Reading slowly and deliberately from a prepared statement, Judge Emmet Sullivan of the federal trial court in Washington questioned whether prosecutors in a high-profile drug trafficking case violated the D.C. Rules of Professional Conduct by making false statements to the court or failing to correct false statements.
A little background: prosecutors last week moved to dismiss the conspiracy case against businessman Zhenli Ye Gon, accused in an international drug trafficking scheme with roots in Mexico and China. Last week in court, Sullivan had a lot of questions about the sudden decision to dump the case. Sullivan said today he will grant the government’s request.
But the judge also wants prosecutors to tell him why he should not be skeptical about their position that Justice Department lawyers did not violate their obligation to turn over favorable information to Ye Gon’s attorneys.
Sullivan is no stranger to disputes about Brady material. He presided over the Ted Stevens prosecution, which ended with the Justice Department seeking to reverse the jury verdict and dismiss the indictment based on the revelation that prosecutors withheld key evidence from defense lawyers. Sullivan obliged the department in April—and he launched a criminal investigation into the Stevens prosecution team.
“This is the second time in less than three months in a high profile case where the Department of Justice has come before this court and asked it to dismiss an indictment after allegations that Brady-Giglio information was not timely produced to the defense,” Sullivan said today.
At one point during his remarks Sullivan quoted from the U.S. Attorney’s Office manual when he spoke about the prosecution’s obligation to err on the side of disclosing exculpatory material. “All of this raises legitimate questions about whether the government ever intended to abide by its constitutional obligation to provide this information to the defendant,” Sullivan said.
The judge suggested the prosecution’s conduct may not have comported with the U.S. attorneys manual and with Attorney General Eric Holder Jr.’s oft-repeated statement that the job of the prosecutor is not to win cases but to do justice.
He also questioned whether prosecutors in the Ye Gon case violated the D.C. Rules of Professional Conduct with respect to “candor to tribunal”—that is, whether certain statements made to the court and in pleadings were false. But the judge said he was not making any formal finding of wrongdoing.
Paul O’Brien, chief of the Justice Department’s Narcotic and Dangerous Drug Section, said the government will respond in writing to Sullivan’s concerns “to educate the court better” about the timing of events in the Ye Gon case.
O’Brien maintained that the government did not violate its obligations to provide favorable material to Ye Gon’s lawyers.