Tuesday, October 12, 2010

Judge Announces that Prosecutors Will Not Be Punished for Contempt of Court Based on Withholding Documents After the Ted Stevens Trial


The trial judge in the Ted Stevens case has announced that the three prosecutors he had held in contempt of court last year for not producing documents as he had directed in post-trial proceedings will not face punishment for that finding of contempt.

U.S. District Judge Emmet Sullivan had made the contempt finding against the three Department of Justice attorneys during tumultuous hearings after the trial that ultimately led to the collapse of the prosecution and the setting aside of the jury’s guilty verdicts against the defendant.

The judge had made the finding against Brenda Morris, William Welch, and Patty Merkamp Stemler in February of 2009. Morris had been the government’s lead trial attorney as well as the DoJ’s Public Integrity Section’s principal deputy; Welch was then the head of the section; and Stemler—who made the request that triggered the ruling today—was an appellate attorney who had worked on the post-trial proceedings. (The judge had originally added a fourth attorney to that contempt order, but let that junior lawyer off the hook the next day.)

Today's 26-page order refused to vacate the contempt finding issued on February 13, 2009, but lifted the finding as of the time later that same day when the Department of Justice provided to the defense the documents in question. The judge also announced today that he would impose no punishment for the contempt.

Officially, Judge Sullivan issued this order now because Stemler had sought relief from the finding of contempt and because the Justice Department had almost immediately purged the contempt by turning over the documents that the judge had ordered to be turned over. (This purging can happen in civil contempt cases, where the purpose of putting someone in contempt is to coerce that someone to do something; don’t count on the same result in a case of criminal contempt of court.)

Unofficially, two reasons may also explain the timing and substance of this order. Judge Sullivan may feel that the three prosecutors have been punished enough by the stigma flowing from the contempt finding. Additionally, the judge knows that two of the three prosecutors involved in decisions about the trial—Morris and Welch—are two of the six prosecutors under criminal investigation by a special counsel the judge appointed when the Ted Stevens prosecution ended. That criminal investigation focuses on the actions and omissions of the prosecutors in providing evidence to the defense before and during the trial. Judge Sullivan may believe that those six prosecutors under scrutiny will soon face what at minimum seems likely to be a highly critical report from the special counsel. (One of the prosecutors being probed in the Ted Stevens case—Nicholas Marsh—committed suicide last month.)

More generally, the series of events here fits a pattern seen in the trial itself: The judge would explode in court and threaten heavy sanctions when he saw what he considered misconduct before sleeping on it and then going with a softer response.

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