PrintApril 9, 2009
Policing the Prosecutors
In recent years service as a successful crusading prosecutor has been a pathway to political success (See Giuliani and Spitzer, for example) and high paying positions in the private sector. At the same time, to me anyway, there has been an increasingly suspicious overreaching by too many prosecutors. The courts, bar associations and the Department of Justice are not exercising sufficient supervision of their work, for us to feel comfortable with the enormous power they wield.
In the case of the Duke lacrosse team -- and in many of the high profile cases in which the prosecution's conduct has looked less than kosher to me --the press, desirous I suppose of inside scoops leaked to it by the prosecution, never really questions this conduct or fairly reports what the defendants turn up as the case proceeds. Mike Nifong would probably still be in office no matter what happened in that dreadful case had it not been for the brilliant (and expensive) defense team and the hard work of the blogger K C Johnson, a professor whose Durham in Wonderland website exposed the evil doing in Nifong's office and Duke University.
Anyone who pays the least bit of attention to the matter knows that the never ending prosecution of Tom DeLay by Ronnie Earle has about as much merit as Dan Rather's expose of George W. Bush's National Guard Service , and yet it caused DeLay to give up his powerful position in the House as the matter drags on interminably.
In the Libby case, the press avoided what I thought was a critical bit (among many) of prosecutorial legerdemain: The last minute admission in court that respecting the first interview of the key witness, the late Tim Russert, the newscaster told the FBI agent Eckenrode (missing from the case by the time it was tried) that he may well have told Libby that Valerie Plame worked at the CIA at the very time Libby recalled Russert had.
The original copy of those notes was somehow missing from the prosecution's files and could not, therefore, be given to the defense -- who surely would have been able to make a great deal more of this had the agent and his notes been available at trial.
So, it was with great interest that I read that the Department of Justice attorney, Brenda Morris, already held in contempt by Judge Sullivan in the matter involving the wrongful prosecution of Senator Ted Stevens, and now under investigation by both the Department of Justice and the special prosecutor chosen by the Judge, was also a supervisor in the Libby case.
In a short short bio preceding a presentation to Stanford Law Center, we learn that Brenda Morris, one of the lawyers in the Stevens case under investigation for wrongdoing in the prosecution of that case, was involved in a number of other familiar cases, including the Lewis Libby case:
For the past fifteen years, Brenda Morris has prosecuted political corruption crimes for the Justice Department's Public Integrity Section, which oversees all federal public corruption cases. As deputy chief, Brenda is the highest-ranking official in the Section who is not a political appointee. She will discuss her role supervising high-profile cases, including the Jack Abramoff investigation and the Scooter Libby trial, as well as her experience working as a career prosecutor under Alberto Gonzales. Sponsored by: Stanford Law & Policy Review (SLPR), Levin Center for Public Service & Public Interest Law, Stanford Criminal Justice Center, Criminal Law Society, Stanford Mock Trial, Black Law Students Association, and Women of Stanford Law.
We also have learned this is not the first time her professional ethics have hurt innocent defendants. In that case the department was forced to compensate the defendants over $1.3 million and still it is apparent that she was allowed to continue on in this powerful post with so little supervision.
The Judge in that case wondered what took so long for people to clamp down on her. Guillermo Contreras reported in the San Antonio Express-News:
"This is a prosecutor who needs to be removed, and I would hope the attorney general utilizes the same test of integrity as he did in the Stevens case," said U.S. District Judge Orlando Garcia, who ruled against Morris in Brown's case. "Though (the Brown case) is several years old, there is no statute of limitations on integrity."Brown's lawyers say Morris never reined in the agents and proceeded unfairly."I wasn't shocked about her behavior. I was shocked that anybody did anything about it," Brown said, referring to the Stevens case. "It restores my faith - a little bit - in the Justice Department. I felt there was enough in my case that they would have taken action, maybe some sanctions. It surprised me when I saw her on the (Stevens) case."
I am dismayed to learn that so many people are under the impression that the Stevens case was dropped because of some mere technicality, and not because the case against him was riddled with perjured testimony and evidence of his innocence was unlawfully hidden by the prosecution team. I ask if you hear anyone say anything so foolish that you set them straight.
Stevens had an A- Frame house in Alaska for which he'd engaged a contractor (Veco) to do some renovation work. He asked for and received bills for this work for which he paid Veco in full in the sum of $150,000. The government claimed that the job was really worth $250,000 and that Stevens violated the law when he failed to disclose as a gift the additional $100,000 on his Senate ethics reporting form. The government never charged that VECO had sought any favors for this "gift" or that Stevens had done any for VECO. The crux of the case was only about whether or not he had paid fair value for the work.
The foreman on the job was a Mr. Allen. On April 15, 2008 , before Stevens was indicted ,the government interviewed Allen and he provided a great deal of evidence that established that Stevens' defense was credible. For example, he valued the work done for Stevens at $80,000, about ½ of what Stevens had paid for it and about 1/3 of what the government said it was worth. The government had an obligation to turn this over to Stevens and never did. Had they done so, much of Allen's testimony for the prosecution on the stand would surely have been discredited on cross examination. But there is more.
On Oct. 6, 2002, Stevens sent a handwritten note to Allen asking that it be "done right" making clear he wanted to pay in full for Veco's services, adding
"You owe me a bill." "Remember Torricelli, my friend. Friendship is one thing, compliance with the ethics rules entirely different."
Confronted with this note, Allen said he'd met with a Mr.Persons, who told him the note from Stevens shouldn't be taken seriously. As reported by Erika Bolstad and Richard Mauer of the Anchorage Daily News:
"Don't worry about getting a bill -- Ted's just covering his ass," Allen quoted Persons as saying.The Allen statement came at the close of testimony for the day.With the jury out of the courtroom, defense attorney Sullivan cried foul. In all the material turned over to the defense by the government under fair-trial rules, there was nothing from Allen quoting Persons like that, he argued, and then accused the government and Allen of conspiring to make up the testimony.Even worse, Sullivan said, was that Allen's testimony came at the end of the day, leaving the jury to ponder it, unchallenged, overnight.The newly discovered April 15 interview [ed: Not disclosed to the defense until after the trial and conviction] wasn't transcribed the way interviews with Allen and other witnesses had been, on FBI form 302s or memorandums of interviews, the Justice Department said this morning. Rather, it was discovered in the notes of attorneys who questioned Allen that day, five and half months before his testimony."The notes of the April 15 interview indicate that Bill Allen said, among other things, in substance and in part, that he (Bill Allen) did not recall talking to Bob Persons regarding giving a bill to the defendant," the Justice Department said in its motion to dismiss the case. "This statement by Allen during the April 15 interview was inconsistent with Allen's recollection at trial where he described a conversation with Persons about the Torricelli note."[snip]"Defendant Stevens was not informed prior to or during trial of the statements by Bill Allen on April 15, 2008," the department's motion for dismissal said. "This information could have been used by the defendant to cross-examine Bill Allen and in arguments to the jury."
But there is more.
Here is what Judge Sullivan noted when he empowered his own special counsel to look into further proceedings against the prosecutors:
Returning a witness to Alaska who had been under defense subpoena, Sullivan said the prosecutors at trial called it, "not material."Blacking out exculpatory information from an FBI report, the prosecutors called this, "a mistake."Not providing a key grand jury transcript, "Inadvertent."
Submitting false business records into evidence a "mistake."Saying key witness Bill Allen was not reinterview[ed] by prosecutors close to indictment, "mistaken understanding."
Prosecutors work hard and must have some zeal to do their job well, but as they alone have access to so much of the relevant evidence and are bound to review it to comply with legal disclosure requirements, they should be subject to some reasonable scrutiny. That there was none here is evident from the fact that no one apparently reported to the Attorney General that over five months before indicting Stevens, the government had strong, credible exculpatory information which would clear him of any suspicion of wrongdoing.
Given Morris' prior history how could she have been allowed to continue with such light (if any) oversight?
Years ago when I worked as a prosecutor in the Department of Justice criminal division (Office of Special Investigations), we had to clear a number of hurdles before cases were initiated. Among those hurdles were establishing to the satisfaction of the head of the office and the head of the criminal division that we had a solid case with good evidence and could overcome the defenses we anticipated would be raised. We were expected in the process to be candid about the evidence .
In this case, the department broke with long standing policy not to bring charges against a political figure just before an election, a policy of obvious merit if we are not to have prosecutors deciding the outcome of election contests. And the prosecutors involved had had in their possession for months prior to the institution of the case substantial evidence that their case was bunk.
Ethical rot in the arm of the Justice Department tasked with ensuring the integrity of public officials is unacceptable. In this case, a change in the political composition of the United States Senate was a direct consequence of the failure to disclose exculpatory evidence. The political integrity of our democracy is at stake.
