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John W. Dean

The Strong Message Attorney General Eric Holder Sent to All Federal Prosecutors When He Dismissed the Indictment Against Senator Ted Stevens, and the Apparent Basis for the Dismissal


Friday, April 3, 2009

In a striking and decisive move, Attorney General Eric Holder has dismissed the indictment that had resulted in the conviction of former Republican U.S. Senator Ted Stevens of Alaska. As Holder explained, he made the surprising announcement of the dismissal after he discovered further evidence of prosecutorial misconduct, and determined that in the interests of justice, he must seek to have the indictment voided and the case dismissed.

If the situation was indeed as bad as Holder has suggested, it seems that he did the right thing. Yet it is the judge in the case, Judge Emmett Sullivan of the U.S. District Court for the District of Columbia, who deserves credit for first bringing what appears to have been serious prosecutorial misconduct to light.

Judge Sullivan's Rulings in the Stevens Case Must Have Been the Flare that Caught Holder's Attention

Senator Stevens was tried and convicted by a jury in Judge Sullivan's courtroom. Sullivan had earlier reprimanded the federal prosecutors for their handling of the case, and at a later point, had even held them in contempt of court for ignoring his order. Thus, when Holder arrived as Attorney General at the Obama Department of Justice, he found that several of his senior prosecutors in the Public Integrity Section of the Criminal Division had outstanding contempt citations pending against them.

Clearly, Eric Holder, who had started his own career as a prosecutor in the Public Integrity Section, did not take this situation lightly. Holder had once served on the District of Columbia trial court bench with Emmett Sullivan, and he knew that Judge Sullivan was a solid, if not model, judge. Holder understood that it was extraordinary that Judge Sullivan had taken the virtually-unheard-of action of holding top Justice Department attorneys in contempt for their behavior. Uncharacteristically, too, Judge Sullivan had found it necessary to repeatedly lambaste the government for misconduct.

For example, Judge Sullivan had called the prosecutors' failure to disclose essential information about evidence that they had already presented to the jury "disturbing." Indeed, he found the nondisclosure serious enough that he struck the evidence and told the members of the jury that they should not consider it. Moreover, outside the jury's presence, Judge Sullivan struck other evidence, and accused the government of presenting that evidence despite knowing that it consisted of lies.

An FBI Agent's Complaint Also Drew Attention to Problems with the Stevens Conviction

Following Stevens's October conviction, in late December 2008, one of the Alaska-based FBI agents who had been involved in the case filed a formal complaint with the Justice Department (a procedure he followed to give himself whistleblower status and job protection). In his complaint, he charged that a fellow FBI agent along with the prosecutors contrived to improperly conceal evidence from the court and the defense.

The allegations included claims that a female agent on the case had had an improper relationship with the government's star witness, and that the prosecutors had, in essence, lied to Judge Sullivan in explaining some of their actions during the trial. Judge Sullivan has published a redacted version of the complaint, which sets forth "serious violations of policy, rules, and procedures as well as possible criminal violations." This complaint resulted in Stevens's attorneys' filing another motion for a mistrial. That motion was pending when Attorney General Holder announced his actions.

But it got even worse.

A Further Contempt Holding From Judge Sullivan Ensued

At another post-conviction hearing, on February 13, 2009, Judge Sullivan held four Justice Department attorneys in contempt for defying his order and failing to provide thirty-three documents related to post-trial motions. The contempt holding was directed at the head of the Public Integrity Section, William Welch; his deputy and the lead prosecutor in the case against Stevens, Brenda Morris; the head of the Criminal Division's Appellate Section, Patricia Steler; and a trial attorney who had just joined the team (and because he had no true responsibility was quickly excused from the contempt citation), Kevin Driscoll.

At the time, Judge Sullivan said he would not issue sanctions for their contempt until the conclusion of the case. The matter of those sanctions is still pending, and may be addressed on April 7, 2009, when Judge Sullivan hears the government's motion to dismiss the case.

In any case, these prosecutors' actions would have been inappropriate. In a high- profile case like this one, which brought down the longest-serving Republican member of the U.S. Senate in a year when he was up for reelection, these actions went far beyond mere incompetence. These are not people who can be entrusted with the power to prosecute.

Judge Sullivan, whom many Washington, DC lawyers consider to be one of the best on the federal bench, was sending signal after signal to warn the Bush Department of Justice that something was very amiss. The Bush Administration ignored the warnings but thankfully, the Obama Administration did not.

The Standards Federal Prosecutors Must Follow

Since at least 1935, when the U.S. Supreme Court issued its holding in Berger v. United States, a clear minimum standard has existed for federal prosecutors, that has never changed: "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer." In that case, after finding that a prosecutor had failed to meet his duty not to impede the truth, the Court overturned a prosecution as unfair.

More specifically, it has long been the law that federal prosecutors have both a constitutional and ethical duty to disclose information favorable to a defendant, if that evidence has the potential to illuminate the truth. It is that long-standing duty that seems to have been violated in the Stevens case. These standards are explored and discussed by Professor Bennett Gershman is an article for the Georgetown Journal of Legal Ethics (Winter 2001). The ethical standards are found in the model rules and code applicable to prosecutors. The constitutional requirement was established in the 1963 U.S. Supreme Court ruling in Brady v. Maryland, and its progeny.

In Brady the Court stated: "An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: 'The United States wins its point whenever justice is done its citizens in the courts.' A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice."

It appears that Attorney General Holder has discovered that prosecutors in the Stevens case utterly failed to meet these standards and responsibilities. In fact, he said he was "horrified" by what he discovered. So not only has Attorney General Holder requested, on behalf of the United States, that Judge Sullivan dismiss the conviction against Stevens, but he has also called for an investigation of the prosecutors by the Office of Professional Responsibility within the Justice Department.

Attorney General Holder Has Sent a Strong Message to All Federal Prosecutors

Judge Sullivan has been sending warnings to the Justice Department throughout this case. The information that Attorney General Holder is now acting upon could have been uncovered by Bush's attorney general, Michael Mukasey, who is himself an experienced federal trial judge. The fact that Mukasey ignored the warnings of Judge Sullivan speaks to the quality of his stewardship of the Justice Department.

Eric Holder's actions, however, have now sent a message to the entire establishment of federal prosecutors. Holder is depoliticizing the Justice Department, to ensure fairness for Republicans and Democrats alike. And he has placed all federal prosecutors on notice that his Justice Department will play by the rules.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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