Sen. Stevens Prosecutors Held in Contempt, Taken Off the Case

We took an unexpected trip out of state until yesterday, and so haven’t had a chance to catch up on the latest in the ongoing saga involving allegations of prosecutorial misconduct in the Sen. Ted Stevens case. When last we left off, District Judge Emmet Sullivan had ordered a status hearing for last Friday, the 13th.

In Friday’s status hearing, Judge Sullivan held four DOJ lawyers in contempt, for failing to turn over 33 documents to the defense. These documents pertained to December’s whistleblower claims of FBI agent Chad Joy, which had raised concerns of prosecutorial misconduct.

The judge had ordered these documents turned over on January 21. At first, the prosecutors said the documents were protected by the work-product doctrine. But then, even though they later determined that the doctrine did not apply, they still didn’t hand them over to the defense. At the hearing, the DOJ couldn’t give a good reason for the non-production, and so the judge held the lawyers in contempt.

The contempt order was imposed against William Welch II, the chief of the Public Integrity Section of the DOJ which had prosecuted Sen. Stevens. Also held in contempt were Brenda Morris, the section’s deputy chief and the lead prosecutor at trial; Patricia Stemler, chief of the Appellate Section of the Criminal Division; and Kevin Driscoll, a trial attorney with the Public Integrity Section. The order against Driscoll was revoked the following day, however, as he had only recently joined the prosecution team, and had not been a party to the relevant pleadings. Judge Sullivan stated that he would not impose sanctions until the case was over.

On Monday, Welch announced that the trial team of Brenda Morris, Nicholas March and Edward Sullivan were off the case, and would have no further role in the litigation of the charges of prosecutorial misconduct. This only makes sense, as they are necessarily witnesses to their own conduct, and will probably need to testify themselves. What is surprising is that the DOJ waited so long to take this simple action.

Welch added that the government will now turn over internal DOJ documents related to agent Joy’s allegations of misconduct, including memos and emails of the trial prosecutors. Again, what is surprising is not that this material is being disclosed, but that it took so long to do so. This notwithstanding Welch’s statement that the DOJ “understands that the interests of the parties and the public will be advanced by a prompt airing of these claims, and that additional delay relating to the whistleblower-status issue does not advance that cause.”