Legal Ethics

Fed'l Judge in Sen. Stevens Case Puts Spotlight on Prosecution


Six days into a high-profile corruption trial of then-Sen. Ted Stevens (R-Alaska), federal prosecutors in Washington, D.C., knew they’d made a major mistake.

A February 2007 document in the FBI file concerning the government’s chief witness could well be helpful to the defense. But the prosecution hadn’t turned it over to Stevens’ legal team prior to trial. On Oct. 2, 2008, nearly a dozen prosecutors and FBI agents met to discuss what to do. They turned the document over the next day. Predictably, U.S. District Judge Emmet Sullivan was angry about the discovery violation, recounts the Legal Times.

That was only the beginning of the prosecution’s troubles. The situation worsened last week—and yesterday it seemingly worsened again. On April 1, Attorney General Eric Holder Jr. decided that the government should seek to have Stevens’ conviction reversed, because other documents were withheld, too. Tomorrow, Sullivan is expected to grant the government’s motion to void both Stevens’ conviction and his indictment.

In an ominous order yesterday, the judge demanded that the prosecution turn over not only all evidence provided to Stevens’ counsel post-trial and all exculpatory material related to an FBI agent’s whistle-blower allegations but copies of the prosecution’s witness notes, reports the Washington Post.

This suggests that the judge expects to continue to focus on prosecutorial issues even after he drops the case against Stevens, the newspaper writes.

The judge acted on his own initiative in issuing an evidence preservation order, rather than at the request of the defense, reports the Blog of Legal Times.

Holder had only been in office 11 days when, not quite two months ago, Sullivan held in contempt three leaders of the Department of Justice Public Integrity Section in charge of trying Stevens. Section chief William Welch II, principal deputy chief and lead trial prosecutor Brenda Morris and appellate section supervisor Patricia Stemler were rapped for failing to comply with court orders to turn over internal whistle-blower documents alleging prosecutorial and FBI misconduct.

An Office of Professional Responsibility investigation is ongoing and will determine whether the document mistakes were inadvertent errors made in the midst of a deluge of trial preparation or involved intentional withholding, the legal publication writes. In either case, the DOJ debacle in the Stevens trial likely will encourage other prosecutors to think twice before withholding exculpatory evidence, experts say.

“Not only has the case been thrown out, now the prosecutors are under investigation. That’s certainly going to get the attention of prosecutors around the country,” says partner Michael Madigan of Orrick Herrington & Sutcliffe.

In theory, egregious prosecutorial misconduct can even work a role reversal, and potentially put a government lawyer in the defendant’s seat. But in practice this rarely happens. A prosecutor is more likely to be struck by lightning than indicted in a misconduct case, the Legal Times reports.

Additional coverage:

Associated Press: “Despite reversal, Stevens’ political future cloudy”

ABAJournal.com: “Stevens Debacle Shows More Oversight of Prosecutors is Needed, Experts Say”

ABAJournal.com: “U.S. Moves to Drop Charges Against Sen. Stevens”

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