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.
Friday, February 13, 2009
Monday, January 19, 2009
Waiting for More
Anchorage—
I’m holding off on my analysis of the briefing regarding the defense’s Motion for a New Trial, Motion for Acquittal, and Motion to Dismiss Count One or Counts Two through Seven as Multiplicitous, both to see if there are replies from the defense to the prosecution’s oppositions and to see if there’s a refiling based on Chad Joy’s complaint.
On the waiting front, the Department of Justice didn’t file any declarations on Saturday regarding Joy’s complaint as ordered by Judge Sullivan, apparently because the Department appealed the order instead.
I’m betting there won’t be a pardon from President Bush for Ted Stevens, but we should know tomorrow afternoon. Stay tuned.
I’m holding off on my analysis of the briefing regarding the defense’s Motion for a New Trial, Motion for Acquittal, and Motion to Dismiss Count One or Counts Two through Seven as Multiplicitous, both to see if there are replies from the defense to the prosecution’s oppositions and to see if there’s a refiling based on Chad Joy’s complaint.
On the waiting front, the Department of Justice didn’t file any declarations on Saturday regarding Joy’s complaint as ordered by Judge Sullivan, apparently because the Department appealed the order instead.
I’m betting there won’t be a pardon from President Bush for Ted Stevens, but we should know tomorrow afternoon. Stay tuned.
Friday, January 16, 2009
Eve-of-Weekend Roundup on Post-Trial Filings in the Ted Stevens Case
Anchorage, Alaska
No fewer than 15 documents have appeared on the docket of U.S. v. Theodore F. Stevens in the past two days as the motions and orders fly hard and fast. Some of the language in the paperwork fit the characterization of this case given by the Wall Street Journal’s Law Blog, which has called it “Most Theatrical Trial of 2008.”
Highlights:
1. Judge Emmet Sullivan has stayed very angry concerning the Department of Justice’s conduct and explanations for that conduct. The savage tone is apparent in the court’s order today. That order addresses the government’s request for relief from the order issued Wednesday that Attorney General Michael Mukasey personally swear to internal departmental decisions on FBI Agent Chad Joy’s complaint about the handing of the Alaska public corruption investigations and the Stevens trial. The Department of Justice based that Motion for Reconsideration partly on the basis that the government’s lawyers had misunderstood and thereby accidentally misrepresented Joy’s status under federal whistleblower laws. Unfortunately for the prosecution, those statements in the Motion for Reconsideration further stoked the fires of Judge Sullivan’s fury.
Citing the heavy demands on the Attorney General’s time, the judge’s revised order allows the Attorney General to designate other high-level officials to make those personal declarations regarding Joy’s status under the whistleblower laws. Judge Sullivan also relents on his previously imposed deadline of noon today, but makes the new deadline 5 p.m. Saturday (i.e., tomorrow).
It’s not just the highly onerous deadline that’s a shocker in the order, however. There’s the tough language: The court references “a pattern of belated revelations followed by unsatisfactory, and possibly false, explanations from the government in this case….”
Even more ominously for the prosecution, Judge Sullivan’s order quotes more than 30 lines of a defense pleading setting out seven previous examples of alleged prosecution misconduct in the trial that the prosecution characterized as good faith mistakes. Just like it’s good news when the jury sees the case the way a trial lawyer would like, it’s bad news when the judge sees a trial lawyer’s alleged misconduct the way that lawyer’s opponent characterizes it.
Once again, we haven’t heard the prosecution’s full explanation regarding the concerns the judge has raised about the merits of Agent Joy’s complaint (particularly concerning alleged discovery violations in the Stevens trial), the Department of Justice’s handling of that complaint, and the representations made about that complaint in court. What’s striking, however, is that the government’s explanations appear to be digging it in deeper. Contrary to his previous pattern, the judge has stayed mad and gotten even madder. The scorching 13-page order issued today substantially increases the likelihood that the judge will overturn the convictions and order a new trial.
2. Seeing a chance to surf on the judge’s anger at the prosecution, the aggressive Williams & Connolly defense team has ridden that wave over the top. Ted Stevens’ attorneys have filed a proposed discovery plan, basically a list of things that the defense would like to get from the government to help the judge figure out what he should do to remedy prosecutorial misconduct he might determine has occurred. Complete with 33 items of document requests, this wish list doesn’t just represent a kitchen sink approach—Stevens’ lawyers have set up a bathtub big enough to hold all of their requests.
The defense asks, for example, for “[a]ll documents relating to the decision to seek an indictment of Senator Stevens in the District of Columbia instead of the District of Alaska.” Materials about this internal strategy decision are highly likely to be protected from disclosure.
In a more ridiculous move, the defense seeks “[a]ll documents relating to [FBI Agent Mary Beth] Kepner’s relationship with [Bill] Allen, including…any documents suggesting an inappropriate relationship between them, sexual or otherwise.” This request takes Agent Joy’s complaint about a comment Kepner allegedly made about wearing a skirt when Allen testified and raises it to silliness on stilts. If Judge Sullivan makes a factual finding that Mary Beth Kepner had sexual contact with Bill Allen, I will don my swim trunks and my gym shoes, paint the rest of my body in blue and gold paint, and run from Allen's house to the Federal Courthouse in Anchorage no matter what the weather. More generally, it’s harder for the Stevens team to claim that Kepner's relationships with Allen or any other source hurt Stevens' defense because Kepner never testified in the Stevens trial.
That’s it for now. The prosecution just filed its opposition to the defense’s motion for a new trial, and I will review that carefully with the original motion and probably post again on Monday. Happy Martin Luther King Day.
No fewer than 15 documents have appeared on the docket of U.S. v. Theodore F. Stevens in the past two days as the motions and orders fly hard and fast. Some of the language in the paperwork fit the characterization of this case given by the Wall Street Journal’s Law Blog, which has called it “Most Theatrical Trial of 2008.”
Highlights:
1. Judge Emmet Sullivan has stayed very angry concerning the Department of Justice’s conduct and explanations for that conduct. The savage tone is apparent in the court’s order today. That order addresses the government’s request for relief from the order issued Wednesday that Attorney General Michael Mukasey personally swear to internal departmental decisions on FBI Agent Chad Joy’s complaint about the handing of the Alaska public corruption investigations and the Stevens trial. The Department of Justice based that Motion for Reconsideration partly on the basis that the government’s lawyers had misunderstood and thereby accidentally misrepresented Joy’s status under federal whistleblower laws. Unfortunately for the prosecution, those statements in the Motion for Reconsideration further stoked the fires of Judge Sullivan’s fury.
Citing the heavy demands on the Attorney General’s time, the judge’s revised order allows the Attorney General to designate other high-level officials to make those personal declarations regarding Joy’s status under the whistleblower laws. Judge Sullivan also relents on his previously imposed deadline of noon today, but makes the new deadline 5 p.m. Saturday (i.e., tomorrow).
It’s not just the highly onerous deadline that’s a shocker in the order, however. There’s the tough language: The court references “a pattern of belated revelations followed by unsatisfactory, and possibly false, explanations from the government in this case….”
Even more ominously for the prosecution, Judge Sullivan’s order quotes more than 30 lines of a defense pleading setting out seven previous examples of alleged prosecution misconduct in the trial that the prosecution characterized as good faith mistakes. Just like it’s good news when the jury sees the case the way a trial lawyer would like, it’s bad news when the judge sees a trial lawyer’s alleged misconduct the way that lawyer’s opponent characterizes it.
Once again, we haven’t heard the prosecution’s full explanation regarding the concerns the judge has raised about the merits of Agent Joy’s complaint (particularly concerning alleged discovery violations in the Stevens trial), the Department of Justice’s handling of that complaint, and the representations made about that complaint in court. What’s striking, however, is that the government’s explanations appear to be digging it in deeper. Contrary to his previous pattern, the judge has stayed mad and gotten even madder. The scorching 13-page order issued today substantially increases the likelihood that the judge will overturn the convictions and order a new trial.
2. Seeing a chance to surf on the judge’s anger at the prosecution, the aggressive Williams & Connolly defense team has ridden that wave over the top. Ted Stevens’ attorneys have filed a proposed discovery plan, basically a list of things that the defense would like to get from the government to help the judge figure out what he should do to remedy prosecutorial misconduct he might determine has occurred. Complete with 33 items of document requests, this wish list doesn’t just represent a kitchen sink approach—Stevens’ lawyers have set up a bathtub big enough to hold all of their requests.
The defense asks, for example, for “[a]ll documents relating to the decision to seek an indictment of Senator Stevens in the District of Columbia instead of the District of Alaska.” Materials about this internal strategy decision are highly likely to be protected from disclosure.
In a more ridiculous move, the defense seeks “[a]ll documents relating to [FBI Agent Mary Beth] Kepner’s relationship with [Bill] Allen, including…any documents suggesting an inappropriate relationship between them, sexual or otherwise.” This request takes Agent Joy’s complaint about a comment Kepner allegedly made about wearing a skirt when Allen testified and raises it to silliness on stilts. If Judge Sullivan makes a factual finding that Mary Beth Kepner had sexual contact with Bill Allen, I will don my swim trunks and my gym shoes, paint the rest of my body in blue and gold paint, and run from Allen's house to the Federal Courthouse in Anchorage no matter what the weather. More generally, it’s harder for the Stevens team to claim that Kepner's relationships with Allen or any other source hurt Stevens' defense because Kepner never testified in the Stevens trial.
That’s it for now. The prosecution just filed its opposition to the defense’s motion for a new trial, and I will review that carefully with the original motion and probably post again on Monday. Happy Martin Luther King Day.
Wednesday, January 14, 2009
The Ted Stevens Trial Allegations Get Personal and Draw a Highly Unusual Response
Anchorage, Alaska—
The judge looking at the new complaints against the prosecution team in the Ted Stevens trial released a much less redacted version of the FBI agent’s would-be whistleblower complaint disclosing many of the names and details blacked out in the document released last month. Judge Emmet Sullivan also issued a highly unusual order showing substantial anger and skepticism at the Department of Justice’s treatment of that complaint.
The substantially less redacted version of the complaint confirms some of what this blogger had predicted based on the originally redacted version: Chad Joy is the FBI agent who filed the complaint seeking whistleblower protection, and his co-worker—fellow FBI Special Agent Mary Beth Kepner—is the main target of the complaint.
I called the document prepared by Joy “a would-be whistleblower complaint” because the Department of Justice determined early last month that Joy would not receive whistleblower protection. After Judge Sullivan learned today that the Department had advised Joy as early as December 4 that the Department would not give Joy such protection, the judge announced that he had previously thought that either Joy already had the protection or that his whistleblower status was still in limbo pending an internal investigation by the Department.
Judge Sullivan said that he would have treated Joy’s complaint differently over the last month if he had known that the Department had not afforded Joy whistleblower protection. The judge’s obvious anger at the Department’s delays and statements that the court apparently considers unforthcoming led him to issue a strikingly uncommon order for a District Court Judge.
Judge Sullivan directed Attorney General Michael Mukasey to personally sign a declaration under oath to be filed no later than noon this Friday that details all those within the Department of Justice who knew about the complaint, what they knew, and when they knew it. The order also tells the Attorney General to address in the declaration “all decisions, correspondence, and communications” within the Department about Joy’s whistleblower status.
Turning to the substance of the complaint, it’s easier to see what Joy is alleging in the new, less redacted version released today. Joy’s allegations mostly center on his co-worker Kepner and her alleged proclivity to get too close to sources. That closeness supposedly led Kepner to take from sources things of value, including a painting of her dog and house-hunting assistance from someone related to a source. Although that source is unnamed in the complaint, it’s clear that the allegation is that Frank Prewitt’s wife provided the painting. Additionally, Joy charges that a former source of Kepner’s gave her husband a job as a security guard at the Port of Anchorage.
In the category of inappropriate conduct with sources, Joy also asserts that Kepner ate meals with Prewitt (and apparently his wife) at Prewitt’s home, met Prewitt repeatedly with Kepner’s husband present, and gave another source access to Kepner’s own home when Kepner was not present. Joy says he heard that Kepner golfed with VECO Vice President Rick Smith. To curry favor with VECO CEO Bill Allen—a man who apparently likes women in skirts—Joy alleges that the normally slacks-wearing Kepner wore a skirt on a day that Bill Allen testified. More generally, Joy claims that Kepner talked too much to sources and unnecessarily disclosed matters about the investigation and the FBI’s methods.
Joy’s complaint states that he is alleging “serious violations of policy, rules, and procedures as well as possible criminal violations,” but it’s clear that some of his accusations are much more serious than others. If the FBI brass believes all of these allegations, they will at a minimum harm Kepner’s career even though most of those charges listed so far—particularly those not involving gifts—would not directly aid Ted Stevens in his efforts to get a new trial or a dismissal of the indictment. What can more obviously help Stevens, however, are some other claims made by Joy regarding the ways the prosecution provided access to evidence during Stevens’ trial.
Joy alleges that the prosecution team made explicit decisions to hold back evidence from the defense in three instances that caused Judge Sullivan to chastise the government at the trial. Two appear particularly significant. Joy says that Kepner made the decision to withhold what appears to have been a statement of Allen’s. Joy also alleges that Public Integrity Section Trial Attorney Nicholas Marsh “inappropriately created [a] scheme” to use Rocky Williams’ poor health as an excuse to send him back to Alaska from Washington, D.C. on the eve of trial after deciding not to use him as a witness without notifying either the court or the defense, even though the defense had Williams under subpoena as well. (Williams died in Anchorage on December 30, apparently of liver disease.)
I’ll close with three observations/predictions:
1. The judge is pissed (to use the technical term offered by another attorney observer). Judge Sullivan appears to be concerned that the prosecution has pulled a fast one on him. This concern shows up in another order he issued today allowing the defense to use the new information made public today to file by January 26 a revised motion seeking either dismissal of the indictment or a new trial along with additional discovery and an evidentiary hearing.
2. The newly released version of the Joy complaint and the judge’s strong reaction to his discovery of the prosecution’s handling of that complaint have increased the chances that the judge will order a new trial or dismiss the indictment, but those odds have not reached 50 percent. During the five-week trial, Judge Sullivan showed a pattern of blowing up with dramatic rhetoric when he first learns of prosecution mistakes, thinking it over, and then coming back and imposing a well-considered and lesser penalty. The prosecution is under a microscope now, but that doesn’t necessarily mean that the judge will ultimately smash the government, particularly if the prosecution provides satisfactory explanations/denials of the serious allegations in Joy’s complaint. Recall that we haven’t yet heard the prosecution’s side of the story on the merits—expect a hefty filing with long affidavits within the next few weeks from the United States.
3. This controversy over Agent Joy’s complaint may slow down the ongoing federal investigations into public corruption in Alaska, but those investigations are likely to continue unless there is strong evidence of misconduct by prosecutors as opposed to just FBI agents.
The judge looking at the new complaints against the prosecution team in the Ted Stevens trial released a much less redacted version of the FBI agent’s would-be whistleblower complaint disclosing many of the names and details blacked out in the document released last month. Judge Emmet Sullivan also issued a highly unusual order showing substantial anger and skepticism at the Department of Justice’s treatment of that complaint.
The substantially less redacted version of the complaint confirms some of what this blogger had predicted based on the originally redacted version: Chad Joy is the FBI agent who filed the complaint seeking whistleblower protection, and his co-worker—fellow FBI Special Agent Mary Beth Kepner—is the main target of the complaint.
I called the document prepared by Joy “a would-be whistleblower complaint” because the Department of Justice determined early last month that Joy would not receive whistleblower protection. After Judge Sullivan learned today that the Department had advised Joy as early as December 4 that the Department would not give Joy such protection, the judge announced that he had previously thought that either Joy already had the protection or that his whistleblower status was still in limbo pending an internal investigation by the Department.
Judge Sullivan said that he would have treated Joy’s complaint differently over the last month if he had known that the Department had not afforded Joy whistleblower protection. The judge’s obvious anger at the Department’s delays and statements that the court apparently considers unforthcoming led him to issue a strikingly uncommon order for a District Court Judge.
Judge Sullivan directed Attorney General Michael Mukasey to personally sign a declaration under oath to be filed no later than noon this Friday that details all those within the Department of Justice who knew about the complaint, what they knew, and when they knew it. The order also tells the Attorney General to address in the declaration “all decisions, correspondence, and communications” within the Department about Joy’s whistleblower status.
Turning to the substance of the complaint, it’s easier to see what Joy is alleging in the new, less redacted version released today. Joy’s allegations mostly center on his co-worker Kepner and her alleged proclivity to get too close to sources. That closeness supposedly led Kepner to take from sources things of value, including a painting of her dog and house-hunting assistance from someone related to a source. Although that source is unnamed in the complaint, it’s clear that the allegation is that Frank Prewitt’s wife provided the painting. Additionally, Joy charges that a former source of Kepner’s gave her husband a job as a security guard at the Port of Anchorage.
In the category of inappropriate conduct with sources, Joy also asserts that Kepner ate meals with Prewitt (and apparently his wife) at Prewitt’s home, met Prewitt repeatedly with Kepner’s husband present, and gave another source access to Kepner’s own home when Kepner was not present. Joy says he heard that Kepner golfed with VECO Vice President Rick Smith. To curry favor with VECO CEO Bill Allen—a man who apparently likes women in skirts—Joy alleges that the normally slacks-wearing Kepner wore a skirt on a day that Bill Allen testified. More generally, Joy claims that Kepner talked too much to sources and unnecessarily disclosed matters about the investigation and the FBI’s methods.
Joy’s complaint states that he is alleging “serious violations of policy, rules, and procedures as well as possible criminal violations,” but it’s clear that some of his accusations are much more serious than others. If the FBI brass believes all of these allegations, they will at a minimum harm Kepner’s career even though most of those charges listed so far—particularly those not involving gifts—would not directly aid Ted Stevens in his efforts to get a new trial or a dismissal of the indictment. What can more obviously help Stevens, however, are some other claims made by Joy regarding the ways the prosecution provided access to evidence during Stevens’ trial.
Joy alleges that the prosecution team made explicit decisions to hold back evidence from the defense in three instances that caused Judge Sullivan to chastise the government at the trial. Two appear particularly significant. Joy says that Kepner made the decision to withhold what appears to have been a statement of Allen’s. Joy also alleges that Public Integrity Section Trial Attorney Nicholas Marsh “inappropriately created [a] scheme” to use Rocky Williams’ poor health as an excuse to send him back to Alaska from Washington, D.C. on the eve of trial after deciding not to use him as a witness without notifying either the court or the defense, even though the defense had Williams under subpoena as well. (Williams died in Anchorage on December 30, apparently of liver disease.)
I’ll close with three observations/predictions:
1. The judge is pissed (to use the technical term offered by another attorney observer). Judge Sullivan appears to be concerned that the prosecution has pulled a fast one on him. This concern shows up in another order he issued today allowing the defense to use the new information made public today to file by January 26 a revised motion seeking either dismissal of the indictment or a new trial along with additional discovery and an evidentiary hearing.
2. The newly released version of the Joy complaint and the judge’s strong reaction to his discovery of the prosecution’s handling of that complaint have increased the chances that the judge will order a new trial or dismiss the indictment, but those odds have not reached 50 percent. During the five-week trial, Judge Sullivan showed a pattern of blowing up with dramatic rhetoric when he first learns of prosecution mistakes, thinking it over, and then coming back and imposing a well-considered and lesser penalty. The prosecution is under a microscope now, but that doesn’t necessarily mean that the judge will ultimately smash the government, particularly if the prosecution provides satisfactory explanations/denials of the serious allegations in Joy’s complaint. Recall that we haven’t yet heard the prosecution’s side of the story on the merits—expect a hefty filing with long affidavits within the next few weeks from the United States.
3. This controversy over Agent Joy’s complaint may slow down the ongoing federal investigations into public corruption in Alaska, but those investigations are likely to continue unless there is strong evidence of misconduct by prosecutors as opposed to just FBI agents.
Sunday, December 28, 2008
Discovery Discussion--and How Criminal and Civil Cases Differ
Anchorage--
A commenter (thanks, Alaska) asked questions about how discovery works, and I am posting my response here because these questions seem to come up frequently.
Discovery is a process required under American law in which one side gives information on the case to the other side. Discovery rules vary by jurisdiction.
In criminal law, discovery was traditionally one-way: The prosecution gave evidence to the defense, but the defense gave nothing to the prosecution. Recently, however, some jurisdictions--including Alaska--have required the defense to provide some discovery to the prosecution. It is still true, though, that the prosecution provides much more information to the defense than the other way around.
The list of what discovery the prosecution is automatically required to provide under Alaska law includes copies of any written and recorded statements made by the defendant; any papers or documents which the prosecution intends to use at trial; any papers or documents which were obtained from or belong to the defendant; and any material or information which tends to negate the guilt of the defendant as to the offense.
An example of what Alaska law requires the defendant to produce to the prosecution is the name, address, and written report of any expert witness. Another example of the limited discovery from the defendant required under Alaska law is that the defendant must give the prosecution advance notice of defenses including alibi, entrapment, and duress.
As this blog has discussed before, the federal rules for discovery require less discovery from the prosecution than Alaska law does.
The prosecution in criminal cases--whatever the jurisdiction--generally has to provide automatically more information than any party has to provide in civil cases of any kind. There generally is a different discovery process in civil matters such as employment mediations than exists in criminal cases.
There are other differences in the ways that criminal cases and civil cases proceed. Civil cases often drag on a long time, while speedy trial rules keep all but the most serious and complicated criminal cases moving along much faster. Civil cases tend to feature depositions and written requests like interrogatories and requests for production. A higher percentage of criminal cases are tried than civil cases.
After handling both kinds of litigation, I have said that lawyers are always preparing to try civil cases but somehow the trial almost always gets derailed by a settlement or some other resolution sort of trial. Attorneys in criminal cases, however, did not get to prepare as much but are often actually going to trial. This is particularly true with misdemeanors. Lawyers handling felonies--particularly a very well-financed team like the attorneys at Williams & Connolly in white-collar crime cases--often do have more time to prepare more like lawyers in civil cases.
A commenter (thanks, Alaska) asked questions about how discovery works, and I am posting my response here because these questions seem to come up frequently.
Discovery is a process required under American law in which one side gives information on the case to the other side. Discovery rules vary by jurisdiction.
In criminal law, discovery was traditionally one-way: The prosecution gave evidence to the defense, but the defense gave nothing to the prosecution. Recently, however, some jurisdictions--including Alaska--have required the defense to provide some discovery to the prosecution. It is still true, though, that the prosecution provides much more information to the defense than the other way around.
The list of what discovery the prosecution is automatically required to provide under Alaska law includes copies of any written and recorded statements made by the defendant; any papers or documents which the prosecution intends to use at trial; any papers or documents which were obtained from or belong to the defendant; and any material or information which tends to negate the guilt of the defendant as to the offense.
An example of what Alaska law requires the defendant to produce to the prosecution is the name, address, and written report of any expert witness. Another example of the limited discovery from the defendant required under Alaska law is that the defendant must give the prosecution advance notice of defenses including alibi, entrapment, and duress.
As this blog has discussed before, the federal rules for discovery require less discovery from the prosecution than Alaska law does.
The prosecution in criminal cases--whatever the jurisdiction--generally has to provide automatically more information than any party has to provide in civil cases of any kind. There generally is a different discovery process in civil matters such as employment mediations than exists in criminal cases.
There are other differences in the ways that criminal cases and civil cases proceed. Civil cases often drag on a long time, while speedy trial rules keep all but the most serious and complicated criminal cases moving along much faster. Civil cases tend to feature depositions and written requests like interrogatories and requests for production. A higher percentage of criminal cases are tried than civil cases.
After handling both kinds of litigation, I have said that lawyers are always preparing to try civil cases but somehow the trial almost always gets derailed by a settlement or some other resolution sort of trial. Attorneys in criminal cases, however, did not get to prepare as much but are often actually going to trial. This is particularly true with misdemeanors. Lawyers handling felonies--particularly a very well-financed team like the attorneys at Williams & Connolly in white-collar crime cases--often do have more time to prepare more like lawyers in civil cases.
Tuesday, December 23, 2008
A Whistleblower's Complaint Fuels the Defense's Fire
Anchorage—
Ted Stevens just got the biggest Christmas present he will receive this year.
An FBI agent who has worked on the Alaska public corruption investigation has alleged that at least two members of the prosecution team against Sen. Stevens engaged in various acts of misconduct.
The unnamed FBI Special Agent states in a complaint seeking whistleblower protection that “I have witnessed or learned of serious violations of policy, rules, and procedures as well as possible criminal violations.”
The alleged misconduct mostly falls into three categories:
1. Specific acts that prejudiced Stevens in his trial. The complaint charges that one or more federal employees intentionally withheld discoverable materials from the defense and schemed to prevent an important witness—VECO employee Rocky Williams—from testifying after the prosecution determined that his testimony would be unfavorable.
2. Improperly close relationships between federal employees and cooperating witnesses in the ongoing criminal investigations into Alaska public corruption. These allegations include taking artwork, getting help in getting a job for a federal employee’s relative, and accepting house-hunting assistance from a confidential source’s relative.
3. Procedural mistakes in handling paperwork. The whistleblower agent’s complaint includes allegations that the FBI and the Department of Justice’s Public Integrity Section have not properly processed boxes of materials collected during the Alaska investigation.
The allegations appear in a complaint prepared by an unnamed FBI Special Agent to facilitate a request for whistleblower protection against retaliation at work, and the Department of Justice filed the document with the court. The complaint is public because U.S. District Judge Emmet Sullivan ordered it released late yesterday afternoon.
The heavily redacted version of the complaint released publicly does not name either the whistleblower or the people the agent is complaining about. Some insights are available, however, through a close reading of the eight-page, single-spaced complaint.
The complaint says that the whistleblower agent made the complaint in part because a book mentions that FBI agent multiple times. Cooperating witness Frank Prewitt published this September a book about his role in the Alaska public corruption scandal that discusses at length the actions of two FBI agents: Mary Beth Kepner and Chad Joy. The heavily redacted complaint says “_________ drew and provided _____ large original drawing of _________ dog as a gift.” Prewitt’s book says that Kepner told Prewitt that her supervisor had met with her regarding a dog portrait that Prewitt’s wife had given to Kepner as a Christmas present, a portrait that Prewitt’s book says his wife painted.
This whistleblower’s complaint is highly significant. It hurts the prosecution because the charges come from the inside. The whistleblower agent states that the agent has worked for years on the Alaska public corruption investigation (codenamed “POLAR PEN,” apparently because—as the Anchorage Daily News noted—the probe started by looking into private prison lobbying efforts). This complaint is in an entirely different league from dark speculations, innuendo, or fulminations on appeal coming from a team of lawyers. For the defense, this complaint is like having a defector walk into your country’s security service with sensitive secrets. For the prosecution, it’s never good to have a key employee with extensive knowledge of the case switch sides on you and blow the whistle.
The complaint is also damaging to the prosecution because some of the allegations against government agents either mirror the actual charges against Ted Stevens or track the defense’s repeated complaints during the trial. As Judge Sullivan noted in his 29-page order directing the release of the complaint, the prosecution’s proof of Stevens’ guilt at trial included evidence that the Senator had accepted artwork and help in getting a job for a relative. And both during and after the trial the defense has relied on charges that the prosecution had repeatedly hidden the ball to request either a dismissal or a new trial.
Although the release of this whistleblower’s complaint is the best news Stevens had had in a while, we have not heard the government’s response to these allegations. The Department of Justice has presumably been conducting an internal investigation of this complaint, which originated as a document aimed at getting whistleblower protections for an employee. The government’s response to these allegations may include denials as well as aspersions on the motivation of the employee making the complaint.
The defense received an unredacted copy of the complaint last week and has already jumped on it. A new motion for dismissal or—alternatively—a new trial appeared less than an hour after the release of the complaint. The aggressive team at Williams & Connolly had already filed several post-trial motions seeking dismissal, a new trial, and/or an evidentiary hearing. One of the grounds relied upon by the defense motions is a letter from prosecution witness Dave Anderson alleging that the prosecution suborned perjury. (The prosecution has responded at length to deny Anderson’s allegations. The government contends that a person identifiable as former legislator Jerry Ward—the father of Anderson’s girlfriend—has been manipulating Anderson in an attempt to prevent prosecution of Ward.)
Going back to the whistleblower’s complaint, much of the document centers on allegations that at least one of the investigators got too close to a half-dozen sources. Convicted briber and star prosecution witness Bill Allen is the only one of those sources named in the redacted version of the complaint, but the evidence strongly suggests that Prewitt is another of those six.
These allegations raise the age-old conflict between experience and coziness. Spending a lot of time with people will help gain information and trust, and some of that is natural in any situation. On the other hand, certain relationships call for an arms’ length distance—such as that between FBI agent and cooperating witness.
The release of this complaint is rife with implications. It delays the sentencing and appeal process in the case of Sen. Stevens. Given Stevens’ strong interest in clearing his name and the boost that this complaint will give his lawyers’ efforts to do so, the complaint’s release may make it even less likely that he will seek a pardon from outgoing President Bush before January 20th.
Attorneys for others in the crosshairs of the ongoing federal investigation have to be licking their lips with glee. Release of this complaint will likely open the door to more disclosure of the federal agents’ interactions with Allen and other cooperating witnesses like Prewitt. Those already convicted at trials may well add these allegations to their appeals, and those not yet charged might see the probe slow down as the Department of Justice deals with these allegations.
Once again, the complaint offers only one side of what in some places sounds like a list of objections to a co-worker’s approach. Although the release of this complaint is just the latest in a series of self-inflicted wounds suffered by the government in the Ted Stevens case, we will learn a lot about how serious this injury is when the government files its response to the latest defense motion.
Ted Stevens just got the biggest Christmas present he will receive this year.
An FBI agent who has worked on the Alaska public corruption investigation has alleged that at least two members of the prosecution team against Sen. Stevens engaged in various acts of misconduct.
The unnamed FBI Special Agent states in a complaint seeking whistleblower protection that “I have witnessed or learned of serious violations of policy, rules, and procedures as well as possible criminal violations.”
The alleged misconduct mostly falls into three categories:
1. Specific acts that prejudiced Stevens in his trial. The complaint charges that one or more federal employees intentionally withheld discoverable materials from the defense and schemed to prevent an important witness—VECO employee Rocky Williams—from testifying after the prosecution determined that his testimony would be unfavorable.
2. Improperly close relationships between federal employees and cooperating witnesses in the ongoing criminal investigations into Alaska public corruption. These allegations include taking artwork, getting help in getting a job for a federal employee’s relative, and accepting house-hunting assistance from a confidential source’s relative.
3. Procedural mistakes in handling paperwork. The whistleblower agent’s complaint includes allegations that the FBI and the Department of Justice’s Public Integrity Section have not properly processed boxes of materials collected during the Alaska investigation.
The allegations appear in a complaint prepared by an unnamed FBI Special Agent to facilitate a request for whistleblower protection against retaliation at work, and the Department of Justice filed the document with the court. The complaint is public because U.S. District Judge Emmet Sullivan ordered it released late yesterday afternoon.
The heavily redacted version of the complaint released publicly does not name either the whistleblower or the people the agent is complaining about. Some insights are available, however, through a close reading of the eight-page, single-spaced complaint.
The complaint says that the whistleblower agent made the complaint in part because a book mentions that FBI agent multiple times. Cooperating witness Frank Prewitt published this September a book about his role in the Alaska public corruption scandal that discusses at length the actions of two FBI agents: Mary Beth Kepner and Chad Joy. The heavily redacted complaint says “_________ drew and provided _____ large original drawing of _________ dog as a gift.” Prewitt’s book says that Kepner told Prewitt that her supervisor had met with her regarding a dog portrait that Prewitt’s wife had given to Kepner as a Christmas present, a portrait that Prewitt’s book says his wife painted.
This whistleblower’s complaint is highly significant. It hurts the prosecution because the charges come from the inside. The whistleblower agent states that the agent has worked for years on the Alaska public corruption investigation (codenamed “POLAR PEN,” apparently because—as the Anchorage Daily News noted—the probe started by looking into private prison lobbying efforts). This complaint is in an entirely different league from dark speculations, innuendo, or fulminations on appeal coming from a team of lawyers. For the defense, this complaint is like having a defector walk into your country’s security service with sensitive secrets. For the prosecution, it’s never good to have a key employee with extensive knowledge of the case switch sides on you and blow the whistle.
The complaint is also damaging to the prosecution because some of the allegations against government agents either mirror the actual charges against Ted Stevens or track the defense’s repeated complaints during the trial. As Judge Sullivan noted in his 29-page order directing the release of the complaint, the prosecution’s proof of Stevens’ guilt at trial included evidence that the Senator had accepted artwork and help in getting a job for a relative. And both during and after the trial the defense has relied on charges that the prosecution had repeatedly hidden the ball to request either a dismissal or a new trial.
Although the release of this whistleblower’s complaint is the best news Stevens had had in a while, we have not heard the government’s response to these allegations. The Department of Justice has presumably been conducting an internal investigation of this complaint, which originated as a document aimed at getting whistleblower protections for an employee. The government’s response to these allegations may include denials as well as aspersions on the motivation of the employee making the complaint.
The defense received an unredacted copy of the complaint last week and has already jumped on it. A new motion for dismissal or—alternatively—a new trial appeared less than an hour after the release of the complaint. The aggressive team at Williams & Connolly had already filed several post-trial motions seeking dismissal, a new trial, and/or an evidentiary hearing. One of the grounds relied upon by the defense motions is a letter from prosecution witness Dave Anderson alleging that the prosecution suborned perjury. (The prosecution has responded at length to deny Anderson’s allegations. The government contends that a person identifiable as former legislator Jerry Ward—the father of Anderson’s girlfriend—has been manipulating Anderson in an attempt to prevent prosecution of Ward.)
Going back to the whistleblower’s complaint, much of the document centers on allegations that at least one of the investigators got too close to a half-dozen sources. Convicted briber and star prosecution witness Bill Allen is the only one of those sources named in the redacted version of the complaint, but the evidence strongly suggests that Prewitt is another of those six.
These allegations raise the age-old conflict between experience and coziness. Spending a lot of time with people will help gain information and trust, and some of that is natural in any situation. On the other hand, certain relationships call for an arms’ length distance—such as that between FBI agent and cooperating witness.
The release of this complaint is rife with implications. It delays the sentencing and appeal process in the case of Sen. Stevens. Given Stevens’ strong interest in clearing his name and the boost that this complaint will give his lawyers’ efforts to do so, the complaint’s release may make it even less likely that he will seek a pardon from outgoing President Bush before January 20th.
Attorneys for others in the crosshairs of the ongoing federal investigation have to be licking their lips with glee. Release of this complaint will likely open the door to more disclosure of the federal agents’ interactions with Allen and other cooperating witnesses like Prewitt. Those already convicted at trials may well add these allegations to their appeals, and those not yet charged might see the probe slow down as the Department of Justice deals with these allegations.
Once again, the complaint offers only one side of what in some places sounds like a list of objections to a co-worker’s approach. Although the release of this complaint is just the latest in a series of self-inflicted wounds suffered by the government in the Ted Stevens case, we will learn a lot about how serious this injury is when the government files its response to the latest defense motion.
Tuesday, December 9, 2008
Rod Blagojevich Shocks This Blog Back Into Action
Anchorage--
Like the rest of those who care about law and politics, your blogger sits agog at the charges announced against Gov. Rod Blagojevich, Democrat of Illinois. It's been all over the news today--the story of a Governor allegedly so dedicated to selling his office that he essentially put up for auction the U.S. Senate seat vacated by Barack Obama even after Blagojevich had reason to know that the feds were tapping his phones. In the words of U.S. Attorney Patrick Fitzgerald, it was “a political corruption crime spree.”
Hubristic, stupid, insane—commentators’ characterizations are numerous for this man who muses about running for President in 2016 even after he knew key associates were talking to federal prosecutors and he was under a Department of Justice microscope.
This blogger was struck by the similarities of this Illinois scandal with some of what we have seen uncovered in the federal investigations into the Alaska public corruption scandals. Like Gov. Blagojevich, Rep. Tom Anderson--an Anchorage Republican who served in the Alaska State Legislature--appeared to keep committing crimes even after each of them knew the feds were watching. (Anderson had even been a cooperating witness—that is, a person who wires up at the FBI’s direction in phone conversations and meetings with unsuspecting suspects—before backing out on his deal and doing unusual legislative favors for Bill Allen of VECO, the corporation that had paid Anderson tens of thousands of dollars in consulting fees.)
And as occurred in Alaska with several legislators, the federal government apparently has evidence of the Illinois Governor and his chief of staff committing crimes on tape. In both Alaska and Illinois, the evidence was unusual because in many public corruption cases the taped evidence consists of people admitting that they had committed crimes in the past, not of them actually doing it contemporaneously. Such contemporaneous evidence—catching people in the act on tape—shows that the investigation is long-running and that the perpetrators are unusually clueless.
A final irony common to the investigations in both states is a high degree of formal education among the public officials caught. Every one of the five public officials convicted in the Alaska public corruption scandals so far has at least one advanced degree, and three of them have law degrees. Both the Illinois Governor and his chief of staff—also charged today—are lawyers. Blagojevich was a prosecutor and a Member of Congress before he ran for Governor as a reformer in reaction to the record of his predecessor, who now sits in federal prison for bribe-taking and other crimes.
Illinois has a sorry history of public corruption. A number of municipal governments—including Chicago’s—have had unfortunate problems with dishonesty, and the last 50 years has seen two of the Land of Lincoln’s Governors go to prison for crimes committed while in office and a third incarcerated for offenses committed after his term in office. In 1970, $800,000 in cash was found in the hotel room of the Illinois Secretary of State when he died—with some of it stuffed in shoe boxes—a fact some thought odd given that in a lifetime of public service he had never earned more than $30,000 a year. (One politician cracked that “It will take a big man to fill his shoe boxes.”)
This terrible tradition in Illinois seems linked to both the state’s historically lax campaign finance laws and an ingrained culture of corruption that led elites in both political parties to expect that public officials would steal. Alaska would do well to try to avoid both of those contributing factors.
Administrative Note: I’m back in Alaska and back posting. Look forward to discussions of the post-trial motions of Ted Stevens and the pre-trial appeal of Bruce Weyhrauch, among other hot topics.
Like the rest of those who care about law and politics, your blogger sits agog at the charges announced against Gov. Rod Blagojevich, Democrat of Illinois. It's been all over the news today--the story of a Governor allegedly so dedicated to selling his office that he essentially put up for auction the U.S. Senate seat vacated by Barack Obama even after Blagojevich had reason to know that the feds were tapping his phones. In the words of U.S. Attorney Patrick Fitzgerald, it was “a political corruption crime spree.”
Hubristic, stupid, insane—commentators’ characterizations are numerous for this man who muses about running for President in 2016 even after he knew key associates were talking to federal prosecutors and he was under a Department of Justice microscope.
This blogger was struck by the similarities of this Illinois scandal with some of what we have seen uncovered in the federal investigations into the Alaska public corruption scandals. Like Gov. Blagojevich, Rep. Tom Anderson--an Anchorage Republican who served in the Alaska State Legislature--appeared to keep committing crimes even after each of them knew the feds were watching. (Anderson had even been a cooperating witness—that is, a person who wires up at the FBI’s direction in phone conversations and meetings with unsuspecting suspects—before backing out on his deal and doing unusual legislative favors for Bill Allen of VECO, the corporation that had paid Anderson tens of thousands of dollars in consulting fees.)
And as occurred in Alaska with several legislators, the federal government apparently has evidence of the Illinois Governor and his chief of staff committing crimes on tape. In both Alaska and Illinois, the evidence was unusual because in many public corruption cases the taped evidence consists of people admitting that they had committed crimes in the past, not of them actually doing it contemporaneously. Such contemporaneous evidence—catching people in the act on tape—shows that the investigation is long-running and that the perpetrators are unusually clueless.
A final irony common to the investigations in both states is a high degree of formal education among the public officials caught. Every one of the five public officials convicted in the Alaska public corruption scandals so far has at least one advanced degree, and three of them have law degrees. Both the Illinois Governor and his chief of staff—also charged today—are lawyers. Blagojevich was a prosecutor and a Member of Congress before he ran for Governor as a reformer in reaction to the record of his predecessor, who now sits in federal prison for bribe-taking and other crimes.
Illinois has a sorry history of public corruption. A number of municipal governments—including Chicago’s—have had unfortunate problems with dishonesty, and the last 50 years has seen two of the Land of Lincoln’s Governors go to prison for crimes committed while in office and a third incarcerated for offenses committed after his term in office. In 1970, $800,000 in cash was found in the hotel room of the Illinois Secretary of State when he died—with some of it stuffed in shoe boxes—a fact some thought odd given that in a lifetime of public service he had never earned more than $30,000 a year. (One politician cracked that “It will take a big man to fill his shoe boxes.”)
This terrible tradition in Illinois seems linked to both the state’s historically lax campaign finance laws and an ingrained culture of corruption that led elites in both political parties to expect that public officials would steal. Alaska would do well to try to avoid both of those contributing factors.
Administrative Note: I’m back in Alaska and back posting. Look forward to discussions of the post-trial motions of Ted Stevens and the pre-trial appeal of Bruce Weyhrauch, among other hot topics.
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