Judge Sullivan Turns Up the Heat and the Prosecutors Turn Over the Documents

Pomona, Calif.—

In yet another strange twist in this very strange case, the angry judge who presided over the Ted Stevens trial held four federal prosecutors in contempt at a hearing today for refusing to provide documents in response to a court order.

The documents relate to the Department of Justice’s response to the complaint/grievance submitted by FBI Special Agent Chad Joy. That document contains allegations of misconduct by prosecutors and investigators in the Alaska public corruption probe, including some damaging charges about discovery violations in the Stevens trial.

Later in the day, the Department of Justice announced that it had given the documents to the defense as the judge had ordered. Fireworks came first in the courtroom, though.

Judge Emmet Sullivan repeatedly asked if the government had provided the documents, which the Department of Justice had argued were protected from disclosure by the attorney work-product doctrine. The sometimes fiery jurist didn’t buy that contention, and he sure wasn’t having any of it when the government lawyers told him they hadn’t turned over the documents.

“That was a court order,” he said. (The Associated Press reported that he “bellowed”). “That wasn’t a request….Isn’t the Department of Justice taking court orders seriously these days?”

Judge Sullivan said the prosecutors’ response in court was “outrageous for the Department of Justice—the largest law firm on the planet.”

Saying that he didn’t want to get “sidetracked” by a discussion of the penalties to be imposed on the prosecutors, the judge announced that he would wait until the end of the case to hand down the sanctions on the four government lawyers.

You might think that this delay in imposing sanctions would be a problem for the prosecutors, as they have a sword of Damocles hanging over their necks all the remaining time that Judge Sullivan hands onto the case.

But you would be wrong. This judge has a track record of blowing up and saying very harsh things before cooling off and imposing a far less serious penalty than he suggested while his anger was burning white hot. Judge Sullivan seems to understand that it would be a bad idea for him to act immediately on his most intense impulses, no matter how strongly he expresses them.

Having said that, today’s action is both a very big deal and another sign of his fury at the prosecutor’s conduct. As the Associated Press and the Washington Times reported, it is unusual for a judge to hold a prosecutor in comtempt and very unusual to hold a federal prosecutor in contempt. Today, Judge Sullivan pushed it even further out there by holding four senior federal prosecutors in contempt. Those found contemptuous today include William Welch, chief of the Department of Justice’s Public Integrity Section; Brenda Morris, Welch’s principal deputy and the lead attorney at the Ted Stevens trial; and Patty Merkamp Stemler, chief of the Justice Department’s appellate section. (The most junior government lawyer was Department of Justice trial attorney Kevin Driscoll.)

Although the judge gave the prosecutors an extension on their punishment, he has announced that he will look with disfavor on giving the Department of Justice more time in addressing the issues in the case. All the wrangling after the trial will definitely extend how long Judge Sullivan will have the case. Ted Stevens will not be sentenced until at least July—if ever. The judge’s anger at the prosecution’s multiple missteps signals an increased likelihood that the court will order a new trial.

(Hat tip to the Anchorage Daily News and the Legal Times as well as the Associated Press and the Washington Times for coverage of the hearing today.)

Administrative Note—As you can see from the byline, I am traveling. I finished this week an appellate brief (my first for a criminal defendant), and I have more time now to write about the pleadings filed in the Stevens post-trial litigation.