Prosecutor and Government Misconduct

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Posted on April 2, 2009 by Thomas Withers
Shocking Governmental Misconduct Leads to Dismissal of Charges Against Senator Stevens
As everyone knows by now, the Department of Justice has moved to dismiss with prejudice the indictment against former Senator Ted Stevens. While the pleadings in this case are extremely detailed in laying out the factual and legal landscape of the government’s misconduct, at the end of the day, it seems the defense had it right when they argued during trial, in one of their many motions to dismiss that “the government’s misconduct was intentional. This case must be dismissed. No other remedy will deter future prosecution teams from engaging in the same tactics. No other remedy will prevent what has happened in this case from happening again.” In that motion, the government set out in exquisite detail how the government agents and attorneys had knowingly withheld Brady material and knowingly put on false and misleading evidence.
After Senator Stevens was convicted one of the co-case agents, Agent Chad Joy, filed a self styled whistle blower complaint that detailed how the lead case agent, Agent Mary Beth Kepner, had intentionally redacted Brady and Jencks Material that the defense was entitled to receive, and how one of the prosecutors, Nick Marsh of the Department of Justice Public Integrity Section, schemed to relocate a prosecution witness, who had also been subpoenaed by the defense.
Of course, when that complaint was made public, defense counsel, again moved to dismiss the indictment arguing that the “complaint submitted by FBI Agent Chad Joy now confirms what the defense has long believed and alleged: the government cheated and lied in order to obtain a verdict against Senator Ted Stevens.”
Litigation then ensued where the district court was trying to sort out who knew what and when. For almost 3 months, Brenda Morris, the lead prosecutor continued to file pleadings defending the government’s actions, that the court ultimately rejected. Judge Sullivan noted that “over and over again the government has been caught in false representations and otherwise failing to perform its duties . . . and over and over again, when caught, the government has claimed that it has simply made good faith mistakes.”
In mid-February the Department of Justice brought in a new team of prosecutors after members of the original team were held in contempt. The district court withheld ruling as to what sanction is to be imposed with respect to that finding of contempt. No doubt collateral litigation will continue regarding the appropriate penalty for the prosecutors’ contumacious conduct.
Ultimately that new team of prosecutors concluded that evidence material to the defense of Senator Stevens was withheld and that government pleadings regarding that material evidence were inaccurate. The government concluded, in moving to dismiss the indictment that “based on the totality of circumstances and in the interests of justice, it will not seek a new trial.”
A press release by Williams & Connolly, Senator Stevens’ counsel, noted that had the district court simply “accepted the word of government prosecutors as is done often in our courts, the extraordinary misconduct would never have been uncovered.”
The DOJ Office of Professional Responsibility is conducting an investigation into the conduct of the government agents and prosecutors.
District Court Judge Sullivan has scheduled a hearing for next Tuesday, April 7, 2009 on the government’s motion to dismiss.

Tags: High Profile Cases, dismissal, prosecutorial misconduct

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