The Statement of Williams Connolly LLP, through Rob Cary, Brendan Sullivan, and Simon Latcovich, truly speaks for itself. We will have more to come on the DOJ's actions.
Tag: Ted Stevens
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We don't need new legislation insuring that defendants receive the exculpatory information they are entitled to under the U.S. Constitution, because the DOJ has learned its lesson from the Ted Stevens case and will NEVER let something like that happen again.
For example, in the high-profile insider trading case of U.S. v. Rajat Gupta, the DOJ recently argued that its prosecutors did NOT have to review 44 SEC interview memos for Brady material, even though the memos summarized interview sessions jointly conducted by SEC and DOJ attorneys. According to SDNY prosecutors, the overall DOJ and SEC investigations were not technically "joint" in nature, so SDNY AUSAs had no Brady obligations with respect to the SEC memos. The SEC attorneys were capable of conducting the Brady review on their own. Yeah, right. Just like the FBI and IRS Special Agents were capable of conducting the Brady review in U.S. v. Stevens. I completely forgot about the Brady training that SEC attorneys receive on a regular basis. DOJ's position is not only contrary to SDNY and Second Circuit case law–it also violates the letter and spirit of the Ogden Memo, promulgated after Stevens to prevent future Brady debacles. I guess SDNY didn't get the memo. (They're special you know.) Judge Jed Rakoff was having none of it. See his Gupta Brady Ruling, issued last week, for details. In truth, all of the SEC memos should be turned over in their entirety to the defense, just as all of the 302s and MOIs in Stevens should have been turned over.
It is clear that the DOJ has learned almost nothing from the Ted Stevens case. Suppression of exculpatory and/or potentially exculpatory evidence is largely not an issue at the line level. The typical AUSA knows Brady/Giglio when he sees it, and knows to disclose it. The problems tend to arise in high profile cases, particularly those captained out of DC. The sickness extends to very high levels at the DOJ. The Stevens prosecution clearly showed this. The Bill Allen-Bambi Tyree subornation of perjury allegation, reported in 2004 to a federal judge by DOJ prosecutors in a sealed pleading, was classic Giglio material. It should have instantly been recognized as such by the Chief and Deputy Chief of the Public Integrity Unit and they should have ordered it turned over immediately to the defense. It wasn't and they didn't.
The DOJ has run out of scandals and excuses. Enough already. At long last, have they no shame?
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1. Compost flows downhill.
2. I'd rather be a hammer than a nail. I'd rather be a supervisor than a line assistant.
3. If I am an experienced prosecutor and supervisor and agree to take over and lead the prosecution team a few days prior to the Indictment, I need to lead that team and take responsibility for my actions and the team's actions.
4. If I am prosecuting a white collar case involving hundreds of FBI 302s and I don't hand them over to the defense before trial, I am virtually guaranteeing Brady error.
5. If I am prosecuting a white collar case involving hundreds of FBI 302s and I don't hand them over to the defense before trial AND I am going up against a United States Senator who is represented by a highly skilled law firm known for its tenacious tactics, I am a fool. I deserve what I get. But the people who work for me don't necessarily deserve what they get.
6. If I prosecute a sitting U.S. Senator in July, knowing that he is up for re-election in November and assuming that he will seek a speedy trial, I better have my discovery, especially my Brady discovery, ready to hand over on the day of the Indictment.
7. If my case has hundreds of 302s, it is likely that some of the agent's interview notes will contain material inconsistent with, or not referenced in, the 302s
8. If four prosecutors and one case agent interview the key prosecution witness three months before Indictment, and the interview goes poorly, AND no 302 is generated, people aren't going to think well of them. This is especially true if the FBI Special Agent later admits that no 302 was written because, "the debriefing…did not go well," and the prosecutors completely forget about the interview and the Brady information gleaned during it.
9. If I discover Brady information, it does not magically lose its character as Brady material because I decide to investigate further and develop contrary information.
(wisenberg)
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Here is the Williams & Connolly Analysis of the Schuelke-Shields Report. It is an excellent dissection, by Brendan Sullivan and Robert Cary, of the rampant prosecutorial misconduct permeating the Ted Stevens case.
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Schuelke-Shields Report: NACDL News Release
Schuelke-Shields Report: Statement from Catherine Stevens
Schuelke-Shields Report: Executive Summary
Schuelke-Shields: The Prosecutors Respond
Some Further Thoughts On Judge Sullivan's Order
Brady is "Hot" – Order in Stevens
Alaska Discovery Problems – The Latest
Kott Decision Matches Kohring – Prosecutors Violated Brady
The Vic Kohring Catastrophe: Some Reflections Upon Rereading the Ninth Circuit's Opinion
Holder's Statement on the Stevens Case, Commentary, & More
DOJ Moves to Dismiss the Ted Stevens Case
Additional Item Regarding the Schuelke Report on the Ted Stevens case
(esp) (rev. 4-8-12)
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If one thing is clear from theSchuelke Report, legislation is needed for discovery reform. Senate Bill 2197 does exactly that. Proposed by Senator Lisa Mukowski (Alaska) today, along with Senators Inouye, Hutchinson, Begich and Akaka, the bill titled "Fairness in Disclosure of Evidence Act" aims – "[t]o require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for other purposes." The Brady Supreme Court standard has been around approximately 50 years. There also are professional responsibility rules that call for disclosure of Brady material. But what really needs to happen to avoid another Ted Stevens case fiasco is to have this codified in federal law.
One of the prosecutor responses to the Schuelke Report states - "Because PIN, and, in large part, the Criminal Division, inexplicably had no formal policies or procedures regarding most core investigative and prosecutorial functions …." Another takes issue with whether there was a Brady violation. And several pointed fingers at others.
This bill needs to pass.
See Bill & Synopsis here on the NACDL website.
(esp)
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For all of those who do not have time to read a 500-plus page report and the responses, here is the Schuelke-Shields Report Executive Summary.
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In the interest of fairness, here are the responses of the federal prosecutors mentioned in the Schuelke-Shields Report. Submission of Brenda K. Morris, Submission of Edward P. Sullivan, Submission of James A. Goeke, Submission of Joseph W. Bottini, Submission of William M. Welch III, Submission on behalf of Nicholas A. Marsh.
Mr. Goeke also submitted his own separate appendix. Here it is. James A. Goeke Appendix.
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And here it is, the Schuelke-Shields Report–detailing the prosecutorial misconduct in the U.S.Department of Justice's Ted Stevens prosecution.
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BLT has the story here. Holder was testifying on Capitol Hill. Senator Dianne Feinstein complained that Senator Stevens died "before he knew this was a faulty prosecution. That to me elevates this to a new height." In fact, the case was dismissed with prejudice due to prosecutorial misconduct while Stevens was very much alive.
MattBray.net 