With Stevens order, judge declares war on withheld evidence

McClatchy NewspapersApril 7, 2009 

U.S. District Judge Emmet Sullivan

WASHINGTON — In setting aside former Sen. Ted Stevens' indictment Tuesday, a federal judge declared war on what he said is an increasingly pervasive government tactic in the administration of American justice: The penchant on the part of federal prosecutors to withhold evidence.

U.S. District Judge Emmet Sullivan said that he's seen "troubling evidence" across a spectrum of cases where prosecutors have failed to turn over to defense attorneys what's known as exculpatory evidence — information that might help criminal defendants with their cases.

Such problems weren't limited to Stevens' case, Sullivan noted. Public officials, private citizens and even prison detainees in Guantanamo Bay, Cuba, have all had their rights trampled on, he said.

"We must not forget the Supreme Court's direction that a criminal trial is the search for the truth," Sullivan said during the hearing to drop Stevens' case.

Last week, Sullivan rebuked the government for not turning over medical records to lawyers for Guantanamo detainees and ordered Justice Department lawyers to explain why he shouldn't cite them for contempt.

"How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?" he asked then.

Sullivan used almost identical language during Stevens' trial and was equally irate with federal prosecutors. In Stevens' case, though, Sullivan actually did hold three government attorneys in contempt for failing to turn over documents in post-trial matters. And on Tuesday, Sullivan appointed a special prosecutor to investigate whether government attorneys had broken the law by failing to ensure that Stevens received a fair trial.

Attorney General Eric Holder said in an interview with CBS News on Tuesday night that he "took actions as quickly" as he could in the Stevens case and that he'd continue an internal review of how prosecutors handled the case. Sullivan mentioned his "high regard" for Holder as lending weight to his decision to end the case. The two are friendly and overlapped in their time on the District of Columbia Superior Court before moving on to higher office.

A Justice Department spokeswoman said government attorneys would review Sullivan's order in the Stevens case and "will continue to cooperate with the court on this matter."

"We take seriously the court's comments regarding the discovery process and will review them for possible future actions," Laura Sweeney said. "As the attorney general indicated last week, the fact that there is an inquiry into the prosecutors' actions does not mean or imply any determination has been made about their conduct."

Ronald Safer, a white-collar defense lawyer and the former head of the criminal division of the U.S. attorney's office in Chicago, called the dismissal "a tremendously powerful statement to make at the beginning of the administration."

"It tells prosecutors, don't fool around with your constitutional obligations — don't hide evidence you should turn over," Safer said. "If you do, the attorney general will dismiss even the biggest, highest profile cases and see that you are disciplined for your actions."

Guy Singer, a former Justice Department lawyer who prosecuted corruption cases during the Bush administration, described the dismissal as "a stunning decision."

"Part of Eric Holder's role clearly is to re-instill confidence that the Department of Justice is not being political," Singer said. "I don't think he would take lightly abandoning his prosecutors when there are allegations of misconduct out there. My guess is that he believed it was the right thing to do. It's a message to prosecutors that if you're out there committing misconduct you're on an island."

Sullivan suggested during Stevens' final court hearing that he'd like to see Holder make mandatory training reminding all of his prosecutors that they have an obligation to turn over favorable evidence under the 1963 Supreme Court case, Brady v. Maryland.

Sullivan said he may go as far as to enter an order at the beginning of each criminal case reminding federal prosecutors of their Brady disclosure duties. He urged other federal judges to do the same.

The 61-year-old judge, who was appointed to his positions by presidents of both parties, may be in the perfect position to make such suggestions.

President Ronald Reagan first named Sullivan to the Superior Court of the District of Columbia in 1984. President George H.W. Bush appointed him to the District of Columbia Court of Appeals in 1991, and President Bill Clinton named him to the federal bench in 1994.

Sullivan, a Washington native, has an undergraduate and law degree from Howard University. He married his high school sweetheart and has two children and two grandchildren.

Sullivan had a relatively mild manner in court during the Stevens trial, unless prosecutors angered him. After blowing his fuse, though, he'd retreat to his chambers and then return to the courtroom calmer, and with a clear plan for how to proceed.

He bent over backward to accommodate jurors during the trial by making sure they had plenty of breaks and scheduling the events of the day around their needs. The trial went on during football season, and on Mondays during the trial, he always had a joke for the jurors about the Washington Redskins.

At one point during Stevens' trial last fall, Brenda Morris, the chief Justice Department prosecutor in the case, told Sullivan that the swift-moving nature of the senator's trial was bound to lead to some snags in turning over information to the defense. Stevens was up for a difficult re-election bid and asked for a speedy trial so he could have a verdict before voters made their decision on Nov. 4.

Sullivan, however, countered that speed was no excuse.

"It's not about the pace of litigation, it's about the fairness of the proceedings," he said at the time. "We don't sacrifice fairness for expedience."

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McClatchy Newspapers 2009

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