The Bush Justice Department always had its share of critics, particularly on the left.
But now a powerful new group of critics is making its voice heard — federal judges, who have taken a series of extraordinary steps to correct what they see as prosecutorial misconduct in a variety of cases.
The Ted Stevens case this week is only the latest example — one in which Judge Emmet Sullivan threw out Stevens’ conviction and launched a criminal contempt investigation against a half-dozen federal prosecutors Tuesday, calling their actions “shocking and disturbing.”
• Federal Judge Colleen Kollar-Kotelly recently removed a Justice Department lawyer from a Guantanamo detainee case for flouting several deadlines, then lambasted his supervisor for submitting a “shockingly revisionist” sequence of events to the court.
• In a separate Gitmo case, Sullivan lashed out at the government, vowing that “someone’s going to pay a price” for withholding evidence.
• In Miami last month, federal Judge Alan Gold complained of "flagrant violations" by prosecutors who did not disclose the existence of secret recordings of a defense lawyer for a doctor charged with prescription fraud.
• And another federal judge in Washington, John Bates, last year cited a failure to turn over evidence as he ordered a new trial for a man convicted of illegal business dealings with Iran. Bates said he had “grave concerns” about the government’s actions, which “severely prejudiced” the defendant’s fair trial rights.
What’s remarkable about several of those cases is that judges – usually loath to interfere in the mechanics of the prosecution or the defense — took the dramatic step of removing Justice Department lawyers, or simply throwing out verdicts in cases that began during the prior administration.
This repeated criticism delivered to DOJ attorneys suggests they are facing a credibility gap, particularly before judges in the Capital—and perhaps elsewhere in the country as well—that could have profound effects in a variety of other cases.
Attorneys said that in the wake of the Stevens imbroglio, prosecutions of public officials, undertaken by Justice’s Public Integrity Section, are likely to face particular scrutiny from judges and defense lawyers.
“This is obviously going to be a setback no matter how you look at it,” a defense lawyer and former counsel to the House of Representatives, Stan Brand, said. “Anytime you have a weakened public integrity section in front of federal judges, it’s a problem.”
Added Stephen Gillers, a professor of legal ethics at New York University: “Doubts that were resolved in favor of the prosecution may no longer be.”
Sullivan, in particular, has proposed responses so sweeping that they suggest he sees a systemic problem that goes beyond the Stevens case.
"In several cases recently, this court has seen troubling failures to produce exculpatory evidence," the judge said, referring to evidence that could help a defendant or otherwise undercut the government's case. “Whether you’re a public official, a private citizen or a Guantanamo detainee, the prosecution must provide exculpatory evidence...This is not about prosecution by any means necessary."
Sullivan called on Attorney General Eric Holder to implement training on the evidence issue “for new and experienced, veteran prosecutors throughout the country.”
The clearly exasperated judge also exhorted President Barack Obama to nominate new U.S. attorneys who are committed to fulfilling their duties to defendants. Sullivan even urged the Senate to extract promises to that effect from potential chief prosecutors at their confirmation hearings.
One veteran trial lawyer who prctices in Washington said long-serving judges like Judge Sullivan are often deeply outraged by government misconduct because they realize how many defendants have seen their fates sealed based on promises or assurances from prosecutors.
“Judges that have been on the bench that long rely on the prosecutors, they rely on the government attorneys, because they have to,” said the longtime litigator, who asked not be named. “When their confidence is shaken because of something they’ve seen, suddenly it dawns on them that they’ve been presiding over all these cases all these years and this might be the tip of the iceberg, maybe the wool has been pulled over their eyes. It’s disconcerting.”
Others said the failings were likely to be more widespread than just the Public Integrity Section, at the heart of the Stevens prosecution. “You would think if any section of the Department of Justice would know how to comply ... it would be that section,” said a lawyer who regularly faces off with DOJ attorneys.
The Justice Department said it takes the allegations of misconduct seriously and refers them to its Office of Professsional Responsibility for a thorough review when appropriate. “At the same time, it's important to recognize that the Department's attorneys act responsibly and ethically in the vast majority of the cases they litigate,” a Justice spokeswoman said.
At Tuesday’s session, Stevens’ defense attorney suggested that because of repeated missteps during the trial, a top Justice official, acting Criminal Division chief Matthew Friedrich should not have held a press conference to praise the prosecution team after the convictions. However, the defense lawyer, Brendan Sullivan, said he was not suggesting Friedrich was involved in the unethical conduct.
Judge Sullivan also suggested a failure of supervision when he twice singled out former Attorney General Michael Mukasey for criticism. After the defense said it had received no reply to three letters sent to Mukasey seeking an investigation of the trial team, the judge said bitterly, “Shocking—but I’m not surprised.”
Mukasey did not respond to a request for seeking comment for this article. Justice’s Office of Professional Responsibility has been investigating aspects of the prosecution since the trial last fall.
At Tuesday’s session, Judge Sullivan threw out the guilty verdicts a jury returned against Stevens last October on eight counts that he omitted valuable gifts from his financial disclosure reports. Last week, Holder advised the court that important evidence was not provided to the defense and that Justice would not seek to retry the case. Sullivan also named a special prosecutor to decide whether to seek criminal contempt charges against six members of the government’s trial team.
When he suggested the Stevens case fit an emerging pattern, Sullivan did not cite other cases.
However, a transcript of a hearing last week about a Yemeni prisoner held at Guantanamo for seven years, Aymen Batarfi, shows Sullivan was similarly livid with the government. “How can this court have any confidence whatsoever in the United States government to comply with its obligations and be truthful to the court?” he asked, in comments first reported by McClatchy Newspapers. “I’ll tell you quite frankly, if I have to start incarcerating people to get my point across, I’m going to start at the top.”
The judges who are most skeptical of DOJ attorneys may have broader policy views that could color their assessment of the government’s conduct. Judge Sullivan, who was appointed to the federal bench by President Clinton and to local courts by Republican presidents, has indicated deep misgivings about what has transpired at Guantanamo.
“I mean, this Guantanamo issue is a travesty. It ranks up there with the internment f Japanese-American citizens years ago,” the judge said at last week’s hearing. “It's a horror story in the American system of jurisprudence.”
Kollar-Kotelly expressed her ire in two recent orders castigating the government for repeatedly ignoring deadlines she had set to produce evidence to lawyers for four Kuwaiti prisoners at Guantanamo. She said she had “lost all confidence” in a DOJ attorney assigned to the case.
And in the Miami case, Judge Gold said, "It’s more than just mistakes. Important safeguards were not met." Two prosecutors involved in the case have been reassigned.
One of the most famous allegations of misconduct in a federal case in recent years took place in a 2003 trial in Detroit of four men alleged to be part a “sleeper cell” of Islamic terrorists. Prosecutor Richard Convertino was accused of withholding emails that contradicted a key witness. The Justice Department ultimately charged Convertino and a State Department investigator with conspiring to withhold evidence and make false statements to the court. Both men were acquitted after a jury trial.