Stevens prosecutors comply with order

STEVENS: Prosecution attorneys are held in contempt of court.

February 13, 2009 

WASHINGTON -- The judge who oversaw Ted Stevens' corruption trial on Friday held in contempt four Justice Department prosecutors for failing to turn over documents to the former U.S. senator's lawyers.

Calling their conduct "outrageous" as employees of "the largest law firm on the planet," U.S. District Judge Emmet Sullivan told the Justice Department attorneys Friday afternoon that they must give the documents to Stevens' legal team by 5 p.m.

Later in the afternoon, a spokeswoman for the Justice Department sent out an announcement saying, "The Government has complied with the court's order and produced to defense counsel the documents discussed at today's hearing. We will continue to litigate in court matters related to the jury's conviction of Senator Stevens."

The judge said he wasn't going to address on Friday what sort of penalties the contempt citing will have for the Justice Department lawyers. They include the head of the Justice Department's Public Integrity Section, William Welch; the lead trial attorney in the case, Brenda Morris; the attorney who was handling the work product question within the Justice Department, Kevin Driscoll; and the chief of the U.S. Justice Department's criminal appeals section, Patty Merkamp Stemler.

Sullivan told them he would address the questions of sanctions when the case concludes.

The documents in question relate to what prosecutors knew -- and when -- about the whistle-blower status of Chad Joy, an Anchorage FBI agent who worked on the case. Joy in December accused a fellow FBI agent of an improper relationship with the lead witness in the case, Bill Allen, the former head of the Alaska oil services company Veco. Joy also alleged in his complaint that prosecutors in the case violated FBI policy -- as well as the rules for fair trials -- during the investigation and Stevens' trial last year.

The Justice Department maintained that the documents sought by the defense were privileged work documents and not subject to review by Stevens' lawyers. They include e-mails between attorneys within the Public Integrity Section and others in the Justice Department regarding Joy's status as a whistle-blower.

Sullivan disagreed with the department's assertion, and ordered on Feb. 3 that they turn them over. There is a precedent for releasing such work when an attorney's conduct is at issue, Sullivan said in court Friday.

"I have no interest in poring over the government's files," Sullivan said Friday, but added that he wants to know "why I was told certain things I was told."

Stevens was convicted in October on seven counts of lying about gifts -- including renovations that doubled his home in size -- from Allen and others on financial disclosure forms. The 40-year veteran of the U.S. Senate, who was on trial in Washington D.C., in the midst of his re-election bid, lost his seat to Democrat Mark Begich.

Sullivan's patience was tested early in the trial when the Justice Department sent home a potential witness early without consulting him or notifying the defense. The Justice Department's misconduct, including failing to turn over to Stevens' lawyers evidence that could be favorable to the senator's defense, irritated Sullivan to the point where he considered a motion to declare a mistrial.

But though Sullivan's irritation with prosecutors ran hot during the trial, it would often cool once he had settled on a solution. Friday's contempt citation, which came at the request of Stevens' lawyers in one of their filings last week, is the most extreme against prosecutors Sullivan has taken in the case.

And while Sullivan has been repeatedly annoyed by the government team, the facts of the case remain the same: that Stevens took thousands of dollars of gifts and services, didn't report them, then schemed to cover up his omissions.

The judge's concerns date to a Jan. 14 hearing to consider whether to release to the public an unredacted version of Joy's complaint, which Sullivan had reluctantly put under seal. Both Morris, and her boss in the Public Integrity Section, Welch, also told Sullivan in the hearing that Joy had no whistle-blower status.

That information angered Sullivan, who told prosecutors he would have handled the request to redact the complaint differently the month before had he known Joy wasn't considered a whistle-blower. But then just one day later, prosecutors filed a startling admission: They had erred in saying that Joy had no whistle-blower status.

In a Jan. 30 letter to the court, Welch apologized for "misunderstanding and misuse" of the phrase "whistle-blower" in connection with Joy's complaint.

Welch also apologized for telling the judge that all of the government employees who were mentioned in Joy's complain had waived their objections to being named in open court. Not all had given their consent, Welch admitted last week.

Still, Sullivan urged lawyers on both sides of the case to try to avoid filing sealed documents -- even though he had a closed hearing with attorneys in the case at the end of Friday's public proceedings.

"Just don't do it," he told the lawyers earlier. "The public has a right to know what's going on in this case. It's a public criminal trial."

Sullivan on Friday also set an April 15 hearing on several post-trial discovery matters. He has not yet set a date for sentencing in the case.

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