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What Went Wrong in the Stevens Prosecution?:
In the Washington Post, Carrie Johnson takes a look.
Mike& (mail):
The Justice Department team charged with prosecuting former senator Ted Stevens miscalculated by not seeking more time to prepare for the high-stakes corruption trial and fell victim to inexperience and thin staffing, which contributed to its alleged mishandling of witnesses and evidence, according to interviews with more than a dozen lawyers who followed the case.

What?! So it was all accidental? Nice lead. One of the prosecutors has a good PR agent who helped a lazy reporter with that story.

On the second page, you learn that some people indeed did not perceive anything to be accidental: "In another unusual twist, the conduct of public corruption unit lawyers was questioned by Chad Joy, an FBI agent from the Anchorage office assigned to help with the trial. In a 10-page whistleblower complaint, Joy reported seeing boxes of unprocessed evidence stacked outside Marsh's D.C. office, asserted that Marsh had misplaced a piece of evidence and lodged more serious allegations about failure to turn over materials to the defense. The complaint became public after the trial, fueling calls by Stevens's lawyers to overturn the senator's conviction."

How often does an FBI agent seek whistleblower protection after reporting prosecutorial misconduct?

But last week, current and former colleagues of Morris defended her reputation and her ethics, saying they do not think that she would intentionally run afoul of the rules.

Brenda Morris prosecuted a case that ultimately led to a settlement of $1.4mm. Link:

Two weeks before tax day, married lawyers Alan and Jean Brown were signing their names to the back of a familiar-looking green and yellow U.S. Treasury Department check that most Americans associate with a tax refund.

The check the San Antonio couple endorsed on March 30 was an Internal Revenue Service refund of sorts -- but not in the traditional sense.

The $1.34 million check was the result of a settlement between the Browns and the government in Alan Brown, et al. v. United States, a Federal Tort Claims Act (FTCA) suit the couple filed three years ago in the U.S. District Court for the Western District of Texas.
...
Brenda Morris, a chief deputy in the U.S. Department of Justice's Public Integrity Section who prosecuted the Browns, did not return a telephone call seeking comment.



Is anyone asking what went wrong in that case? Or was Morris simply incompetent there, too?
4.12.2009 1:59pm
tarpon (mail):
Election push .. Got to get it done so the Democrat can win. Mission accomplished.
4.12.2009 2:13pm
OrinKerr:
Election push .. Got to get it done so the Democrat can win. Mission accomplished.

Whose mission, tarpon?
4.12.2009 2:17pm
Mystery Guest:
Is this the same Washington Post reporter Carrie Johnson who repeatedly, falsely reported that "racial epithets" had "proliferated" in the Bush Justice Department?

That false claim was based on an IG report that did not even allege racial epithets, but rather recorded a career Justice Department official promoted under Bush (John Tanner) saying that a controversial civil-rights commissioner (Mary Frances Berry) was "black and bitter" like the way Tanner liked his coffee.

There's a huge difference between racial epithets, which often can quickly create a hostile work environment, and merely calling a legendarily-bitter African civil-rights commissioner "black and bitter," which is not severe enough to create a hostile work environment for anyone, and which was inappropriate only to the extent that it may have implied a causal relationship between blackness and bitterness.

A huge legal difference that Carrie Johnson was blind to.
4.12.2009 2:53pm
Paul Allen:
Is this the best MSM summary of the situation? I was hoping for a concise roster of the transgressions; instead, the piece reads more like spin with its overt personalization of the matter.

Question for Orin: As a former DoJ attorney and AUSA, what's your take on the relationship between the Public Integrity Section and the individual U.S. Attorneys' offices. Isn't public corruption a significant focus of effort by the district offices? What is the nature of the redundancy here?
4.12.2009 3:01pm
Milhouse (www):
What mission, Orin? The mission of bringing down a big fish. Especially a Republican. I see absolutely no reason to assume the prosecutor's good faith.
4.12.2009 3:10pm
OrinKerr:
Milhouse,

If you read my comment carefully, you will recognize that I asked "whose mission," not "what mission." I want to know what shadowy group hatched the plan.
4.12.2009 3:19pm
OrinKerr:
Paul Allen writes:
Question for Orin: As a former DoJ attorney and [Special] AUSA, what's your take on the relationship between the Public Integrity Section and the individual U.S. Attorneys' offices. Isn't public corruption a significant focus of effort by the district offices? What is the nature of the redundancy here?
My understandings of this are too vague and uncertain to be helpful: I never worked in the Public Integrity Section or on any of their cases.
4.12.2009 3:22pm
BZ (mail):
Eric Holder has an opportunity afforded many AG's: insist that their attorneys consider justice, not convictions, the goal. He has said the words. Let's see if he can follow through. Judge Sullivan has done his part.

Red herring in the article: questioning whether it was malfeasance or incompetence. The same actions can be both.

Irony in the case: Stevens lost because he pushed for trial before the election. DoJ lost because it didn't take enough time or provide enough personnel to do a proper screening (charitable interpretation) or because its "scalp-taking" mentality won out over appropriate caution (less charitable view).
4.12.2009 3:34pm
Mike S.:
1) Why should the defense attorney even have to ask for documents. Prosecutors are supposed to turn over potentially exculpatory eveidence without being asked. If it's truckloads, copy the truckloads and deliver. Why leave this up to the prosecution though? Why isn't there a rule requiring prosecutors to turn over all evidence?

2) It was Stevens, not the prosecution, that asked to accelerate the trial to finish before election day. I assume he thought he would be acquitted.

3) It doesn't mention the real source of the problems. Prosecutors are supposed to secure justice, not convictions. Lawyers are generally trained to be zealous advocates for their side; prosecutors are supposed to be as interested in acquitting the innocent as they are in convicting the guilty, but they tend to focus much more on the latter.
4.12.2009 3:41pm
Mahan Atma (mail):
That article is a joke.

Defense attorneys asking for discovery! The nerve!!
4.12.2009 3:58pm
sdfsdf (mail):
I don't see any of the media finding it noteworthy that *both the number one and number two people* in the federal government's anti-corruption unit suppressed crucial evidence in order to win a case against a U.S. senator. These aren't just any old government lawyers. Moreover, these aren't political appointees- these are lawyers at the top of the civil service.

The Bush political appointee who was their boss could have quashed the case, but he didn't know all the evidence they did, any more than the judge and jury who convicted Stevens.

The question is not even whether the prosecutors violated the law; it's only whether it was intentional, or that they forgot that their key witness had contradicted the essence of his testimony in the presence of numerous government lawyers.

The law, by the way, is that the prosecutors must disclose exculpatory evidence, but not neutral or inculpatory evidence. Separately, I think, there is some sort of discover rules about evidence that is to be used at trial. But if a prosecutor has neutral or incriminating evidence that he doesn't intend to use at trial, he is free to keep it secret. (Example: the names of informants!)
4.12.2009 4:11pm
OrinKerr:
Mahan,

I think it's worth noting that the "defense attorneys" were a team lead by the legendary Brendan Sullivan.
4.12.2009 4:13pm
sdfsdf (mail):
p.s.-- it's also not mentioned much that (a) the indictment was brought July 29 in a year the accused was up for re-election, contrary to standard policy, a year less one day after the FBI raid on Stevens's house, and (b) besides the No. 1 and No. 2 of the Criminal Division's anti-corruption section being hit with criminal contempt in Feb. 2009, the No. 1 of its appellate division was hit too. (I think that was for violating a court order to produce evidence, not for concealing it in the first place.)
4.12.2009 4:17pm
Ray G (mail):
Hmmm. . . no big fan of Dems or Repubs, but this seems like a sugar coated treatment.

There's obviously something nefarious as to how this whole thing was handled, but yet we hear about "thin" staffing and the like.

But all during the Bush administration, every rumor - however minor- was treated as gospel. No thin staffing excuses, or any other reason was to be heard.
4.12.2009 4:32pm
Interlocutor (mail):
Ray

This all happened under Bush - Obama was just a candidate at the time.
4.12.2009 4:35pm
J. Aldridge:
The wrongs in the Stevens case mirrors wrongs else where: Extreme legal lobbying over anything civil rights, equality and now, public corruption. In such feeding frenzies, written law and common sense take a back seat.
4.12.2009 5:01pm
Mike& (mail):
There is no national-political angle here. Bush was in office. Stevens himself requested that he go to trial before a the election. Anyone suggesting that the misconduct had to do with national politics is so completely ignorant of the issues that he or she does not have a valid opinion.

If anything, this case should show that DOJ was not totally politicized. No one within DOJ killed the prosecution - although legally they could have.

This is an issue of prosecutorial misconduct.

Was it intentional or negligent?

The story cited raises issues of journalistic integrity.

I don't know anyone who has followed this case who thinks it was accidental. Who are these "dozen lawyers who followed the case" that Ms. Johnson interviewed?

The VC's own Jonathan Adler has followed the case. Did Johnson talk to Adler? What was Adler's take?

Jonathan Turley followed the case closely. Did Johnson talk to him? What was Turley's case?

Judge Emmet Sullivan said of the withholding of evidence, way back in October: "It strikes me that this was probably intentional. I find it unbelievable that this was just an error."


Johnson most likely talked to lawyers within DOJ. That, or she lied about talking to a "dozen lawyers."
4.12.2009 5:09pm
RPT (mail):
I presume that those who attribute the prosecutorial misconduct to some partisan conspiracy are simply clueless of DOJ and USA operations and ignorant of recent legal and political history. One might just as reasonably assert the the Bush DOJ tanked the case. I would like to hear these same people air their complaints about Leura Canary, Don Siegleman, Bob Riley, Karl Rove, Paul Minor, et al. Moreover, today's NY Times quotes jurors saying that there was plenty of unexplained evidence of nonreported gifts over a long period of time to convict. There is now a vacated conviction but no suggestion that there was insufficient evidence to convict much less actual innocence.

The "extreme lobbying" comment simply makes no sense. Do you mean that public corruption should not be prosecuted?
4.12.2009 5:21pm
Ak:

The story cited raises issues of journalistic integrity.

I don't know anyone who has followed this case who thinks it was accidental. Who are these "dozen lawyers who followed the case" that Ms. Johnson interviewed?


Exactly. This is a mind bogglingly bad article. It manages to avoid addressing all of the actual issues of whether there was intentional misconduct. Reading it one obtains the impression that it was the "unpredictable" and "hostile" judge pursuing overworked prosecutors. Truly a hatchet job. The era when media like the WP could disseminate this tripe without being called on it is thankfully over.
4.12.2009 5:24pm
Milhouse (www):
Orin, there's no need to posit any shadowy conspiracy. All it took was one or two prosecutors with a sketchy case, deciding that this was an opportunity to get rid of a Republican senator. Indict him soon before an election, and hope that by the time the case fails he will have lost his seat. By the time it comes to trial, maybe the evidence will firm up, or maybe you can cut a deal. (It's not necessary that the prosecutors knowingly indicted an innocent man; they may well have believed that he must be guilty, and that given enough time they'd find the evidence to prove it.) But Stevens saw that his only chance was to be acquitted before the election, so he insisted on a speedy trial. If he's really guilty, then he correctly hoped that they couldn't prove it; if he's innocent (as he may well be) then he would be reasonably certain they couldn't prove his guilt. What he didn't count on is the prosecutors cheating.

All I'm saying is that I don't believe the prosecution would have been brought had he been a Democrat, or had he not been up for reelection. Instead they'd have waited until they had better evidence; or, if they indicted him without enough evidence and he called their bluff they'd have folded. And the fact that this happened in the Bush DOJ, and the political appointees didn't stop it shows how careful the Bushies were not to exercise improper control. (Had Stevens been a Democrat I could well see the Bush political appointees reviewing the evidence and deciding to stop the indictment.) No vast left-wing conspiracy required.
4.12.2009 6:24pm
ruuffles (mail) (www):

All I'm saying is that I don't believe the prosecution would have been brought had he been a Democrat, or had he not been up for reelection.

(Had Stevens been a Democrat I could well see the Bush political appointees reviewing the evidence and deciding to stop the indictment.)

It took the Bush DOJ three tries to convict Don Siegelman, Gov of Alabama, a Dem. I don't think the conviction actually came until after, but he lost re-election.
4.12.2009 6:56pm
Leo Marvin (mail):
Milhouse:

Orin, there's no need to posit any shadowy conspiracy.
All it took was one or two prosecutors with a sketchy case, deciding that this was an opportunity to get rid of a Republican senator.

If it was two, that sounds like a shadowy conspiracy. So, which two? And if it was just one prosecutor's "mission," which one?

Indict him soon before an election, and hope that by the time the case fails he will have lost his seat. By the time it comes to trial, maybe the evidence will firm up, or maybe you can cut a deal.

That's an interesting theory. Is there any evidence that supports it?
4.12.2009 8:43pm
David M. Nieporent (www):
But last week, current and former colleagues of Morris defended her reputation and her ethics, saying they do not think that she would intentionally run afoul of the rules.
Whatever the truth about Morris specifically, I have never seen a prosecutor who admits a fellow prosecutor would intentionally violate the rules, just like I've never seen a cop who admits another cop would intentionally violate someone's rights, or a neighbor of a serial killer who doesn't think, "But he seemed like such a nice guy."

I'm sure there must be some cynical prosecutor out there who comments, "I'm not shocked at all; that guy cuts corners all the time and will break the rules to win," or a cop who admits, "Yeah; everyone knows that guy over there pays jailhouse informants to invent false confessions." I've just never actually heard that.
4.12.2009 8:54pm
Owen Hutchins (mail):
You know, the prosecutorial misconduct does not mean Stevens was innocent. In fact, I am convinced that he is guilty, and it makes me angry that the prosecution did these things such that now it is impossible to try him fairly and give him the punishment he deserves.
4.12.2009 9:02pm
Leo Marvin (mail):
Owen,

What convinces you he's guilty?
4.12.2009 9:09pm
mls (www):
Most of this article was pretty useless, but there was one interesting piece of info: "Federal prosecutors in the District, for instance, were consulted about the Stevens case starting in 2006 but declined to participate, thinking that the charges were shaky, according to sources familiar with the discussions."

I, at least, was unaware of this previously.

Incidentally, I don't know anything about Carrie Johnson, except that she wrote an article on Thursday entitled
"Holder Begins Justice Revamp:
Personnel Moves Opt for Experience Over Political Ties"

The only problem was, the article contained not a scintilla of evidence to suggest that Holder was opting for experience over political ties (it was about Holder's appointing one career professional to replace another as head of OPR, and moving the second person to the Executive Office of US Attorneys to replace a third career lawyer). Johnson may not be responsible for the headline, but still . . .
4.12.2009 9:23pm
Mike G in Corvallis (mail):
It's a hell of a note when even the New York Times publishes a news item that gives a better understanding of the situation than this puff piece from the Washington Post.

In Carrie Johnson's story: "In a 10-page whistleblower complaint, [FBI agent Chad] Joy reported seeing boxes of unprocessed evidence stacked outside Marsh's D.C. office, asserted that Marsh had misplaced a piece of evidence and lodged more serious allegations about failure to turn over materials to the defense."

Notice that she doesn't bother to identify some of the "more serious allegations" ... including Chad Joy's claim that FBI agent Mary Beth Kepner was schtupping Bill Allen, the prosecution's lead witness.

Hard-hitting investigative journalism at its finest!
4.12.2009 10:28pm
Mike G in Corvallis (mail):
It took the Bush DOJ three tries to convict Don Siegelman, Gov of Alabama, a Dem. I don't think the conviction actually came until after, but he lost re-election.

And how many tries has it taken the Bush DOJ to convict William Jefferson?
4.12.2009 10:39pm
Owen Hutchins (mail):
Leo- how about "loans" of items that he was simply "storing" for people for years on end, such as a massage chair? Little things like that. Even without the house renovations, they seem to have had a strong case, but wanted it better.
4.12.2009 10:51pm
MnZ (mail):
Oh those poor inexperienced and understaffed prosecutors...

I wish I had a job in which evidence of malfeasance is an obvious justification for lowered expectations and greater budgets.
4.12.2009 10:52pm
Roger Schlafly (www):
There is no national-political angle here. Bush was in office. Stevens himself requested that he go to trial before a the election.
Huhh? Of course it was political. Stevens did not want the trial. He only asked for a quicker trial so he would not be voted out of office based on unsubstantiated allegations. He thought that he would get vindicated in a fair trial.
4.13.2009 12:32am
Milhouse (www):

It took the Bush DOJ three tries to convict Don Siegelman, Gov of Alabama, a Dem. I don't think the conviction actually came until after, but he lost re-election.

But they did convict him. So long as no shenanigans are discovered, that's a reasonable indication that he really was guilty, and that he was prosecuted because the government had evidence proving his guilty beyond reasonable doubt. That makes it very different from this case, in which the government does not possess sufficient evidence to prove him guilty, which is why they had to cheat. Is he in fact guilty? I don't know, and nor do you, and nor does the DOJ. He knows, and he was confident enough of an acquittal to force an early trial (unless that was a bluff that failed).
4.13.2009 1:07am
Leo Marvin (mail):

He knows, and he was confident enough of an acquittal to force an early trial (unless that was a bluff that failed).

Maybe he was confident. Maybe it was a bluff. Or maybe he knew he was guilty and expected to be convicted, but nonetheless understood that the remote possibility of an acquittal was his only chance to win the election.
4.13.2009 1:23am
Mike G in Corvallis (mail):
Let me amend what I wrote earlier, based on the actual text of Chad Joy's complaint:

... including Chad Joy's claim that FBI agent Mary Beth Kepner was schtupping had an inappropriate personal relationship with Bill Allen, the prosecution's lead witness.
4.13.2009 2:19am
BGates:
My understandings of this are too vague and uncertain to be helpful

C'mon, Orin, if we all held ourselves to that standard for blog commenting, the internet could fit on a thumb drive.
4.13.2009 6:02am
emsl (mail):
People interested in this subject should also read the recent decision in United States v. Shaygan (sorry no link). Yet another sad tale of prosecutorial misconduct.
4.13.2009 11:17am
Maureen001 (mail):
Jurors themselves reported that they believed the government had made its case for unreported gifts for such items as a stain glass window, the massage chair, and several other items of a similar nature. I agree with Owen Hutchins that the merits of the case, whether Senator Stevens was guilty or not in failing to report gifts, is lost by the wayside because of prosecutorial misconduct.
4.14.2009 3:37pm

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