Tuesday, February 24, 2009

The Department of Justice Gets a Little Breathing Room

Washington, D.C.—

The feds got some extra time to respond to the defendant’s Motion to Dismiss. Until today the government’s lawyers had faced a deadline of this Thursday to respond to the lengthy and comprehensive defense request to throw out the case (or at least overturn the jury verdict and force a new trial).

The new team of prosecutors asked the court to give them more time, and the defense did not oppose that request. District Court Judge Emmet Sullivan immediately granted the government’s request. Now there will be a hearing on Tuesday, March 10, at 10:30 a.m. to discuss the status of discovery in the case and set a final briefing schedule.

Without pre-judging the allegations made against some members of the DoJ's trial team by FBI agent Chad Joy and prosecution witness Dave Anderson, the fact that this request from the government came from a new group of lawyers had to help generate the positive response from the defense and the court. We’ll see how long these softer sentiments last.

Administrative Note—It was fun to watch the President’s Address to Congress on TV and then walk outside and see the lit-up Capitol three blocks away.

Monday, February 16, 2009

Prosecutors in Ted Stevens Trial Removed from Litigation Involving Alleged Misconduct

Arcadia, California—

Not even my defense of the government’s Ted Stevens trial lawyers yesterday as not running the worst prosecution ever could keep them on the job.

The Department of Justice has announced that it has brought in a new team of lawyers to handle the litigation relating to allegations of government misconduct before and during the Ted Stevens trial.

The shift appears to be aimed at addressing both the disputes with Judge Emmet Sullivan over release of documents that led to contempt citations for prosecutors last week and the conflict of interest that some of those departing prosecutors had in defending their own conduct regarding discovery.

The new team of DoJ lawyers tasked with handling the post-trial litigation is composed of Paul O’Brien, chief of the Narcotic and Dangerous Drug Section; David Jaffe, deputy chief of the Domestic Security Section; and William Stuckwisch, senior trial attorney in the Fraud Section.

The government attorneys no longer participating in the post-trial litigation include two that were found in contempt of court last week: William Welch, chief of the Public Integrity Section, and Brenda Morris, principal deputy chief of that section. The other four lawyers taken off that post-trial litigation are Public Integrity Section trial attorneys Nicholas Marsh and Edward Sullivan and assistant U.A. attorneys Joseph Bottini and James Goeke.

The same filing announcing the change in counsel also stated that the government was giving documents to the defense regarding FBI agent Chad Joy’s complaint/grievance. The prosecution had previously refused to turn over those documents to the defense on the grounds that they were protected by the attorney work-product doctrine.

Today’s prosecution filing also advised that the government will also give the defense other documents related to Joy’s complaint no later than Tuesday, February 24.

The nuggets in the government’s filing today were first picked up by Politico.com’s John Bresnahan, a stalwart journalist I would see as a fine reporter even he didn’t sit next to me for much of the five-week Ted Stevens trial last fall.

Two other tips tonight: First, check out the article by Richard Mauer and Lisa Demer in today’s edition of the Anchorage Daily News casting doubt on some of Joy’s allegations. The piece can be found at http://www.adn.com/news/politics/fbi/stevens/story/691774.html on your Internet. (I will try to learn how to do these links slicker.)

And finally, those catching the byline on this post should not think that I stayed at my hotel tonight in Arcadia, California merely because it is a three-minute drive from the Santa Anita Park racetrack that a wayward juror ducked out to during the Ted Stevens trial. It was just a coincidence that flows from having a son go to school in southern California.

Sunday, February 15, 2009

Law Professor and Commentator Goes Way Overboard in Slamming Prosecutors in Ted Stevens Trial

Agoura Hills, California—

Jonathan Turley is a law professor, and I’m not. Jonathan Turley has apparently handled a number of criminal cases in federal court, and all my experience in criminal law has been confined to the Alaska state courts. Jonathan Turley has appeared a number of times on national television, and you’ll need to follow this space to get details on my upcoming first appearance.

Having said all that, Jonathan Turley ventured some pure silliness in a blog posting referencing Judge Emmet Sullivan’s ruling that four prosecutors were in contempt of court in the Ted Stevens case. Turley said “The United States Justice Department has finally outdone the O.J. Simpson prosecution team as the worst in history.” Sure, there have been some missteps and boo-boos, but anybody familiar with the long history of prosecutorial misconduct in cases around the country would immediately recognize this hyperbole as nonsense. More to come on this.

Judge Sullivan Reconsiders, and the Lowest-Ranking Prosecutor Gets Off the Hook

Agoura Hills, California—

At least Kevin Driscoll can go on his honeymoon with no fear about going to jail.

Judge Emmet Sullivan reconsidered his Friday ruling holding four federal prosecutors in contempt for failing/refusing to turn over 30-odd documents relating to the Department of Justice’s handling of a FBI agent’s complaint touching on the Department’s prosecution of Ted Stevens.

Seeming to cool off, Judge Sullivan on Saturday afternoon released an order that reversed his announcement including DoJ Trial Attorney Kevin Driscoll in the roster of those he found in contempt of court. “Upon reflection,” the judge said that the facts that Driscoll—the most junior prosecutor working on the matter—did not sign the relevant pleadings and appeared to have been brought in only recently by the Department’s higher-ups resulting in the lawyer coming off the list of the contemptuous.

Judge Sullivan kept the three senior prosecutors in line for penalties, although his ardor to impose sanctions for contempt may cool now that the government has turned over the documents at issue. On the other hand, further incidents that anger the judge might actually lead him to order sanctions that bite on the prosecutors.

Saturday’s ruling letting him off the hook helps Driscoll’s early marital life. As reported by Joe Palazzolo in the Blog of Legal Times, the judge indicated on Friday that concern about interfering with Driscoll’s honeymoon had caused him to delay by a week a hearing previously scheduled for early April. That hearing will address the various post-trial motions the defense has made. As stated before in this blog, there’s a lot more litigation to go before Ted Stevens would ever be sentenced.

Friday, February 13, 2009

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.