Seeking justice at the Justice Department

Joe Davidson
Columnist March 19, 2012

Perhaps the most impressive thing about federal employees is their sense of mission. They are a dedicated bunch, serious about helping this nation meet its promise.

This certainly is true of the many Justice Department employees I’ve met during years of covering Washington.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

So, last week’s report about the 2008 prosecution of the late Sen. Ted Stevens (R-Alaska) was particularly disgusting. Independent investigators depict poorly managed prosecutors intentionally subverting justice.

Stevens’s conviction undoubtedly contributed to his reelection defeat, which would mean prosecutors also subverted the electoral process.

The report has ramifications that go beyond the named prosecutors and law enforcement agents, whose misdeeds are finely detailed. It sullies the reputation of the department, emphasizes the need for better training and could affect employee morale.


Sen. Ted Stevens (D-Alaska) is trailed by reporters as he walks off the Senate Floor at the U.S. Capitol on November 20, 2008. In October of the same year, Stevens was convicted on seven counts of corruption and lost his Senate Seat. (Mark Wilson/GETTY IMAGES)

“People worry they are one inadvertent mistake away from having their careers ended,” said one Justice Department official, who spoke on the condition of anonymity.

Aware of that concern, he added, the department does not want “to put them in a trick box so if they make an honest mistake their careers are over.”

A former U.S. attorney, Matthew D. Orwig of Dallas, doesn’t think the Stevens case will produce a morale problem.

“Very, very isolated cases that get a lot of attention will not change the way the average U.S. attorney operates,” he said. Every federal prosecutor he has dealt with in his private practice, he added, “has handled himself or herself very, very honorably.”

That wasn’t the situation in the Stevens prosecution, where federal employees were the villains and the convicted person the victim.

Stevens, in fact, might have been guilty. It’s hard to tell now because the actions of prosecutors led to his corruption conviction being thrown out. A federal judge held government lawyers in contempt for failing to provide certain information to his attorneys. Shortly after taking office, Attorney General Eric H. Holder Jr. assigned a new team to the Stevens case. What it found after the conviction led Judge Emmet G. Sullivan to dismiss the charges against Stevens in April 2009, at the government’s request and to the department’s credit.

Under the law and department policy, prosecutors are required to provide defendants information favorable to them. Yet, the report by investigators Henry F. Schuelke III and William Shields is replete with examples of that not being done, examples they found “astonishing.”

About one item that could have helped Stevens, the investigators wrote: “The complete, simultaneous and long term memory failure by the entire prosecution team, four prosecutors and the FBI case agent, of the same statement about an important document made at the same meeting by their key witness in a high profile case is extraordinary.”

Schuelke and Shields said that “our investigation found evidence which compels the conclusion, and would prove beyond a reasonable doubt” that information “was intentionally withheld from the attorneys for Senator Stevens,” yet was insufficient to convict prosecutors of violating criminal contempt law.

But the evidence is sufficient enough to shame the department.

The dishonor done to the department is real. So is the department’s effort to right the wrong.

That effort started in April 2009 and includes an extensive program to improve agency procedures and training of federal prosecutors and law enforcement officers. That month a working group was formed to evaluate policies and practices and to recommend improvements. A career prosecutor was appointed in January 2010 as a full-time czar overseeing disclosure practices in criminal cases.

All federal prosecutors now take annual disclosure training. Rookie prosecutors go to a boot camp, which includes topics related to the issues that got the Stevens crew in trouble.

Not only prosecutors, but also law enforcement officers such as FBI agents are trained. Last year, 26,000 law enforcement officers each had four hours of training (is that enough?) in criminal disclosure policies, and annual refresher courses were planned. In February, “train-the-trainer” programs were held to extend instruction to other agencies.

“We have taken unprecedented steps to ensure prosecutors, agents and paralegals have the necessary training and resources to properly fulfill their discovery and ethics obligations,” said Laura Sweeney, a department spokeswoman.

Justice Department officials insist problems in the Stevens case do not represent the usual way of doing business.

Maybe not, but those on the other side of the courtroom view things differently.

“The duty to provide favorable evidence has often been misunderstood or ignored,” Lisa Monet Wayne, National Association of Criminal Defense Lawyers president, said in a statement supporting legislation sponsored by Sen. Lisa Murkowski (R-Alaska). “Even well-intentioned prosecutors lack the clear statutory guidance necessary to ensure the full and prompt disclosure to the defense of favorable evidence. That lack of disclosure contributes to unjust and wrongful prosecutions and convictions.”

Murkowski’s bipartisan bill would create a national standard for the early disclosure of information favorable to federal defendants.

“This bill is not about seeking vindication for Ted,” she told reporters last week. “It’s about learning the vital lessons from the Justice Department’s failure of his prosecution and making our criminal justice system work the way our Constitution envisioned that it would.”

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson. Follow the Federal Diary on Twitter: @JoeDavidsonWP.

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