Prosecution Tanks In Toobz Stevens Trial

Ted Stevens has been sitting in the courtroom of Judge Emmet Sullivan in the E. Barrett Prettyman Federal Courthouse in DC since jury selection began on September 22. This morning the excrement hit the fan. Big time. Stevens’ attorney, Brendan Sullivan, has moved for dismissal of the charges against Stevens, and he just may get it. The prosecution has screwed the pooch in a fundamental and intentional way.

From a wire report off of Reuters filed an hour ago:

Lawyers for Republican U.S. Sen. Ted Stevens of Alaska urged a judge Thursday to dismiss the corruption case against him because they said prosecutors had withheld evidence helpful to their defense.

U.S. Justice Department prosecutor Brenda Morris admitted a mistake had been made, but asked the judge to allow the trial to go forward. "We are human and we made an error," she said. "It was a mistake."

The information involved an interview by an FBI agent with Bill Allen, the prosecution’s star witness. In the interview, Allen said he believed Stevens and his wife would have paid for the renovations to their home in Alaska if Allen had sent them a bill.

Prosecutors had notified the defense about the information only late Wednesday, after Allen had completed his second day of testimony.

Stevens’s attorney Brendan Sullivan asked the judge to dismiss the indictment. "It goes to the core of the defense," he said.

U.S. District Judge Emmet Sullivan did not immediately rule on the request to throw out the case, but he clearly was angered by the mistake, calling it "unbelievable" and "very troubling." (emphasis added)

This is really bad. Blatant intentional withholding by the prosecution of exculpatory evidence. And it is evidence that bores straight into the heart of Stevens’ not guilty defense. The defense did not learn of the existence of this until long after Allen took the stand. The directly and materially exculpatory to Stevens. There is no way to argue that Stevens’ attorney would not have conducted his examination of all witnesses to date, much less Bill Allen, differently with knowledge of this in the government’s evidence set.

Here is the clincher.

The new evidence involved an interview that had been turned over to the defense, but the key part of what Allen said — that the couple would pay if they had been sent a bill — had been blacked out.

How do you not view this as intentional and malicious conduct by the prosecution? The key exculpatory portion of the witness statement, of the most important and star prosecution witness, Bill Allen, owner of VECO, blacked out and hidden from the defense? Please. That is intentional and flagrant.

When you hear legal types discussing "Brady material" or "Brady evidence", this is exactly what they are describing. Under the seminal case of Brady v. Maryland (maybe we should ask Sarah Palin) the prosecution must disclose to the defendant any exculpatory evidence they possess. Failure to so disclose can result in the dismissal of a case.

The situation in Stevens’ case is awfully blatant and clearly exculpatory. It should result in at least a mistrial; if I were the judge I would bounce the entire indictment with prejudice. If a defendant can’t obtain relief on this fact set, then the theory in Brady v. Maryland has no meaning. Those judges in DC must be ready to explode over what this justice department has done over the last 8 years. The prosecution is in for a reaming of some sort either this afternoon or tomorrow morning. Stay tuned.

UPDATE: McClatchy has some additional information up:

The lead Justice Department prosecutor, Brenda Morris, equally angry, had this response: "He’s getting a fair trial, believe me. You’re getting a great fair trial."

Infuriated, U.S. District Judge Emmet Sullivan said he found it "unbelievable."

"It strikes me this is probably intentional," the judge said. "This is the government’s chief witness!"

Judge Sullivan sent the jurors home for the day. He’ll hold a hearing later Thursday afternoon to determine whether to dismiss the case.

"Maybe they’ll come back tomorrow for further service, maybe they won’t," he said.

Even if it wasn’t intentional, he told prosecutors, it was "gross negligence on the part of the government."

He bristled at the prosecution’s characterization that it was "lucky" that Allen was still on the stand and had yet to finish his testimony for the government, let alone be cross-examined by Stevens’ attorneys.

"It shouldn’t have to be lucky to get the government to do its job," Sullivan said. "The fair administration of justice doesn’t depend on the luck of the draw, a lucky day or a lucky continuance."

The judge is right, this is very offensive conduct from a due process standpoint. The withheld evidence goes directly, and I mean directly, to the element of intent. The prosecution argues that it is harmless error because they have adduced testimony that Stevens requested bills (actually additional bills, because it is established that Stevens paid a substantial sum, just not enough to allegedly cover all the work), but that Allen didn’t forward them. However, the blacked out (redacted) portion of their disclosure directly and unequivocally states that Allen believes that Stevens would have paid if he had been billed further. This mitigates intent as to Stevens and belief in existence of a crime on the part of the key prosecution witness, Allen.

There is some salvation in that Allen has not been cross-examined yet; but if the defense can show how they would have done things with the opening statement and examination of other witnesses sufficiently differently, they have a heck of an argument.

If I were Stevens’ attorney, I would already have had the junior members of my team combing the daily express court transcripts for instances in the opening statement, and with every witness that has been on the stand to date, as to how I might have argued and examined differently; specifically with an eye to how the theory of defense itself may have been altered. Might even go back into motions if there is any ground there to plow there.

If the prosecution argues that it is explained by mistake because Stevens demanded a quick trial, I would jam that up their rear. Exercise of Constitutional speedy trial rights does not mitigate due process guarantees and they ought to be humiliated in so arguing. Did they say they were not ready for trial because they needed more time to comply? No. By arguing that nonsense, the prosecution only looks worse.

It will be fascinating to see what remedy for the prosecutorial misconduct Judge Sullivan imposes. And, as Christy noted earlier, there has been other misconduct that the judge already was not happy about.

  1. Elliott says:

    The fix is in, no wonder he wanted a speedy trial. He wanted a BushC Justice Department to try him, not a real one.

    Stinks to High Heaven.

  2. WilliamOckham says:

    Wow. This sure looks like an attempt to get ‘good government’ cred by prosecuting Stevens while ensuring that he’ll never serve a day in court. The Bush DOJ sure has gotten good at at ‘aw shucks, we’re just human’ excuse.

  3. NelsonAlgren says:

    Is this the same Sullivan that was Ollie North’s lawyer in front of Congress? is there anyway for charges to be refiled once Obama becomes President? I wonder what that fraud named Cass Sunstein would say about this.

  4. Arbusto says:

    Christy is running a parallel post on fld. I found this on TPM by blogger old33:

    No. The lead prosecutor – Brenda Morris – is not a right-wing hack. She’s a career prosecutor who joined the Department in 1991, and has worked her way up through the ranks.

    Exactly what a federal prosecutor should do.

    Here’s her bio…she also teaches at Georgetown University School of Law.

    Professor Morris is a career prosecutor who began as a Assistant District Attorney in the New York County District Attorneys Office under Robert Morgenthau. Her experience in New York proved to be fertile training ground where Professor Morris honed her skills as a trial attorney by successfully prosecuting hundreds of street crimes and winning over forty trial victories. As part of her federal service, Professor Morris has been selected to instruct on white-collar statutes, including conflict of interest, and investigative techniques to international audiences consisting of prosecutors and law enforcement in Katmandu, Nepal; Dhaka, Bangladesh; and Bucharest, Romania.

  5. scribe says:

    “No one could have foreseen that this information would have been needed.” Besides, when prosecutors do disclose exculpatory evidence to the defense, like in Jawad’s kangaroo court at Gitmo, they get ordered to see a shrink for a mental status examination.

    So, what’s a Regent/Jesus/Liberty grad to do? Let alone think?

  6. Teddy Partridge says:

    Gosh, I just can’t imagine the Bush Justice Department screwing up a case against one of the most powerful GOPs in the Senate, can you?

  7. pinson says:

    if I were the judge I would bounce the entire indictment with prejudice.

    Me too. Obviously, Ted was on the take. But he and the wife did pay off quite a few bills from Veco, and he repeatedly asked when he’d be getting another invoice for the renovations. The only question at this point is whether the Justice Department deliberately brought and threw the case as some kind of reverse jujitsu show trial. Some kind of “see, it looks like all GOP legislators are crooked, but they’re not really!” Incompetence doesn’t really begin to describe the stinkitude at play here.

    • DefendOurConstitution says:

      I ca see the headlines (at least on Fox and probably on most tradMed) if judge declares mistrial: “Stevens Cleared of All Charges”

  8. JimWhite says:

    What are the chances Morris was set up? Could someone working for her (well, working for Mukasey but assigned to her) have done the blacking out and withheld other notification without her knowledge? After all, this sounds like basic procedure she would hand off after authorizing release of the interview transcript.

    • Minnesotachuck says:

      What are the chances Morris was set up? Could someone working for her (well, working for Mukasey but assigned to her) have done the blacking out and withheld other notification without her knowledge? After all, this sounds like basic procedure she would hand off after authorizing release of the interview transcript.

      That’s exactly what occurred to me half way through the post and that led me to pull my tinfoil hat out of the drawer and carefully adjust it for full cranial coverage.

      • JimWhite says:

        Aw, crap! From the McClatchy quote bmaz put in his update:

        Brenda Morris, equally angry, had this response: “He’s getting a fair trial, believe me. You’re getting a great fair trial.”

        Now it looks even worse. It looks to me more like the dark side has turned another career person. The cleaning up of The Justice Department will take more than a generation.

        Time to invest in tinfoil stocks.

  9. DefendOurConstitution says:

    Sure looks like Monica Goodling’s hiring practices (party over competence) are coming home to roost.

    While I am more inclined to think they are throwing the game on purpose, it really could be just another example of rampant incompetence in the Bush Administration.

    The question is can this be taken up by a competent prosecutor (at this point after election) or will it become a case of double jeopardy where Stevens is in the clear for good?

  10. Ishmael says:

    I’ll play prosecutor (for a change!) Obviously, discrediting Allen is key to Stevens defence, but in any of the other statements that Allen made and may have been turned over to the defence was the same (or similar?) point made? After all, part of the prosecution’s theory of the case was that Stevens made a point of asking for bills to cover his butt and that Veco played along with this kabuki. Did the prosecutors bring this matter up on direct, when the defence could have crossed on it even without the statement? I can’t explain the blacking-out of the exculpatory part of the statement, but it sounds like a mistrial could be avoided by disclosure, recess, and recall of the witness if the defence wants it.

    • bmaz says:

      Allen still on the stand, and hasn’t been crossed yet; so the govt. may have a glimmer of hope.

      Jim White – yes that is quite possible. Disclosure are usually handled primarily by junior trial team members and, at best, reviewed on the way out by the lead.

    • bmaz says:

      well, I tell you what, “justice” here calls for at least a mistrial if you ask me, if not outright dismissal. Justice works both ways, and the brutal truth is that it sometimes mandates a result you don’t want as to an individual defendant. The integrity of the process, and due process, is far more important than freaking Ted Stevens. That is the way it is supposed to be and you have to demand that if you really believe in the constitution and the justice system.

  11. Leen says:

    Robert Fisk rips it up on Democracy Now today. Talking about Iraq, Afghanistan and the “crusades” that OBL warned people in the middle east about.

  12. BoxTurtle says:

    I’m having trouble here with this passage:

    The new evidence involved an interview that had been turned over to the defense, but the key part of what Allen said — that the couple would pay if they had been sent a bill — had been blacked out.

    This says to me that this was NO accident. Whomever blacked that out knew darned well that it was Brady evidence.

    I don’t normally go looking for black helicopters, but I think I want a look into the finances of whomever did that redaction.

    Boxturtle (Much as I believe Stevens is guilty, if no Black helicopter is found this case should be tossed)

  13. Leen says:

    Obviously I know very little about the law…but..does a prosecution team intentionally do things like this so that the case is dismissed?

  14. radiofreewill says:

    If this turns out to be Incompetence, it certainly seems like a proper reason to fire a US Attorney.

    This is a High Profile Case of a sitting US Senator – in the midst of a re-Election bid – accused of Corruption.

    This wouldn’t have happened on Fitz’ team…

  15. Ishmael says:

    Ughhh. Thanks for the update, sounds like the judge hated my arguments that the late disclosure (suppression?) could be cured, although he did not close the door on that possibility. Agreed, if the defence can show a long laundry list of tactical decisions that could have been altered, the judge may give a mistrial. However, I still think it is more a case for sanctions than a mistrial/dismissal if the defence had the same information available to it in other formats.

  16. Hmmm says:

    Uhm, a few basic questions, because this all sounds very weird to my hobby lawyer ears. Was defense counsel present at Allen’s deposition in the first place? (If so, they had the info all along.) Who did the redaction? Might it have been done at Allen’s lawyer’s demand, rather than at the prosecutor’s preference? (If so, that would reduce prosecutor’s responsibility.) Was the redaction questioned/challenged by the defense when they first saw the transcript? (If so, defense had boatloads of time to raise the issue sooner.) When and how did the unredacted version show up and start making its way towards the discovery train? (If prosecution was cheating, how unusually inept to serve up evidence of same at this juncture.)

    • Hmmm says:

      Ah, never mind, I see it was an FBI interview transcript, not a deposition transcript, so counsel would not have been present.

    • bmaz says:

      This is a criminal case, not civil. There are no depositions. The interview was done by and FBI agaent and never disclosed until the time of trial. Allen’s lawyer had nothing to do with it. It all happens at the time of trial; in fact in federal criminal cases, the prosecution is not obligated to disclose witness statements until after the witness has testified on direct. Except where the information is exculpatory as it is here. Again, this is not a civil case, those arguments are completely inapplicable here.

      • Hmmm says:

        Hi bmaz, thanks much for ’splaining me. I would still want to know who did the redaction — FBI vs. prosecutors — and where the unredacted version came from. From your description of the process I guess the most consistent explanation really would be that the redaction happened at the prosecutor’s office, and the unredacted version came from the FBI. In which case, yeah, I smell a Mukasey Mole in the prosecutor’s office.

        (And it’s awfully nice to be back, thanks much. Been buried in conference season at work, traveling everywhere to play the grey eminence while chairing meetings/sessions etc. One last big convention push this weekend, and then I’ll be back for real.)

  17. Mason says:

    This failure to disclose evidence material to the defense is unusual because the exculpatory statement was provided to the defense in discovery, however, it was blacked out. Who blacked it out and why did he or she do it? If I were representing Stevens, I would want to know the answer and, I suspect that the Assistant U.S. Attorney (AUSA) also wants to know the answer.

    Was the AUSA present when the witness was interviewed? Did she know about the statement. If not, how did she find out about it? Does her copy of the statement also have that statement blacked out? If so, when did she ask the agent who prepared the report to tell her what was blacked out and why? I can’t think of a valid reason why an agent would black out a statement in a report to keep the AUSA in the dark about an exculpatory statement because the Brady rule requires the government to turn over all exculpatory evidence in its possession, custody, or control and the Supreme Court has interpreted this requirement to include all of its agents, regardless of whether the AUSA knows of its existence.

    Since the witness is still on the stand, the defense can cross-examine him about it, however, I believe the government unexpectedly sent the contractor who did the work back to Alaska without putting him on the stand. Did the government decide not to call him because he would hurt its case by testifying in a manner that is consistent with the blacked-out statement?

    Judges rarely dismiss cases mid-trial because errors like this usually can be corrected by granting a short continuance. I’m not expecting a dismissal at this point, but I do believe the trial might veer off into a mini-trial for awhile, probably out of the presence of the jury, to find out the answers to the questions that I posed above because an effort to hide exculpatory evidence usually is motivated by fear that the case is too weak to convince a jury. Defense counsel is going to want to investigate and find out everything that constitutes the basis of that fear.

    • bmaz says:

      I would expect an evidentiary hearing may be in the offing; we will know shortly. Court reconvenes in seven minutes. It is not just this witness (Bill Allen), however, the defense may be able to show the entire defense case to date has been materially damaged. If the judge buys that, the only two options are mistrial or dismissal.

    • Styve says:

      Is there a motion that could be presented/made to reveal communications between the DOJ, the AUSA and the Defense counsel, because this sounds like the prosecutors are intentionally throwing the case?

  18. Mary says:

    This has been intentional by someone (why would you black out the info on willingness to pay if billed if not intentionally) and really it is just a question of was it a reverse fake to help out Stevens or someone running the show horribly, horribly badly.

    I’m not really that sure that it matters which. Morris can blow smoke all she wants – that is NOT how a fair trial is run. Of course, working for the DOJ, I can see why no one there has any working recollection of how a fair trial works.

  19. dude says:

    This is lawyering by the Department of Just Us. I agree with those who believe this was an “intentional screw-up”. And 6 months from now, I want to know where each of the prosecution lawyers are working and what their salaries are.

  20. Mary says:

    OT – FBI bars participation by two agents in NOVA documentary.…..telli.html

    They were willing to go on camera and discuss their knowledge of CIA actions in deliberately withholding intelligence prior to 9/11 – knowledge related to their work in the CIA run Counterterrorist Center. Some of that story has already been told through other source’s, including Wright’s, The Looming Towers .

    But there was a little something else they wanted to mention as well. Pressure put on them to lie about it all when the Inspector General investigation took place.

    “There was pressure on people not to disclose what really happened,” said sources close to the IG investigation.

    Rossini, in particular, is said to have felt threatened that the CIA would have him prosecuted for violating the Intelligence Identities Protection Act if he told the IG investigators what really happened inside the CTC.

    CIA officials were in the room when he and Miller, as well as a sympathetic CIA officer, were questioned.

    …the FBI agents suddenly couldn’t remember details about who said what, or who reported what, to whom, about the presence of two al Qaeda agents in the U.S. prior to the 9/11 attacks,

    The agents did later manage to get the real story told in an internal FBI investigation:

    the agents provided the bureau with unadulterated versions of their CTC experiences, including orders they were given by the center’s then-Deputy Director, Tom Wilshire, to withhold intelligence about the movement of al Qaeda operatives into the country from the FBI.

    Still, the FBI would just as soon they not make it to NOVA and chit chat to a more national audience.

  21. LabDancer says:

    I don’t want to point to anything written here by folks who can honestly say IANAL, but the lead prosecutor’s background, as well as what she is reported to have said in the direction of the defendant Stevens, is at the very least ambivalent, and [not being there to see and hear is very limiting] actually suggests she is perfectly aware of what has gone on here.

    I’m guessing […], but it strikes me there is more than one way to say what she has been reported as saying EG another would be: Well, it’s pretty clear Senator STEVENS at least has been able to get a “fair” trial; I only wish the same could be said for the GOVERNMENT! Or a worse EG: It’s clear the DEFENDANT’S right to a “fair hearing” isn’t being abrogated here; but I’m getting the sense that he’s not the one on trial here: I am!

    This next part might seem way OTT, but I’ve actually had it happen, and more than once: where someone on the opposing side determines to play fast and loose with evidence [and in this context, I would include evidence as to what was disclosed, or even the form in which the disclosure was made]. This possibility would be in addition to what bmaz referred to, quite properly, being that it’s far from unusual that the physical steps involved in providing disclosure, or some of them, are left to juniors, or even clerical workers.

    Let’s assume the prosecutor determines to have some disclosure hand-delivered by courier, so as to secure a receipt. She, or he, typically would review the disclosure to be enclosed with the delivery, and dictate a cover letter that refers to the enclosures [We saw several such letters in the trial of Libby; again, they are more the rule than the exception.] Then when the letter is ready for signature, the prosecutor [typically] would sign it and leave on the desk of her or his secretary [or clerk ON THAT CASE, which often happens with prosecutors just in town for the conduct of the trial], or in the appropriate office worker’s “out” basket for deliveries – and, at least in my own experience, with no particular regard to whether the package is sealed before being put there.

    Now in that scenario there is lots of room for mischief before the package gets in the hands of the firm where the defendant’s trial lawyer is working. If that were to happen, very often a defending lawyer will write or call back on the subject of the redaction, based simply on there being no mention of it in the cover letter. Of course, if defending counsel were to see the redaction and note the lack of any mention of it in the cover letter, the defending counsel might well consider keeping his [or her] yap shut; it’s borderline, and usually all it gets is a recesss, and as often as a given judge may be as least as hard on defending counsel for trying to take advantage, so there’s risks involved.

    Moreover, so long as defending counsel is aware of the inability of the prosecutor to gainsay the possibility of the redaction having occurred in the prosecutor’s office, I can’t see what would forestall the accusation even where unfounded.

    And it may not even be known to defending counsel to be “unfounded”.

    On one prosecution I was on a goodly number of years back, during a break court security caught one of the defendants attempting to pass a powerful magnet over the reel-to-reel tapes used to memorialize some wiretapped calls critical to the government’s case, on some notion of his counsel trapping the custodian with not being able to verify the accuracy of the transcription [Sounds stupid, but lots of serious criminals are familiar with the general idea but not the nuances of things like chain of custody and forensic analysis; and quite frankly there are judges who are not much if any further ahead of them]. Now, you might think the mastermind kept his cock-eyed scheme to himself and would never have shared it with- or cooked it up with- his very experienced lawyer; and indeed that’s what I assumed for almost a decade after- until the lawyer and his by-then ‘paroled’ client, who was at that point said to be ‘associated’ with the lawyer in what looked a lot like a private investigator capacity [without any licence] were jointly indicted, and later convicted, on an elaborate scheme best described in the terms of the indictment: assault, kidnapping, extortion, fraud, all while possessing and using stolen handguns; and at the subsequent disbarment proceedings, which were actually the subject of a trial [!}, there was evidence led of the two of them having falsified or participated in the falsification of evidence in a number of cases over the ensuring years. [At various times over the last two decades, at least, the Boswash corridor has been [sorry] awash with such associations; indeed, the Hartford prosecutor on the CIA tapes case made his bones on some of the nastier ones.

    So: an awful lot of things are possible here; and I’m not inclined to foreclose any of them.

    • bmaz says:

      This judge has had repetitive disclosure issues with these prosecutors on this case, not to mention an issue with them shipping a witness under subpoena, by both the government and the defense, back to alaska without notifying the defense OR the court. Judge is not a real happy camper, and the totality of bad circumstances occasioned by the government is starting to look pretty bad.

    • dakine01 says:

      It went up at emptywheel @ 10:19 FDL time (aka PDT) then was cross-posted over to the front page at the Mothership @ 3:20.

      This is a true partnership across the board.

  22. bmaz says:

    BREAKING NEWS from Reuters:

    A federal judge on Thursday rejected a request by Republican U.S. Sen. Ted Stevens of Alaska to dismiss the charges or declare a mistrial.

    U.S. Justice Department prosecutors admitted a serious mistake had been made, but had urged the judge to allow the trial to go forward. They said the oversight was not serious enough to warrant dismissing the case or ordering a new trial.

    The judge sided with the prosecutors in rejecting the defense request, but said he had lost confidence in the ability of the prosecutors to turn over helpful evidence to the defense.

    U.S. District Judge Emmet Sullivan said he would adjourn the trial until Monday to give defense lawyers time to review new information that he ordered the prosecutors to turn over.

      • bmaz says:

        Sucky decision. Glad Toobz is still in the dock, but every now and then, judges ought to actually enforce remedies on blatant due process violations. My guess is it will be renewed with a better fleshed out argument at the close of the government’s case in chief.

        • Ishh says:

          Better than a dismissal though, right? The essence being that the violation doesn’t preclude Toobz getting a fair trial?

        • bmaz says:

          I would actually have rather it been dismissed. When the prosecutors never face consequences for their misdeed, they keep committing more and bigger ones. This is the most dishonest and unethical DOJ in history, and they never are held accountable. It is shameful, they deserve tough sanctions of some kind; but they apparently received none whatsoever. Total BS.

        • Ishh says:

          bmaz, do you lend any credence to the theory that this was intentional, for the express purpose of having the case dismissed?

        • bmaz says:

          Credence; yes. Proof as of yet, no. Even the judge stated that, at best, it was grossly reckless conduct and unbelievable. The question is knowing who and where the intentional conduct resides. It may not be the lead prosecutor, although she is responsible for her team just like a ship’s captain. But this isn’t the only shaky thing, it is repetitive conduct in this case. There should have been some sanctions; fines, dismissal of a couple of counts most affected by this evidence, disallowance of Allen as a witness for the prosecution – something. To just let them skate is unconscionable.

        • rosalind says:

          hans van spasky begs to differ:

          Spakovsky claims that the Justice Department under Obama would be “partisan and politically-biased”.

          do these jackwads have their capacity for shame surgically removed?

        • Hmmm says:

          Whew. Though given the Alaska climate at the moment w/r/t outside fuckery, I would have been pretty surprised by a dismissal.

    • bobschacht says:

      So, will someone ’splain this to me, please? After all, IANAL.
      So no mistrial.
      The Bush DOJ is attempting (half-heartedly?) to prosecute an incumbent Republican senator at a time when Democratic control of the Senate is razor-thin.

      What would we expect this Bush DOJ to do in such a case?

      Bob in HI

  23. anonosassin says:

    This was a deliberate sabotage of a case the Justice Dept never wanted to bring in the first place. You’d have to be a moron to doubt that. Every first year law student knows about Brady material. In a case so high-profile, a mistake of this nture would never be made by accident. If the judge orders a mistrial with prejudice, the corrupt Justice Dept gets exactly what it wants, another crony getting off the hook. A dismissal without prejudice to re-file would be the more appropriate response to a deliberate proscutorial sabotage of this nature. The issue is, where would be the resulting prejudice to Stevens ability to defend himself in the second trial? I really don’t see any in practical terms. Theses Bush people should all be killed, after torture IMHO.

    • bmaz says:

      Well, I just may be a moron. Just because there was an intentional Brady violation does not mean sabotage; in fact the implication would almost always be they were trying to hide weakness in their case so they could win and convict, not sabotage. I think your statement is a might ill taken in that regard, although I share your frustration and agree that this occurred with knowledge of at least some, if not all, of the prosecution team.

    • Mason says:

      Double jeopardy attaches after the jury is sworn in a jury trial and that means Stevens has a right to have this jury decide his case. If the judge were to declare a mistrial based on deliberate prosecutorial misconduct to abort a trial going badly for the government, the Double Jeopardy Clause would bar a retrial. If I were representing Stevens, I would spend most of the weekend putting together as much evidence as I could find to make the requisite showing. Failing that, I’d put the government on trial.

      • bmaz says:

        Well, I dunno. If the defense moves for, or does not object to, the mistrial, double jeopardy does not preclude retrial. And Brendan Sullivan moved in the alternative for dismissal and, if not dismissal, mistrial; so unlikely that retrial would be precluded. Dismissal would be finite though. And I agree about putting the government on trial, in conjunction with strong not guilty/lack of mental state.

  24. Hmmm says:

    My 61 was intended as a reply to my own 57, and coincidentally crossed with 60.

    Thanks bmaz for the venue correction.

    (Sorry for all the comments, I drank a mocha.)

  25. urizon says:

    Wow. You don’t think the prosecution would commit deliberate malfeasance, do you? Not with the ranking member of the senate GOP with his ass on the line, and an idiot daughter of the same state poised to (perhaps) be a heartbeat away from the presidency?

    Nah. Nothing like that could ever happen, not with the current Justice Department — an agency which of late has done nothing but demonstrate the highest of ethical standards.

      • bmaz says:

        That’s nice she’s sorry. They always are. Unethical pricks. There should have been sanctions. To me, it is not a “phew”. This is outrageous. The concept and health of justice and due process is far more important than this one man and one case.

  26. pdaly says:

    I’m in agreement with those above whom suspect that the (accidental?!) withholding of exculpatory info was an attempt at throwing this trial.

    I’m reminded of the bizarre actions of TSA lawyer Martin in the 2006 Moussaoui trial when Martin was caught coaching federal witnesses, ostensibly to achieve a Moussaoui conviction. Her actions forced Judge Brinkma to suppress airlines’ travellers data from public view. How convenient for the government and airlines, considering many 9/11 families were almost allowed possession of those thousands of interviews with which to pursue their civil cases. Since the federal witnesses were potentially tainted, their information was kept out of the public domain.

    Martin’s actions were publically repudiated and rightly so at the time, but maybe she did her job well; afterall, here’s some detail of her prior work experience per the LA Times:

    “In this sea of government attorneys and agents who have assiduously played by the rules, Ms. Martin stands as the lone miscreant,” the prosecutors wrote.

    Martin, 51, a onetime airline attendant who found a second career as a lawyer, had worked for the FAA since the early 1990s. Her first big case was the Lockerbie trial, in which the families of the victims in the Libyan terrorist explosion aboard Pan Am Flight 103 sued the airline for negligence.

    Her job then was to protect government secrets – information about airline security – from entering the trial’s public record. By all accounts, she did her job zealously.

    “Her role was to make sure names, dates and places that would be dangerous if publicized were kept out of view,” said James P. Kreindler, a New York lawyer who represented families in the case. “For 13 weeks, she was in the courtroom every day. Every so often she would ask the judge to please clear the courtroom.”

    Moving from the FAA to the newly formed Transportation Security Administration, Martin did civil work and had little or no trial experience, former colleagues said.

    “She spent over a decade fiercely protecting from disclosure sensitive security information,” said one former co-worker who spoke on condition of anonymity because, he said, he did not want to publicly criticize Martin. “That’s her niche, to represent her agency, to shield their classified information. She served the niche well, but often at the expense of collegiality and professionalism.”

    In the Moussaoui case, Kreindler said, Martin’s role “was as a traffic cop scheduling appearances. She’s not a trial lawyer,” he said. “Her role was to get people there at the right time.”

    Or then again, perhaps, maybe, quite (im)possibly ‘mistakes were made’

  27. anonosassin says:

    In response to bmaz #64:

    I don’t think you’re a moron, I think you are being a defense atty, and I would ordinarily agree with you about remedy enforcement. And, as I recall from long ago, a Brady violation normally calls for dismissal. But that case law assumes an honest prosecutorial team, not the blatantly politicized monster the Justice Dept. has become under Bush. In this circumstance, I would rely on the judge’s duty to act justly. As is, I think there will be an appeal anyway. Justice can only lose when the game is fixed. I wish I never became a lawyer.

      • anonosassin says:

        That’s what I mean. In some ways, it would be less painful to be ignorant of the way things are SUPPOSED to work.

    • Hmmm says:

      I wish I never became a lawyer.

      That’s my “wow” comment of the day.

      It seems to be that in some sense, to be a lawyer is to become an instrument of one power or another. Notwithstanding the right of every party to an effective advocate. It must be an awful responsibility to have to choose “which side are you on?”

      • anonosassin says:

        You’re right that lawyers should wield a lot of power, the power of the law. As a self-confessed cockeyed idealist, I always wanted to wield my power on behalf of little guys who had been abused by big guys. But the system is so broken from top to bottom, and the lying and rule-breaking so pervasive and blatant, that I quit after a few years and became a market trader. On the premise that at least in the market, accuracy and rationality would always prevail. Now that the govt has decided to pollute market theory as well, I am giving serious consideration to refining my personal ambition to being able to catch one fish per day in Belize (only half-joking). But a friend advises me that there may not be any fish left there. Becoming a revolutionary would be appealing, but I’m pretty old and feeble now. Suggestions?

        • Hmmm says:

          Actually I do have a practical suggestion for you. Pick a relatively clean industry that you know something about, and get involved in its technical standards development bodies. Bit political sometimes, but at least it’s rule-based, and about as clean as things ever get in the real world. Works for me, at least mostly.

          Alternatively, get involved in the non-profit world at the board or organizational development level.

        • anonosassin says:

          Thanks for the suggestions, but I don’t think I’m ready to completely give up on the idea of the fish. I think I’ve dealt with enough detail for one lifetime.

        • bmaz says:

          My suggestion is you take me with you.

          Crikey, I don’t care who I represent, good or bad guys; what i care about is that there is sufficient fundamental fairness and due process that something resembling the appropriate thing results. That is fairly rare these days.

        • anonosassin says:

          We are together on that, but fairness and due process seem to have become extinct. Leaving me feeling either like a chump, or like killing somebody (or many somebodies). Hypothetically speaking, of course. Cuz I’m not a complete idealist lol.

      • bobschacht says:

        The way our adversarial system of justice works, lawyers work as hired guns– for one side or the other. And you don’t get to choose which side, except by refusing to take a case.

        Congress is theoretically a different matter: If you’re a lawyer for a Congressional committee, your job is to discover truth so that Congress can write appropriate laws. But even there, the adversarial system inserts itself, because chances are there will be party loyalties involved. Of course, Congress critters are supposed to “rise above” partisan influence, but don’t tell that to Karl Rove.

        Of course, once upon a time, in a land that now seems far away, there was a national department of justice that was supposed to serve the interest of the people– the common good. But that seems like such an Old School idea, now, doesn’t it?

        Bob in HI

  28. MarkH says:

    Gosh, I just can’t imagine the Bush Justice Department screwing up a case against one of the most powerful GOPs in the Senate, can you?

    The judge should seek to review the prosecution’s notes, e-mails, etc. It’s pretty clear they wouldn’t have done this if there wasn’t authorization and there’s likely records of that. Just like the USA firings and all the other corruption, it’s in their internal e-mails and other records.

    The prosecution should offer to let them look at anything and everything. If they truly made a mistake and want the judge to know that, then they should say ‘look at everything. look at all the records. review to your heart’s content.’

    One caveat: don’t think they’ll let you see everything. You can dig forever and not get to the bottom. That’s the way they work.

    If it were me I’d say look at my elementary school records, my college transcript, my CIA file, my FBI file, my dental records, my medical records, etc. As the Sting song goes, you can read my CV and you still won’t know me.

    But, at least the judge should peek.

  29. Bluetoe2 says:

    Really, who is surprised that a U.S. Attorney for Karl Rove’s Justice Department would throw one for the team?

  30. Mary says:

    56 – I agree. And the kinds of sanctions handed out should be the kind that, whether it was sloppy/incompetent/sleazy or intentional to give the defense the out, the lawyers involved should pay heavily enough that they won’t really feel like engaging in either approach in the future.

  31. bmaz says:

    From Carol Leonig at WaPo:

    “Although the court is persuaded there is a…violation, the court is not persuaded that dismissal of the indictment or mistrial is the appropriate remedy,” said U.S. District Judge Emmet G. Sullivan. But he added that the government’s actions had broken his trust in the prosecutors. and he ordered them to give Stevens’ lawyers copies of all witness interviews.

    “The court has no confidence in the government’s ability” to meet its obligations to ensure a fair trial,” he said.

    “I want an answer,” the judge told lead prosecutor Brenda Morris. “How does the court have any confidence that the public integrity section has any integrity?”

    No evidence of any sanctions whatsoever. This is a good article though, worth reading if you are interested.

  32. DWBartoo says:

    If there is deliberate Prosecutorial misconduct, then I should imagine the Judge would not look kindly upon it. Even if the trial goes forward, this is not a ’slap-on-the-wrist’ situation, there should at least be a visit to the cloakroom …

    What will Judge Sullivan do? I should think Professor Morris might have ‘looked into’ the situation before asserting that Steven’s was getting a ‘fair’ trial.

    Prosecutorial malfeasance OUGHT to be one of the most heavily ‘punished’ destructive behaviors in the courtroom.

    And, if such malfeasamce was orchestrated or ‘encouraged’ from ‘outside’ the Prosecution ‘team’, then there needs to be a follow up to establish such fact and pursue, very seriously, those involved.

    I am not holding my breath in anticipation.

    The law is being made mock of and the legal community had best decide just how much Bull Shit they are willing to tolerate, explain that to the rest of us, (and themselves) and acknowledge that the ‘rule of law’ is, at best, a sometime thing, and further, that the quality of ‘justice’ that most people receive is directly proportional to the size of their wallet and how well they are liked by those in power.

    Is there an attorney in this country, anywhere, who ‘believes’ they can dispute the reality of these assertions? Bring ‘em on.

    Like all things the LAW is a ‘work in progress(?)’ and subject to the visititudes of fate. At present, however,it runs the very real possibilty of becoming a joke.

    I do NOT say that happily, but with great despair, I do not say that cynically, but because. I. care.

    In a democracy, when it is under severe and deadly threat, should not lawyers be among the first in the streets? I can think of a somewhat recent example in another country, far more brutal and unstable than our own, where the lawyers actually stood (at some considerable risk to themselves, one might imagine) against tyranny AND for ‘the rule of law’.

  33. earlofhuntingdon says:

    No one would accuse the Ashcroft-Gonzales-Mukasey DOJ of taking a dive, would they? Not to protect a senior Senator with a pile of Metro DC, Capitol Hill dirt collected over thirty years. Never happen. Nope. We’ve trained our US Attorneys too well, protected them from political interference so that they can enforce the law without fear or favor.