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Judge in Stevens Dismissal Known for Tenacity

By Del Quentin Wilber
Washington Post Staff Writer
Friday, April 10, 2009

U.S. District Judge Emmet G. Sullivan was irate when he accused the Justice Department of "hiding the ball" after its lawyers did not produce a document that undercut a key witness.

"Unfortunately, I can't trust the government," he said, adding that "someone's going to pay a price."

It was the first of two tirades in a week that the judge let loose on government lawyers over their handling of evidence. First, he rebuked them in a case challenging the detention of a man at the U.S. military prison at Guantanamo Bay, Cuba. The second scolding came during a packed hearing Tuesday, before he dismissed the conviction of former senator Ted Stevens (R-Alaska) on corruption charges.

The harangues captured the vintage Sullivan, who has spent more than 20 years on the bench, recently presiding over a series of high-profile cases and building a reputation as a formidable, if unpredictable, presence in the courtroom.

Colleagues say the judge's repeated criticism of prosecutors in the Stevens case laid the foundation for the dismissal, a stunning end to one of Washington's most closely watched political trials. Without Sullivan hounding the Justice Department, they say, a new group of prosecutors may never have been assigned to the case. That team unearthed notes that contradicted testimony of a key government witness, leading to the department's request that Sullivan toss out the conviction and indictment.

At the federal courthouse, and lately in government and political circles, the judge has become a well-known figure. He blocked snowmobiles in national parks, is overseeing the sentencing of three people who pleaded guilty in a D.C. tax scam and handled a lengthy trial brought by animal rights activists who alleged that circus elephants were being mistreated.

In the case of the detainee, Sullivan's tirade strayed from the document into broader territory, when he called Guantanamo Bay a "travesty" and "horror story" that "ranks up there with the internment of Japanese American citizens years ago."

He threatened to bring U.S. diplomats into court for updates on their efforts to find the detainee a new home, then ordered the government to provide the document to every judge presiding over any detainee case.

In some quarters, Sullivan is considered a hero for holding government lawyers accountable. But his outspoken nature has brought him notice, even if he usually reins himself in. Often that comes after a consultation with his law clerk, Addy Schmitt, who during hearings regularly passes the judge notes about legal issues and other court matters.

During a critical phase of the Stevens trial, the judge grew upset that prosecutors presented faulty business records to the jury. He said he was going to tell jurors that prosecutors had introduced evidence that they "knew was not true," an instruction that could undercut their credibility. The next day, however, Sullivan was more restrained, telling the jury to ignore the documents without calling attention to prosecutors' motives.

"His rulings were all reasonable," said Chief U.S. District Judge Royce C. Lamberth. "He does wear his heart on his sleeve sometimes, but so do I. . . . It's probably not the first quality that comes to mind when you think of a judge."

Last year, Sullivan grew so agitated during the plea hearing of a 61-year-old man accused of pocketing nearly $1.6 million in the massive D.C. tax scam that the judge ordered him to jail before his sentencing, something even prosecutors had not requested.

A few days later, the judge reversed course and released the man.

During the trial of a burglary suspect in the mid-1980s, Sullivan walked off the bench in disgust after a police officer gave conflicting testimony, said Roscoe Howard, a friend and former federal prosecutor.

After calming down, Sullivan declared a mistrial because he had prejudiced the case. "He did the right thing," Howard said. "He is passionate, but he understands what he thinks is the right thing and eventually he does the right thing."

Sullivan is an avid Redskins fan and an aggressive tennis player, and also spends hours tending the flower garden at his Northwest Washington home, friends say.

The 61-year-old grew up near Howard University and proudly calls himself a "native Washingtonian." His father was a police officer, and Sullivan thought of following in his footsteps. But he turned to law instead, telling friends that he could do more good as a lawyer.

He was appointed a Superior Court judge in 1984 and even in his first years on the bench was not afraid to push the law. After hearing Supreme Court Justice Thurgood Marshall talk about using the law to right social wrongs, Sullivan issued one of the country's first rulings ordering a landlord to pay punitive damages to a tenant for what Sullivan called "wanton, willful, fraudulent and malicious conduct."

Sullivan took another rare step this week, assigning an outside lawyer to investigate six prosecutors accused of mishandling evidence and witnesses in the Stevens case.

The lawyer will recommend to Sullivan whether the judge should try the prosecutors on contempt charges. Sullivan told the courtroom that he did not have faith in the government to investigate the prosecutors.

But his outspoken criticism may also keep him from presiding over a contempt trial. Experts say the judge's words on Tuesday -- "I have never seen anything approaching the mishandling and misconduct I've seen in this case" -- sound as though he has made up his mind. In the interest of fairness, they say, the judge will have to recuse himself from any trial.

"It's clear to me that he wants to keep control of this," said Stephen Gillers, a law professor at New York University. "But it's also clear to me that he can't."

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