethics investigation.
Laura Sweeney, a spokeswoman for the Justice Department, said the department’s Office of Professional Responsibility is investigating the Siegelman case.
But she pointed out that a panel of the United States Court of Appeals for the 11th Circuit recently upheld Mr. Siegelman’s conviction, and because he is appealing that ruling, “the department will continue to litigate this matter in the courts, not in the media.”
Mr. Kilborn wrote a letter to Mr. Holder on April 3 laying out several of his charges of misconduct by prosecutors. He said Ms. Stemler sent a letter to lawyers on both sides concerning accusations that emerged in the appeals process that jurors had exchanged improper e-mail messages during the trial.
The letter revealed a private communication between United States marshals and the judge in the case that Mr. Kilborn characterized as inappropriate. The letter from Ms. Stemler came so late in the process, he said, that it limited options for the defense.
Ms. Stemler’s letter stated that the communication between the judge and the marshals had no effect on the case, however, and that it was only being revealed “out of an abundance of caution.” Mr. Kilborn scoffed at that logic, saying that any private dealings with the judge should have been noted at the time.
In the interview, but not in the letter, he noted that William Welch, chief of the department’s public integrity section, and his principal deputy, Brenda Morris, were held in contempt in the Stevens case and had a measure of involvement in the Siegelman case, though he did not offer evidence of misdeeds in his case.
Mr. Siegelman’s conviction centered on a donation by the former chief executive of HealthSouth, Richard M. Scrushy, to help retire a campaign debt. Prosecutors said that the donation was a deal for Mr. Scrushy’s appointment to the state hospital licensing board; Mr. Siegelman said it was nothing of the sort.
This is the third effort by Mr. Abrams to organize former attorneys general to help Mr. Siegelman, and the largest yet, with at least 10 Republicans signing their names. Grant Woods, a Republican and former attorney general from Arizona, said “nobody who signed that letter did so lightly,” especially those in his party. The issues transcended politics, he said, and the Kilborn letter raised serious questions.
“We think there’s something there to investigate,” he said. “This is not a desperate appeal by a convicted criminal defendant — these are substantial allegations that have great weight.”
Ultimately, however, the attorneys general have asked for something they have, in effect, already received. The Justice Department quietly disclosed in May 2008 that its Office of Professional Responsibility, an internal ethics watchdog, had begun an investigation into “allegations of selective or politicized prosecution” in four cases, including the one against Mr. Siegelman.
The Obama administration declined to talk about the details of the investigation.
For his part, Mr. Siegelman, who has been released from prison while awaiting the appeals of his conviction, said he was “enormously grateful” to the attorneys general for their intervention.
Copyright 2009 The New York Times Company
Tuesday, April 14, 2009
Ted Stevens Rejected Deal to Admit Guilt
Source: The New York Times, nytimes.com
April 14, 2009
By Neil A. Lewis
WASHINGTON — Ted Stevens, the former senator from Alaska, turned down a plea offer from federal prosecutors that would have spared him a trial and jail time but required him to plead guilty to a single felony count, according to newly disclosed records.
Mr. Stevens’s lawyers rejected the proposal on his behalf, according to transcripts of discussions between the trial judge and lawyers for both sides. The transcripts were sealed until the judge, Emmet G. Sullivan of Federal District Court, recently ordered them opened.
The disclosure of the offer and rejection of a plea bargain, first reported Monday on the Web site of Legal Times, is the latest twist in the case of Mr. Stevens, a Republican whose conviction on ethics charges was recently thrown out by Judge Sullivan because of errors by prosecutors who are now themselves the subject of an ethics inquiry.
On July 31, just weeks before the trial was to begin, Judge Sullivan asked the lawyers in a private conference if there had been any negotiations on a plea agreement. Brendan Sullivan, Mr. Stevens’s lawyer, said “they did offer us no-jail disposition” for pleading guilty to one felony count. “We turned it down,” Mr. Sullivan added.
In October, a jury found Mr. Stevens guilty on seven felony counts in connection with Senate disclosure forms that did not list gifts and renovation services, largely for a family residence in Girdwood, Alaska. During the five-week trial, Judge Sullivan repeatedly scolded Justice Department prosecutors for improperly withholding information that defense lawyers could have used to bolster their case.
Mr. Stevens, who is 85, lost his bid for re-election by a close margin within days of the verdict. But Judge Sullivan had not yet sentenced Mr. Stevens, who faced an almost certain jail term, because he was still considering motions from Mr. Stevens’s lawyers to order a new trial because of the prosecutors’ errors.
Before Judge Sullivan ruled, however, Attorney General Eric H. Holder Jr., said earlier this month that a new team of government lawyers he had assigned to the case discovered a new instance of the prosecution team’s withholding information that could have been used by the defense. Mr. Holder asked that the case be dismissed and said the department would not seek to retry Mr. Stevens.
The existence of discussions over a possible plea provides some insight into the case. Prosecutors did not charge Mr. Stevens with a more straightforward corruption count like bribery, which could have been harder to prove than what they charged him with, failing to file required disclosure forms.
But the prosecution apparently believed that it was important that Mr. Stevens acknowledge a felony to avoid a trial. For Mr. Stevens, such a plea would have raised a serious obstacle to his plans to return to the Senate, where he had been a member for 40 years.
April 14, 2009
By Neil A. Lewis
WASHINGTON — Ted Stevens, the former senator from Alaska, turned down a plea offer from federal prosecutors that would have spared him a trial and jail time but required him to plead guilty to a single felony count, according to newly disclosed records.
Mr. Stevens’s lawyers rejected the proposal on his behalf, according to transcripts of discussions between the trial judge and lawyers for both sides. The transcripts were sealed until the judge, Emmet G. Sullivan of Federal District Court, recently ordered them opened.
The disclosure of the offer and rejection of a plea bargain, first reported Monday on the Web site of Legal Times, is the latest twist in the case of Mr. Stevens, a Republican whose conviction on ethics charges was recently thrown out by Judge Sullivan because of errors by prosecutors who are now themselves the subject of an ethics inquiry.
On July 31, just weeks before the trial was to begin, Judge Sullivan asked the lawyers in a private conference if there had been any negotiations on a plea agreement. Brendan Sullivan, Mr. Stevens’s lawyer, said “they did offer us no-jail disposition” for pleading guilty to one felony count. “We turned it down,” Mr. Sullivan added.
In October, a jury found Mr. Stevens guilty on seven felony counts in connection with Senate disclosure forms that did not list gifts and renovation services, largely for a family residence in Girdwood, Alaska. During the five-week trial, Judge Sullivan repeatedly scolded Justice Department prosecutors for improperly withholding information that defense lawyers could have used to bolster their case.
Mr. Stevens, who is 85, lost his bid for re-election by a close margin within days of the verdict. But Judge Sullivan had not yet sentenced Mr. Stevens, who faced an almost certain jail term, because he was still considering motions from Mr. Stevens’s lawyers to order a new trial because of the prosecutors’ errors.
Before Judge Sullivan ruled, however, Attorney General Eric H. Holder Jr., said earlier this month that a new team of government lawyers he had assigned to the case discovered a new instance of the prosecution team’s withholding information that could have been used by the defense. Mr. Holder asked that the case be dismissed and said the department would not seek to retry Mr. Stevens.
The existence of discussions over a possible plea provides some insight into the case. Prosecutors did not charge Mr. Stevens with a more straightforward corruption count like bribery, which could have been harder to prove than what they charged him with, failing to file required disclosure forms.
But the prosecution apparently believed that it was important that Mr. Stevens acknowledge a felony to avoid a trial. For Mr. Stevens, such a plea would have raised a serious obstacle to his plans to return to the Senate, where he had been a member for 40 years.
Sunday, April 12, 2009
Shortfalls Unraveled Stevens's Conviction; Observers Cite Prosecutors' Lack of Time, Other Reasons
Source: The Washington Post
April 12, 2009
By Carrie Johnson, Washington Post Staff Writer
The Justice Department team charged with prosecuting former senator Ted Stevens miscalculated by not seeking more time to prepare for the high-stakes corruption trial and fell victim to inexperience and thin staffing, which contributed to its alleged mishandling of witnesses and evidence, according to interviews with more than a dozen lawyers who followed the case.
Last year's compressed trial timeline forced government lawyers to jam their preparations into seven weeks and intensified a series of challenges: the late addition of a new lawyer; an aggressive adversary who deluged them with requests for documents; and a skeptical judge whose behavior turned unpredictable, then punitive.
The difficulties led U.S. District Judge Emmet G. Sullivan last week to dismiss a conviction against Stevens, a Republican who represented Alaska in the U.S. Senate for nearly 40 years, and to turn the tables and initiate a criminal probe of six of the prosecutors.
Former prosecutors, defense lawyers and onetime Justice Department officials also described more chronic liabilities in the department's Public Integrity Section: Once the "A Team" for fighting corruption in state legislatures, judges' chambers and Congress, the unit in recent years lost staffing, strong supervision, some of its varnish and its insulation from politics.
Only days after the case against Stevens collapsed, lawyers inside and outside the department were chronicling its demise and picking apart the skill of the prosecution team, at least one of whose members had watched cases fall apart in the past. But government officials and defense attorneys alike said they do not think that prosecutors in the Public Integrity Section or its leaders acted out of base political motivations.
The Justice Department, already laboring under well-documented episodes of political interference during the Bush years, is now facing intense scrutiny over whether it flouted the rules in one of the highest-profile cases of the past decade.
Prosecutors and FBI agents are hiring their own lawyers and pointing the finger at one another, even as a special prosecutor and the department's ethics watchdogs are trying to determine whether members of the team broke the law to cheat their way to victory or merely succumbed to lapses of incompetence, inexperience or lax supervision.
The six members of the prosecution team declined to comment or did not return phone calls and e-mail messages left with them and their friends. But department spokeswoman Laura Sweeney said the unit has a solid record, having secured nearly 400 convictions since 2001.
"For more than 30 years, the Public Integrity Section has been effectively prosecuting public officials, regardless of political affiliation, who abuse their office and their obligation to the American people," Sweeney said. "Every day, in courtrooms nationwide, these prosecutors work under challenging circumstances to hold our public officials accountable for their conduct, and they will continue to do so."
The very nature of the section's mandate, to target corruption across the country, has posed recurrent challenges.
Former department attorneys, for example, cited chronic problems that have plagued the unit: competition and confusion with partner prosecutors in U.S. attorney's offices around the country. Federal prosecutors in the District, for instance, were consulted about the Stevens case starting in 2006 but declined to participate, thinking that the charges were shaky, according to sources familiar with the discussions. The assistant U.S. attorneys also considered overly aggressive the prosecutors' early plan, later abandoned, to get a warrant to search the lawmaker's D.C. area home, the sources said.
The government's path could have been eased had the U.S. attorney's office been part of the case, adding players who were familiar with the courthouse and the personality of the trial judge.
The Stevens case had been handled for years by Joseph W. Bottini and James A. Goeke, two career lawyers from the U.S. attorney's office in Alaska, and two attorneys from the Public Integrity unit, Nicholas A. Marsh and Edward P. Sullivan, whose prosecution of Alaska officials had led to charges that Stevens had failed to report gifts on his Senate ethics forms.
As the indictment loomed against Stevens last summer, authorities in the department's criminal division pondered whether to add a more magnetic courtroom presence to the team. Department officials decided to tap Brenda Morris, a feisty, sharp-tongued trial lawyer who had been serving as deputy chief of the Public Integrity Section, to put Stevens on the hot seat and to build rapport with the jury. But that required the other lawyers to spend hours schooling Morris on the nuances of the case, keeping them from tackling boxes of documents related to the case, according to sources close to the lawyers.
It was to be the most high-profile prosecution of Morris's career.
Four years earlier, Morris had run into trouble in a case she handled when a federal jury in Texas acquitted San Antonio criminal defense lawyer Alan Brown, who had been charged with tax offenses. In a subsequent civil suit filed by Brown, who alleged that FBI agents had wrongfully pursued him based on a sketchy account from his disgruntled secretary, the government ultimately paid Brown $1.34 million to settle the claim.
Brown and his lawyers say that Morris ignored warnings from local federal prosecutors who cast doubt on the credibility of a critical witness, an office assistant who peddled questionable information about Brown in a bid to win a reduction in the prison sentence of her boyfriend. A judge in San Antonio had thrown out the case before it went to trial, but an appeals court revived the prosecution, which Morris led.
"She is the race car driver who blew past the red flag," said Bill Reid, a lawyer for Brown in the civil wrongful prosecution case.
But last week, current and former colleagues of Morris defended her reputation and her ethics, saying they do not think that she would intentionally run afoul of the rules.
The Public Integrity Section has had five chiefs in six years. The latest is William M. Welch II, who was honored three years ago by the attorney general for exposing corruption in the Springfield, Mass., government. Welch, one of the six prosecutors now under investigation, did not play a major role in the courtroom during the Stevens case but took a more active posture after the judge raised questions about sharing evidence.
Indeed, during the presidential transition period, incoming Justice Department officials heard complaints about whether career lawyers properly understood their obligations to hand over materials to criminal defendants, prompting Attorney General Eric H. Holder Jr. last week to call for additional training and oversight. The Stevens case, perhaps the starkest example of the troubles, brought the severity of the problem into the national spotlight.
Former prosecutors described public corruption probes as particularly tricky. Defendants are used to seizing the stage, they generally have the money to pay for top-flight defense lawyers, and they do not hesitate to pick apart the inner workings of cases or to cast aspersions on the motives of prosecutors.
Others said the Stevens case, along with the acquittal of former Puerto Rican governor Anibal Acevedo Vilá (D) last month, exposed deeper problems with a lack of supervision of the Public Integrity Section, which has experienced heavy turnover.
"In high-profile cases, particularly cases involving public officials, the vetting process has fallen down," said Thomas C. Green, a Washington defense lawyer who won Vilá's acquittal. "I think what happens is that they get caught up in the competition and there's no experienced voice of reason who says we cannot do this, we should not do this, we must not do this. These two cases could not have happened if the vetting process was in place and operating as it should."
But Gerald E. McDowell, who ran the Public Integrity unit for a dozen years, said that supervisors typically do not "nitpick" the work of their subordinates because there is not enough time, given caseloads.
In the Stevens case, signs of frustration began emerging early. At one pretrial hearing, defense lawyers hammered prosecutors with requests to produce thousands of pages of electronic evidence. Morris became flustered. "Just because he has 'U.S. Senator' before his name doesn't mean we have to drink out of a fire hose every time they call us," she said in court.
In another unusual twist, the conduct of public corruption unit lawyers was questioned by Chad Joy, an FBI agent from the Anchorage office assigned to help with the trial. In a 10-page whistleblower complaint, Joy reported seeing boxes of unprocessed evidence stacked outside Marsh's D.C. office, asserted that Marsh had misplaced a piece of evidence and lodged more serious allegations about failure to turn over materials to the defense. The complaint became public after the trial, fueling calls by Stevens's lawyers to overturn the senator's conviction.
Among other issues, Joy chronicled internal battles among the prosecutors about whether to turn over notes and argued that lawyers had delegated to his colleague, FBI case agent Mary Beth Kepner, the task of going over interview notes and deciding what should be redacted before handing the papers to the defense team.
Current and former prosecutors said it is highly unusual to delegate that task to an FBI agent because it involves legal questions and sensitive judgment calls for which prosecutors ultimately will be held responsible.
Compared with other Justice Department lawyers, those in the Public Integrity Section generally have been stingier about turning over materials to defense lawyers, former department attorneys said, and the section lacked clear rules on the question. It was a more difficult question in the Stevens case, with much of the evidence 4,000 miles away in Alaska.
One of the key questions now for ethics investigators and Henry F. Schuelke III, the special prosecutor appointed by the trial judge, revolves around a mid-April 2008 interview of the government's key witness, Bill Allen. Notes from that meeting in Alaska were uncovered earlier this month by the new Justice Department team examining the case, raising fresh questions about inconsistencies in Allen's trial testimony and prompting Holder to abandon the conviction.
"I always want to ensure . . . that if we make mistakes that we admit them, and that we then take the appropriate action," Holder said Thursday.
But, in a fashion befitting the strange and troubled course of the Stevens case, the people who are now the subject of "appropriate action" by authorities are the half-dozen men and women who prosecuted him.
Staff writer Del Quentin Wilber and researcher Julie Tate contributed to this report.
April 12, 2009
By Carrie Johnson, Washington Post Staff Writer
The Justice Department team charged with prosecuting former senator Ted Stevens miscalculated by not seeking more time to prepare for the high-stakes corruption trial and fell victim to inexperience and thin staffing, which contributed to its alleged mishandling of witnesses and evidence, according to interviews with more than a dozen lawyers who followed the case.
Last year's compressed trial timeline forced government lawyers to jam their preparations into seven weeks and intensified a series of challenges: the late addition of a new lawyer; an aggressive adversary who deluged them with requests for documents; and a skeptical judge whose behavior turned unpredictable, then punitive.
The difficulties led U.S. District Judge Emmet G. Sullivan last week to dismiss a conviction against Stevens, a Republican who represented Alaska in the U.S. Senate for nearly 40 years, and to turn the tables and initiate a criminal probe of six of the prosecutors.
Former prosecutors, defense lawyers and onetime Justice Department officials also described more chronic liabilities in the department's Public Integrity Section: Once the "A Team" for fighting corruption in state legislatures, judges' chambers and Congress, the unit in recent years lost staffing, strong supervision, some of its varnish and its insulation from politics.
Only days after the case against Stevens collapsed, lawyers inside and outside the department were chronicling its demise and picking apart the skill of the prosecution team, at least one of whose members had watched cases fall apart in the past. But government officials and defense attorneys alike said they do not think that prosecutors in the Public Integrity Section or its leaders acted out of base political motivations.
The Justice Department, already laboring under well-documented episodes of political interference during the Bush years, is now facing intense scrutiny over whether it flouted the rules in one of the highest-profile cases of the past decade.
Prosecutors and FBI agents are hiring their own lawyers and pointing the finger at one another, even as a special prosecutor and the department's ethics watchdogs are trying to determine whether members of the team broke the law to cheat their way to victory or merely succumbed to lapses of incompetence, inexperience or lax supervision.
The six members of the prosecution team declined to comment or did not return phone calls and e-mail messages left with them and their friends. But department spokeswoman Laura Sweeney said the unit has a solid record, having secured nearly 400 convictions since 2001.
"For more than 30 years, the Public Integrity Section has been effectively prosecuting public officials, regardless of political affiliation, who abuse their office and their obligation to the American people," Sweeney said. "Every day, in courtrooms nationwide, these prosecutors work under challenging circumstances to hold our public officials accountable for their conduct, and they will continue to do so."
The very nature of the section's mandate, to target corruption across the country, has posed recurrent challenges.
Former department attorneys, for example, cited chronic problems that have plagued the unit: competition and confusion with partner prosecutors in U.S. attorney's offices around the country. Federal prosecutors in the District, for instance, were consulted about the Stevens case starting in 2006 but declined to participate, thinking that the charges were shaky, according to sources familiar with the discussions. The assistant U.S. attorneys also considered overly aggressive the prosecutors' early plan, later abandoned, to get a warrant to search the lawmaker's D.C. area home, the sources said.
The government's path could have been eased had the U.S. attorney's office been part of the case, adding players who were familiar with the courthouse and the personality of the trial judge.
The Stevens case had been handled for years by Joseph W. Bottini and James A. Goeke, two career lawyers from the U.S. attorney's office in Alaska, and two attorneys from the Public Integrity unit, Nicholas A. Marsh and Edward P. Sullivan, whose prosecution of Alaska officials had led to charges that Stevens had failed to report gifts on his Senate ethics forms.
As the indictment loomed against Stevens last summer, authorities in the department's criminal division pondered whether to add a more magnetic courtroom presence to the team. Department officials decided to tap Brenda Morris, a feisty, sharp-tongued trial lawyer who had been serving as deputy chief of the Public Integrity Section, to put Stevens on the hot seat and to build rapport with the jury. But that required the other lawyers to spend hours schooling Morris on the nuances of the case, keeping them from tackling boxes of documents related to the case, according to sources close to the lawyers.
It was to be the most high-profile prosecution of Morris's career.
Four years earlier, Morris had run into trouble in a case she handled when a federal jury in Texas acquitted San Antonio criminal defense lawyer Alan Brown, who had been charged with tax offenses. In a subsequent civil suit filed by Brown, who alleged that FBI agents had wrongfully pursued him based on a sketchy account from his disgruntled secretary, the government ultimately paid Brown $1.34 million to settle the claim.
Brown and his lawyers say that Morris ignored warnings from local federal prosecutors who cast doubt on the credibility of a critical witness, an office assistant who peddled questionable information about Brown in a bid to win a reduction in the prison sentence of her boyfriend. A judge in San Antonio had thrown out the case before it went to trial, but an appeals court revived the prosecution, which Morris led.
"She is the race car driver who blew past the red flag," said Bill Reid, a lawyer for Brown in the civil wrongful prosecution case.
But last week, current and former colleagues of Morris defended her reputation and her ethics, saying they do not think that she would intentionally run afoul of the rules.
The Public Integrity Section has had five chiefs in six years. The latest is William M. Welch II, who was honored three years ago by the attorney general for exposing corruption in the Springfield, Mass., government. Welch, one of the six prosecutors now under investigation, did not play a major role in the courtroom during the Stevens case but took a more active posture after the judge raised questions about sharing evidence.
Indeed, during the presidential transition period, incoming Justice Department officials heard complaints about whether career lawyers properly understood their obligations to hand over materials to criminal defendants, prompting Attorney General Eric H. Holder Jr. last week to call for additional training and oversight. The Stevens case, perhaps the starkest example of the troubles, brought the severity of the problem into the national spotlight.
Former prosecutors described public corruption probes as particularly tricky. Defendants are used to seizing the stage, they generally have the money to pay for top-flight defense lawyers, and they do not hesitate to pick apart the inner workings of cases or to cast aspersions on the motives of prosecutors.
Others said the Stevens case, along with the acquittal of former Puerto Rican governor Anibal Acevedo Vilá (D) last month, exposed deeper problems with a lack of supervision of the Public Integrity Section, which has experienced heavy turnover.
"In high-profile cases, particularly cases involving public officials, the vetting process has fallen down," said Thomas C. Green, a Washington defense lawyer who won Vilá's acquittal. "I think what happens is that they get caught up in the competition and there's no experienced voice of reason who says we cannot do this, we should not do this, we must not do this. These two cases could not have happened if the vetting process was in place and operating as it should."
But Gerald E. McDowell, who ran the Public Integrity unit for a dozen years, said that supervisors typically do not "nitpick" the work of their subordinates because there is not enough time, given caseloads.
In the Stevens case, signs of frustration began emerging early. At one pretrial hearing, defense lawyers hammered prosecutors with requests to produce thousands of pages of electronic evidence. Morris became flustered. "Just because he has 'U.S. Senator' before his name doesn't mean we have to drink out of a fire hose every time they call us," she said in court.
In another unusual twist, the conduct of public corruption unit lawyers was questioned by Chad Joy, an FBI agent from the Anchorage office assigned to help with the trial. In a 10-page whistleblower complaint, Joy reported seeing boxes of unprocessed evidence stacked outside Marsh's D.C. office, asserted that Marsh had misplaced a piece of evidence and lodged more serious allegations about failure to turn over materials to the defense. The complaint became public after the trial, fueling calls by Stevens's lawyers to overturn the senator's conviction.
Among other issues, Joy chronicled internal battles among the prosecutors about whether to turn over notes and argued that lawyers had delegated to his colleague, FBI case agent Mary Beth Kepner, the task of going over interview notes and deciding what should be redacted before handing the papers to the defense team.
Current and former prosecutors said it is highly unusual to delegate that task to an FBI agent because it involves legal questions and sensitive judgment calls for which prosecutors ultimately will be held responsible.
Compared with other Justice Department lawyers, those in the Public Integrity Section generally have been stingier about turning over materials to defense lawyers, former department attorneys said, and the section lacked clear rules on the question. It was a more difficult question in the Stevens case, with much of the evidence 4,000 miles away in Alaska.
One of the key questions now for ethics investigators and Henry F. Schuelke III, the special prosecutor appointed by the trial judge, revolves around a mid-April 2008 interview of the government's key witness, Bill Allen. Notes from that meeting in Alaska were uncovered earlier this month by the new Justice Department team examining the case, raising fresh questions about inconsistencies in Allen's trial testimony and prompting Holder to abandon the conviction.
"I always want to ensure . . . that if we make mistakes that we admit them, and that we then take the appropriate action," Holder said Thursday.
But, in a fashion befitting the strange and troubled course of the Stevens case, the people who are now the subject of "appropriate action" by authorities are the half-dozen men and women who prosecuted him.
Staff writer Del Quentin Wilber and researcher Julie Tate contributed to this report.
Friday, April 3, 2009
Mr. Holder and the Ted Stevens Case--Editorial
Source: The New York Times, nytimes.com
April 3, 2009
For eight years the Bush Justice Department cynically put politics and ideology above the law. So it is gratifying to see how Attorney General Eric Holder is handling the case against Ted Stevens, the former Alaska senator who was convicted last year on seven felony counts of ethics violations.
Mr. Holder announced this week that he would ask a judge to drop all charges against Mr. Stevens, a Republican, because of prosecutorial misconduct. Mr. Holder should ensure that the Justice Department gets to the bottom of what went wrong and subject other cases that have raised red flags to similar scrutiny.
Mr. Stevens was convicted of making false statements on Senate disclosure forms to hide an estimated $250,000 in home renovations and gifts, many from Bill Allen, an old friend with close ties to his state’s oil industry. The Justice Department says that prosecutors failed to turn over to the defense notes from an interview with Mr. Allen, a prime witness in the case, which conflicted with parts of his trial testimony.
Prosecutors are legally required to turn over evidence in their possession that would help a defendant prove his innocence. This revelation is only the latest in a series of instances in which Mr. Stevens’s prosecutors appear to have acted wrongly.
The prosecutors’ bad acts do not necessarily mean that Mr. Stevens was innocent of misusing his office. But in light of the prosecutorial wrongdoing, and the fact that Mr. Stevens lost his Senate seat last November, Mr. Holder was right not to choose to retry the case.
Mr. Holder, whose department is continuing to investigate the Stevens prosecution, now needs to determine whether the prosecutors’ conduct was so egregious that they should face their own ethics charges.
He should not stop with this case. Don Siegelman, the former governor of Alabama, and Paul Minor, a prominent Mississippi trial lawyer, have charged that Justice Department prosecutors engaged in unethical behavior in cases that led to their convictions. Both men claim that they were singled out for prosecution because of their affiliation with the Democratic Party.
Given the flagrant partisanship of the Bush Justice Department, it is especially reassuring to see Mr. Holder ignore party lines to do the right thing by Mr. Stevens. It has been far too long since the attorney general seemed interested in enforcing ethics and nonpartisanship in a department that has been shockingly lacking in both.
April 3, 2009
For eight years the Bush Justice Department cynically put politics and ideology above the law. So it is gratifying to see how Attorney General Eric Holder is handling the case against Ted Stevens, the former Alaska senator who was convicted last year on seven felony counts of ethics violations.
Mr. Holder announced this week that he would ask a judge to drop all charges against Mr. Stevens, a Republican, because of prosecutorial misconduct. Mr. Holder should ensure that the Justice Department gets to the bottom of what went wrong and subject other cases that have raised red flags to similar scrutiny.
Mr. Stevens was convicted of making false statements on Senate disclosure forms to hide an estimated $250,000 in home renovations and gifts, many from Bill Allen, an old friend with close ties to his state’s oil industry. The Justice Department says that prosecutors failed to turn over to the defense notes from an interview with Mr. Allen, a prime witness in the case, which conflicted with parts of his trial testimony.
Prosecutors are legally required to turn over evidence in their possession that would help a defendant prove his innocence. This revelation is only the latest in a series of instances in which Mr. Stevens’s prosecutors appear to have acted wrongly.
The prosecutors’ bad acts do not necessarily mean that Mr. Stevens was innocent of misusing his office. But in light of the prosecutorial wrongdoing, and the fact that Mr. Stevens lost his Senate seat last November, Mr. Holder was right not to choose to retry the case.
Mr. Holder, whose department is continuing to investigate the Stevens prosecution, now needs to determine whether the prosecutors’ conduct was so egregious that they should face their own ethics charges.
He should not stop with this case. Don Siegelman, the former governor of Alabama, and Paul Minor, a prominent Mississippi trial lawyer, have charged that Justice Department prosecutors engaged in unethical behavior in cases that led to their convictions. Both men claim that they were singled out for prosecution because of their affiliation with the Democratic Party.
Given the flagrant partisanship of the Bush Justice Department, it is especially reassuring to see Mr. Holder ignore party lines to do the right thing by Mr. Stevens. It has been far too long since the attorney general seemed interested in enforcing ethics and nonpartisanship in a department that has been shockingly lacking in both.
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