Entries categorized "Ted Stevens Prosecution; Brenda Morris; William Welch II"

William Welch II is Still a Federal Prosecutor

Remember the laundry list of prosecutorial abuses in the Ted Stevens prosecution?  If not, click here and start scrolling.  William Welch's prosecutor's misconduct was so outrageous that U.S. District Judge Emmet Sullivan initiated contempt proceedings against him.  What has happened to Welch?

Mike Scarcella is reporting that "Welch is taking a post as a prosecutor in Springfield, Mass., where he spent much of his career []."

Is that how the Department of Justice punishes prosecutorial misconduct?  By keeping the unethical prosecutors on the payroll?  By moving the unethical prosecutors to another jurisdiction?  

It seems that the Department of Justice has no respect for the law - at least when it's asked to apply the law to unethical prosecutors.  

Indeed, Assistant Attorney General Lanny Breuer praised Welch: 

Breuer called Welch an "extremely smart and thoughtful lawyer. I think he's a dedicated public servant who's devoted his entire professional life to serving the American people."  The Public Integrity Section, Breuer said, is "one of the greatest jewels" of the criminal division. He said he wants to find a "great leader" through a national search. "Bill's shoes will be hard to fill," Breuer said.

Breuer, incidentally, is resisting efforts to reform the Department of Justice.  

DOJ's Fake Mea Culpa in Ted Stevens Prosecution

The United States Department of Justice has received significant attention for its prosecutorial misconduct in the Ted Stevens prosecution - among many other cases.  Mainly, DOJ has had a problem with turning over Brady material.  Named for Brady v. Maryland, Brady material is any evidence favorable to the accused.  Federal prosecutors are required, under the law, to turn it over.  Often they don't.

Promising to get tough on prosecutors, Attorney General Eric Holder has given several speeches apologizing for prosecutorial misconduct.  Taking General Holder at his word, the Judicial Conference began discussing an amendment to the Federal Rules of Criminal Procedure.  Under the amended rules, prosecutors would be required to disclose all Brady material to the defense.  That a new rule is even needed, given the existence of Brady v. Maryland, reveals DOJ's dysfunctional relationship with Brady material.  To federal prosecutors, turning over Brady material is like kissing one's sister.  

The new rule would not be perfect.  It would still allow prosecutors to decide what evidence to turn over to the defense.  Requiring prosecutors to turn over Brady material is question begging: How do we know if the prosecutor handed over Brady material when the prosecutor gets to decide what to turn over?  In the prosecution of Senator Ted Stevens, DOJ admitted that federal prosecutors withheld Brady material that they were required to hand over.  It wasn't until an FBI agent filed a whistleblower complaint that anyone knew about the Brady material.

Instead, the Federal Rules should adopt the same rules applicable in North Carolina - the same rules that freed the Duke lacrosse players.  Under open-file discovery laws, the prosecutor is required to turn over every police report and witness statements she receives.  Under an open-file discovery system, whether something is exculpatory is simply not an issue.  Hand over the files.

An ethical former prosecutor (do all the good ones leave?) supports open-file discovery:

When I was a prosecutor, I generally practiced open-file discovery. That means that if I had a piece of evidence, unless I had a specific, articulable, and legally sufficient reason to withhold it, I dumped it in a box with everything else and shipped it to the defense as soon as I received it. Few things got held back: internal strategy and case evaluation memoranda, the home addresses and personal identity information about witnesses, the identify of confidential informants, and very rarely reports revealing confidential investigative means and methods that had not yielded evidence against the defendant. In many cases I wound up holding back nothing at all. I didn’t bother with timing my disclosures to my own benefit; I generally sent things out the same day I received them myself.

At the Judicial Conference hearing, DOJ stated that it is opposed to reform.  Despite General Holder's many apologizes and promises, here was his answer to protecting against prosecutorial misconduct - reading lessons:

Under fire for its handling of the criminal case against former Sen. Ted Stevens, the Justice Department last week outlined a plan to ensure prosecutors play by the rules when dealing with evidence. But some criminal defense lawyers and judges say the reforms don't go far enough.

On Oct. 13, Assistant Attorney General Lanny Breuer traveled to Seattle to address of panel of lawyers and judges who are considering a change to the Federal Rules of Criminal Procedure that would place more stringent requirements on prosecutors to disclose case information to defense lawyers.

Breuer pitched what he called a "comprehensive approach" to reform -- a plan that includes mandatory annual discovery training for all prosecutors and the creation of a new position at Main Justice that will focus on discovery issues. Breuer also said the Justice Department would agree to put existing case law and federal statutes involving information sharing into one rule in the criminal procedure books -- making the rule a one-stop shop for disclosure obligations.

But Breuer said the department would fight any effort to require prosecutors to turn over all favorable information to the defense.

Mike Scarcella, "DOJ Outlines Changes After Backlash Over Handling of Stevens Case"; "DOJ Begins Search for Public Integrity Section Chief."

Books!  That's their answer.  When the Department of Justice tells federal judges that it's taking prosecutorial misconduct seriously, all know what DOJ means: They are going to buy some books.  

They refuse to be bound by actual rules - rules which may be enforced in a court of law.  The law is what the Department of Justice enforces - not what it follows.

The Realpolitik of the Stevens Dismissal

George Washington University professor Jonathan Turley, the preeminent voice on corruption in Alaska politics, thinks that Attorney General Eric Holder moved to dismiss the Stevens cases to avoid further scrutiny of the DOJ's handling of the prosecution:

The decision of Attorney General Eric Holder to drop the case was portrayed as an act of self-discipline by the Justice Department. However, it also served to try to shutdown any further sanctions and investigation by the court. The Court was already moving to take the same actions and it was clear that, if the case remained in court, further sanctions and investigations were on the way. The Justice Department appears to have let Stevens walk in the hopes that it would be able to stop further sanctions against itself and continued embarrassment. It did not work. Judge Sullivan was not buying it. After all, the Justice Department did everything that it could to stop this inquiry and only had this moral awakening on the eve of another hearing and expected sanctions.

Read the rest here.  Turley makes a great point.  Why dismiss the case "in the interest of justice" right when a federal judge was about to dismiss the same justice?  It's sort of like saying, "You can't fire me.  I quit!" 

Scott Greenfeld, meanwhile, notes that Judge Emmet Sullivan may have lost his patience with DOJ altogether:

But [a sanction in another federal case is a] start.  Had it just been Ted Stevens, I would be reluctant to gush about Judge Emmet Sullivan's statements and actions.  Stevens was just too easy to fall into the isolated incident category.  But with Judge Sullivan's words and deeds in the Batarfi case, I believe he means business.  Given the nature of the federal judiciary, this is quite a brazen act of bravery.

The timing and psychology of Judge Sullivan's actions are interesting.  Judge Sullivan knew about the prosecutorial misconduct in the Stevens case while the case was pending.  He refused to dismiss the case.  Why? 

Judge Sullivan gave the prosecutors the benefit of the doubt.  He wanted to believe that the Public Integrity Section of the United States Department of Justice had some integrity.  There is a deep need to believe that our power structures have some justice to them.  DOJ went too far.  They could have stopped their lies and probably have never turned Judge Sullivan off to them.  They kept telling more lies.  Judge Sullivan finally realized that the mistakes were not good-faith errors or incompetence.  He realized that everything he had ever been told was a lie.

The Public Integrity Section mugged Judge Sullivan.  Judge Sullivan will always watch his back when dealing with the United States Department of Justice - which is as it should have always been.

Another Report from the Ted Stevens Case

Unfortunately I don't live in D.C., so I couldn't attend these hearings.  Fortunately the Legal Times has been providing excellent coverage.  The latest:

U.S. District Judge Emmet Sullivan said Tuesday that in his 25 years on the bench, he had never seen anything approaching the "mishandling and misconduct" perpetrated by the government in the case of former Alaskan Sen. Ted Stevens, who was convicted on corruption charges in October. 

At a hearing Tuesday morning in the U.S. District Court for the District of Columbia on the government's motion to dismiss, Sullivan said Stevens' case was symptomatic of a larger trend of misconduct. The judge urged his colleagues around the country to enter exculpatory evidence orders at the outset of every criminal case, and to require that exculpatory material be turned over in a usable form.

Hopefully other federal judges are paying attention.  (My other posts on the prosecutorial misconduct that occurred in the Stevens trial are available here.)

Brenda Morris, Other Stevens Prosecutors to Face Criminal Contempt Proceedings


Dissatisfied with the pace of DOJ's internal investigation into the bungled prosecution, Sullivan said today that he would commence criminal contempt proceedings against the original trial team and their supervisor, and appoint a non-government lawyer to prosecute the case.

That includes William Welch II, chief of the Justice Department's Public Integrity Section; Brenda Morris, his principal deputy chief and former lead prosecutor in the case, public integrity prosecutors Edward Sullivan and Nick Marsh; and Alaska-based assistant U.S. attorneys James Goeke and Joseph Bottini.

Federal Judge Fed Up With Brenda Morris and William Welch II

U.S. District Judge Emmet Sullivan has lost all patience with the unethical DOJ lawyers who prosecuted former Senator Ted Stevens:

Note to the Justice Department, FBI and IRS: Don't destroy any evidence in the Ted Stevens prosecution.

That order came from U.S. District Judge Emmet Sullivan, acting on his own, on Sunday. Sullivan demanded the immediate preservation of e-mails, notes, memos, investigative files, audio recordings and electronically stored information. The judge didn't provide any context to the order.

In a separate order, the judge Sunday ordered the Justice Department to turn over to the court by 10 a.m. Monday copies of all the material the department has gathered in the post-trial phase of the Stevens case. Prosecutors have been turning over that evidence, by court order, to Stevens' lawyers at Williams & Connolly. Sullivan wants to take a look at the material, too. It wasn't immediately known Monday whether Justice fulfilled its obligation to turn over documents.

A federal judge is working on Sunday, issuing orders requiring parties to preserve evidence.  Not good.

More on Brenda Morris' Prosecutorial Misconduct

Brenda Morris, the lead attorney who committed prosecutorial misconduct in the Ted Stevens case, might have a history of prosecutorial misconduct.  I'll investigate later.  In the meantime, read this article:

Two weeks before tax day, married lawyers Alan and Jean Brown were signing their names to the back of a familiar-looking green and yellow U.S. Treasury Department check that most Americans associate with a tax refund.

The check the San Antonio couple endorsed on March 30 was an Internal Revenue Service refund of sorts -- but not in the traditional sense.

The $1.34 million check was the result of a settlement between the Browns and the government in Alan Brown, et al. v. United States, a Federal Tort Claims Act (FTCA) suit the couple filed three years ago in the U.S. District Court for the Western District of Texas.

The couple filed the civil suit after they were caught up in a complicated tax prosecution in which Alan Brown, a well-known criminal defense attorney with Brown & Norton, and Jean Brown, a family law solo, allege they were targeted by overzealous Internal Revenue Service agents, which led to the Browns being indicted in 2003 by a federal grand jury in Austin, Texas, for allegedly filing false personal tax returns between 1994 and 1997.


Brenda Morris, a chief deputy in the U.S. Department of Justice's Public Integrity Section who prosecuted the Browns, did not return a telephone call seeking comment.

A $1.34 million dollar settlement for a false prosecution?  That's a lot of smoke.  Does it point to yet another Morris fire? 

Stevens' Case Motion to Dismiss: Must Read

I've obtained a copy of the Motion to Dismiss the Department of Justice filed in the Ted Stevens prosecution.  The motion itself is only two pages.  You must read it.  You may download it here.

In the motion, DOJ admits that the prosecutors hid evidence from the defense.  The details of how Brenda Morris and William Welch II did so are available here.  The motion also admits that prosecutors lied about hiding evidence.  The money quote: 

The Government recently discovered that a witness interview of Bill Allen took place on April 15, 2008. While no memorandum of interview or agent notes exist for this interview, notes taken by two prosecutors who participated in the April 15 interview reflect that Bill Allen was asked about a note dated October 6, 2002, that was sent from the defendant to Bill Allen. The note was introduced at trial as Government Exhibit 495 and was referred to as the "Torricelli note." 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. 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.

In addition, the April 15 interview notes indicate that Allen estimated that if his workers had performed efficiently, the fair market value of the work his corporation performed on defendant's Girdwood chalet would have been $80,000. Upon the discovery of the interview notes last week, the Government immediately provided a copy to defense counsel.

Defendant Stevens was not informed prior to or during trial of the statements by Bill Allen.... The Government also acknowledges that the Government’s Opposition to Defendant’s Motion for a New Trial provided an account of the Government’s interviews of Bill Allen that is inaccurate.

According to the docket sheet, there will be a hearing on April 7th:

MINUTE ORDER as to THEODORE F. STEVENS. The Court, sua sponte, schedules a hearing on the Government's Motion to Set Aside the Verdict and Dismiss the Indictment with Prejudice for Tuesday, April 7, 2009 at 10:00 a.m. in Courtroom 24A. Signed by Judge Emmet G. Sullivan on April 1, 2009. (AS) (Entered: 04/01/2009)

Legal Experts Opine on Stevens Case Dismissal

Today, citing prosecutorial misconduct, Attorney General Eric Holder has moved to dismiss the corruption charges against former Senator Ted Stevens.  Thus far, legal experts are not impressed.

Law professor Jonathan Turley, who has followed corruption in Alaska politics for over a decade, states:

The Justice Department will be dropping all charges against former Senator Ted Steven (R., Alaska) due to the misconduct of its own prosecutors. The actions of the Justice Department in the case has been a continued scandal and the question is now what action will be taken against these prosecutors who scuttled a major criminal case through unethical and grossly negligent conduct. On closer examination, however, the action by Attorney General Eric Holder falls a bit short.

What is astonishing is that the Justice Department took this long to do the right thing despite numerous hearing with Judge Sullivan who was quite angry at the unethical practices. Instead, they continued to force litigation and waste the court’s time in trying to avoid such consequences. It is throwing in the towel just before the court was expected to impose serious sanctions, including the dismissal of the case. Notably, by voiding the case, the Justice Department may also hope to end the increasingly embarrassing inquiry into its actions during the case and the role of specific prosecutors (including high-ranking officials still at DOJ).

Read the rest here.  My collected posts about the prosecutorial misconduct in the Ted Stevens trial is here.

DOJ to Dismiss Charges in Senator Ted Stevens Case

Senator Ted Stevens was a corrupt man.  He has probably broken as many laws as he shepherd through Congress.  Finally, the Public Integrity Section of the Department of Justice was able to build a case against him.  The case was strong.  Unfortunately for the public, Ted Stevens will never see prison walls.

The lawyers prosecuting him - Brenda Morris and William Welch II - engaged in extensive prosecutorial misconduct.  They withheld evidence from the defense that the law required them to disclose.  They lied to a federal judge.  You may read the specifics at this link.

On the docket in the next two weeks is a contempt proceedings against Morris and Welch.  In an unusual move, the Attorney General himself - Eric Holder - personally reviewed the Stevens case.  He agreed with the legal commentators who have been proclaiming that prosecutorial misconduct occurred.

Attorney General Holder has thus decided to dismiss the charges against Ted Stevens:

In a move first reported by NPR, U.S. Attorney General Eric Holder said he has decided to drop the case against Stevens rather than continue to defend the conviction in the face of persistent problems stemming from the actions of prosecutors.

"After careful review, I have concluded that certain information should have been provided to the defense for use at trial," Holder said in a statement Wednesday. "In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial."

The rest of the NPR article is here.

In light of General Holder's move, we are left wondering what - if any - sanction Morris and Welch will receive.  Everyone now agrees that they committed prosecutorial misconduct.  Will they be suspended from the Department of Justice?  Will the D.C. State Bar disbar Morris and Welch?

The dismissal of the charges against Stevens should only be the beginning of the case against Morris and Welch.  Whether Morris and Welch will receive any punishment remains an open issue.