The Legal Times reports:
U.S. District Judge Emmet Sullivan suspended the trial of Alaska Sen. Ted Stevens Thursday morning, after it was revealed in court that prosecutors withheld FBI records that could have aided in Stevens' defense. The Republican senator's lawyers at Williams & Connolly immediately called for Sullivan to dismiss the case.
The records in question showed that the government's star witness, former VECO CEO Bill Allen, told federal investigators that he believed Stevens would have paid for the renovations he is accused of omitting on his financial disclosure forms if the senator had received the invoices. The government waited until last night to hand the records over, which Brenda Morris, the lead prosecutor, imputed to "human error."
"It strikes me that this was probably intentional. I find it unbelievable that this was just an error," Sullivan said.
Related Posts (on one page):
- Judge Will Not Dismiss Stevens Case:
- Sen. Stevens' Corruption Trial Suspended Due to Potential Brady Violation:
Is it a mistrial, or is it just suspended long enough for the defendant to be re-el^H^H^H^H able to review and respond to the new information?
Of course the prosecutors would not purposely embarrass themselves like this!
If prosecutors wanted to hide this evidence, they wouldn't have handed it over at all. But, given that the prosecutors would probably not want to be disbarred all for the purpose of conspiring against a very corrupt Stevens who is going to lose his race for re-election anyway, they wouldn't have done that either.
There really is not a huge disadvantage to the defense of receiving this testimony a little late. What the judge should do is grant the defense a continuance to give it a reasonable amount of time to prepare in light of this information, not retardedly assume that the prosecutors are out to get Stevens and are purposely withholding exculpatory evidence for that purpose. Exactly who would purposely put their career on the line to wrongfully convict Stevens, who is going to lose re-election anyway? Would the Republican US Attorney that is in charge of this case do that? That the other corrupt party to the transaction self-servingly claims that Stevens would have paid is not exactly game-changing testimony. The proper remedy is obviously a continuance, not a dismissal which would allow a very guilty Stevens to walk away from his crimes without punishment.
I disagree. VECO CEO Allen has already testified and has returned to Alaska. The defense did not have an opportunity to question him on this very information. This is a jury trial, so if Allen was recalled at this late date how does one explain to the jury that Allen is being recalled "because... because... because... oh, we just decided to do it now instead of in the logical sequence. Oh, and don't worry if you can't remember Allen's testimony very well. It just wasn't that important anyway".
Remeber, Allen is billed as the prosecution's star witness! I'm not a lawyer. Not even close, but this stinks whether it was deliberate or not. Judge Sullivan should dismiss the case. Justice is justice, and this ain't it.
Stevens' argument on prejudice is that his opening argument would have been different had he had the info.
My question--I can't tell from the articles--are these 302's that were never handed over, or is it notes, and that particular statement never made it to the 302's?
Based on other articles I've read, the government handed over 302s with this statement blacked out.
I think it is a huge disadvantage. This is a big concession from the key witness. It would have been important not only in how I did cross, but also potentially in how I handled the minor witnesses. It's surely not stupid (retarded!? geez!) to have a hearing--something that the judge would have to do in any case.
And I think it was intentional, though maybe not by the lead attorney. High profile cases get out of hand in a hurry. People become blind to their ethics when they see the chance to make a name for themselves. I've seen it too many times.
BTW, I've tried quite a few jury trials including 40 plus criminal cases from my younger years.
-m
Assuming Stevens is going to lose his re-election is not the way to bet.
Second,
This is definitely a big disadvantage to the defense for the reasons mentioned by Le Messurier. It's always bad to get evidence at the last minute. It's doubly bad to get it after the DA's witness is off the stand. What's their remedy? To call Bill Allen himself? That gives the DA another crack at him too.
Third,
I agree with the judge, there is very little reason the DA wouldnt' realize the significance of that statement.
You just making up facts, or are you saying the linked story is wrong?
The linked story states:
See yesterday's post on chess.
You're either joking, or haven't been following the trial very closely. Read Le Messurier's explanation, for starters, then if you're game, share with us the limiting instruction you think the judge can give to undo the damage.
I think a more pressing concern for the AUSA is to figure out if everyone who agreed that the case should go to trial knew about the exculpatory evidence. That office seems to have set a pretty low bar for exercising its prosecutorial discretion. I wonder if someone in the chain of command who gave the okay to try the case is having second thoughts upon learning of this document.
Final thought: seems a bit over the line for the judge to comment on the record that he feels the omission was intentional. Save it for your actual ruling on the question.
Allen was testifying the day the trial was suspended, so recalling him "at this late date" is kinda a strange argument to be making. Not that it isn't possibly a huge disadvantage for the defense, but the recalling at a late date argument isn't good. The more valid question is how if would affect the defense strategy from opening statement on to know this testimony was available.
I owe you an apology. The first news flash I heard about the suspension of the trial indicated Allen was off the stand and on his way to Alaska.
It seems to me the damage is done, and a mistrial is quite appropriate.
And the evidence this was deliberate is what again, Ned? The fact the evidence was in fact revealed, carrying with it at a minimum a certain amount of embarrassment to the AUSA responsible for the prosecution, suggests an opposite conclusion. This is yet another incident where the facts, regardless of what they may be, will probably only get in the way of uninformed speculation.
In any event, does the court have the authority to order a mistrial but permit the defendant to be retried (in effect, then, a dismissal)? Hasn't jeopardy attached?
Mea Culpa. I had believed that Allen had been dismissed from an article I had read in the Anchorage Daily News. In fact it was the witness Williams who was dismissed and returned to Alaska and never, in fact, called to the stand (ostensibly for health reasons). However, I still feel for the reasons given by Ned Ludd in his 3:32 comment that Sullivan should dismiss the case.
What if their purpose wasn't to convict Stevens at any cost? What if their purpose was to blow the case?
Why give such deference to prosecutors by assuming their motives are always pure? Maybe a little embarrassment is the cost of preventing something far more damaging to the prosecutors or their political friends.
There are tons of possible motives to not want Stevens convicted. For example, he might sing quite a song from prison and implicate many other officials, lobbyists or others whom the current prosecutors don't want implicated.
I'm not making a concrete accusation, just pointing out the possibilities. Prosecutors are as susceptible to corruption as any other official. Just sayin', that's all.
I don't recall reading very often that a prosecutor turned over too much information as a result of "human error." Funny how it's always too little.
Probably an observational or reporting bias, I see too much information being included by error far more often that too little. I am often amazed at personal information which is supposed to be redacted mistakenly being released, even names upon occasion.
Le Messurier, I thought Williams was on subpoena for the 6th. The defense moved for a mistrial because the prosecution allowed him to return to Alaska for the 10 days between his meeting with prosecutors and his testimony, but I've heard nothing about his not being available for testimony on the 6th. Is this new, and has Williams been dismissed?
If this were any other defendant, the idea that a dismissal might be ordered is laughable.
You're probably right based on the discussion here (IANAL). But I'd be surprised if any defense attorney didn't publically call for dismissal and try to come up with arguments for it in this kind of situation. Dismissal would be the best case scenario for their client, which is what they're being paid to advocate.
From what I know of him, Stevens seems like an extrememly corrupt politician. (Whether "corrupt" means doing something explicitly illegal or only working the system in the most dishonorable way possible I don't know.) But even guys like him deserve fair trials.
You know, after playing Sisyphus for the last 5 weeks with Sarah Palin rumors, many of which have had attached that "Just sayin' that's all pseudo-disclaimer attached, I have to say the appeal of it has completely exhausted itself.
While the defense lawyers' call for a dismissal is predictable I think the judge's language is over the top. There are several reasons he might chose to speak the way he has (including knowing he is going to allow a continuance and not wanting a conviction overturned because of that ruling), but based upon the face value of his statements dismissal is a strong possibility.
If this were any other defendant, the idea that a dismissal might be ordered is laughable.
I don't see any evidence in either the original post, the Legal Times article, or the comments that anyone is "feign[ing] outrage over the injustice of our criminal justice system." In fact, there doesn't seem to be any outrage, feigned or not. People are just wondering if a Brady violation occurred; and, if so, what the remedy should be. What, exactly, is the systemic "injustice" being bandied about?
Also, not one of the comments has suggested that if this took conduct occurred in the context of a trial of, say, an inner-city minority youth for low-level drug dealing, that somehow it wouldn't still be a Brady violation, as your comment suggests.
Finally, lawyers for blue-collar defendants move for dismissals all the time, on the flimsiest of predicates. That's what defense lawyers do. And sometimes judges grant them.
If THAT is the case, then the evidence is much stronger that the prosecution acted in bad faith. IF that is the case, I, as judge, would be VERY VERY pissed off.
Someone asked about double jeopardy. Yes, jeopardy has attached--it attached when the jury was sworn. But that does not answer the question as to whether there can be a re-trial.
First, if a mistrial was declared and it was not manifestly necessary to declare a mistrial, then jeopardy precludes a re-trial. However, if the defense requests a mistrial, then the defense is usually deemed to have waived a double jeopardy argument. Finally though, if the prosecution's misconduct precipitated the mistrial, there might still be a bar to re-trial even if the defense requested it (perhaps hinging on whether the misconduct was inadvertant or deliberate).
This is a huge gaffe and Sullivan is quite right. There's no conceivable way the AUSA didn't know about this testimony or forgot to hand it over. And if she did, she should be fired for incompetence and sent to sort the files alphabetically by the fifth letter in the third word of patent applications filed at the patent office of American Samoa.
Didn't Gibson Dunn get slapped with some insane fine a few years ago in a case in Cali for pulling these kinds of stunts in a civil case?
I only know what I read in the newspapers (and sometimes I can't even remember that! :)
Anchorage Daily News Sept 30, 2008
A tacit agreement can only be implied even if Stevens had gotten a legitimately large bill and then had withdrawn his support for Veco. It must be hard to prove a case like this but I don't see where Allen's statement hurts the prosecution any more than they were already hurting. So why hide it?
To be clear - the primary obligation to disclose this type of information is pursuant to Brady (exculpatory) and/or Giglio (impeachment). Because those obligations are of Constitutional import and can torpedo a case if they cause actual prejudice to the defendant, most prosecutors are so sensitive to Brady issues that they err on the side of over-disclosure. Here, I suspect the Stevens case was such a large, diffusely-staffed pretrial effort with such excruciating deadlines that the D.D.C. USAO's quality control slipped (recall, for his own reasons Stevens insisted on his speedy trial rights; 95% of similarly complicated white collar cases get designated complex by consent and get a lot of pretrial time off the Speedy Trial Act clock for motions and discovery).
At bottom, Redlands got it about right, above:Stevens' lawyer, Brendan Sullivan, of course immediately called for dismissal, told the court the world is ending, and started searching for the second gunman lurking about the grassy knoll -- but Sullivan's got a very well-established reputation in high-end white collar criminal practice circles as being a bit of a mad dog (and, frankly, not above pulling a few semi-cheap tricks himself). Sullivan's "I couldn't talk about it in my opening" as the only alleged prejudice shows how weak his position was on the merits -- a lawyer's opening is not "evidence" and he will get to fully argue everything that happens at trial in his closing, so Stevens is not harmed, at least not in a legally-relevant sense. In the absence of irremediable prejudice to the defendant, the court would need to find egregious prosecutorial misconduct (of the sort that OPR and bar disciplinary counsel would find offensive), for dismissal to be appropriate as an extraordinary sanction.
If you were A) Innocent, B) Running for reelection; and C)Had your reputation trashed in the media by a wrongful prosecution, then what remedy would you think appropriate if the State that is trying to take away your liberty violated your rights by intentionally withholding Brady material?
How could anything less than dismissal do justice?
Besides, on the assumption that prosecutors do this all the time and usually get away with it (how many judges are former prosecutors?), isn't a very harsh sanction going to have salutory effect?
(Making no assertion as to this defendant's innocence, just presuming it.)
The attorney in fact is a black female career HQ type since the 90's, and it's unlikely that there were many Republican grads out of her Howard Law School class
So it's unliely that this ws a Bushitler plot to throw the case. More likely, since this was the second offense in several days, this was willful.
In reality, in most close trials, a nasty instruction from the judge is the best remedy for the criminal defendant. It makes the prosecutors look dishonest. Best of all, unlike a ruling that jeopardy attaches to a dismissal, the prosecutors can't appeal from a not guilty verdict, so it's game over if the jury doesn't believe the government's case.
Unless you've paid attention to every bit of testimony (either by reading transcripts, if available, or by being in the courtroom), you really aren't in a position to say which way the judge should rule on this. If the news reports are correct, this is a discretionary, fact-based call. When a call is this close, you can't really depend on news reports for more than an overview.
I all too often see prosecutors cheat in slam-dunk cases. It just makes me scratch my head. Then again, my clients' behavior that led to the slam-dunk case also makes me scratch my head.
Not necessarily true. Here are just a few possible reasons (all speculation, of course). One team member might have hidden it. The group might have naively thought they get away with it because they thought the case would plead (like about 99.99999% of other federal criminal cases). Someone on the team might have suddenly had a stroke of ethical behavior. It could also be that an investigator or lower-level attorney threatened to disclose. Or it could just be incompetence.