Updated 3:39 p.m.
As the special prosecutor in the Ted Stevens case appeared on Capitol Hill to testify about prosecutorial abuses, the Justice Department today issued a statement urging members of Congress not to meddle with discovery practices.
The special prosecutor, Henry "Hank" Schuelke III, appointed by a federal trial judge in Washington in April 2009 to investigate allegations of government misconduct, testified today about his 525-page examination of the botched case against Stevens.
The report, which did not recommend criminal charges against any Stevens prosecutor, said two assistant U.S. attorneys on the public corruption case intentionally withheld information from Stevens’ defense attorneys. Schuelke and a colleague, William Shields, also explored the apparent mismanagement of the case against Stevens, noting a lack of adequate supervision.
“This is a sad story,” Schuelke, of Washington’s Janis, Schuelke & Wechsler said today. “I take no joy in having come to these conclusions. I hope I never have to again.”
Schuelke, speaking publicly for the first time since his report was published March 15, told members of the Senate Judiciary Committee that they should consider pending legislation that targets discovery reform.
Sen. Lisa Murkowski (R-Alaska) earlier this month introduced such a bill to broaden the scope of information that prosecutors must disclose to defense lawyers.
Internal Justice Department policy mandates a broad discovery practice, urging prosecutors to turn over more information—the good and the bad—than less. But those guidelines don’t carry the force of law. “What is the principled reason for opposing legislation that does just that?” Schuelke asked today at the hearing.
DOJ said in a statement (PDF)L today that proposed discovery legislation “would upset our system of justice by failing to recognize the need to protect interests beyond those of the defendant.”
The statement, which was unsigned, said such legislation “would radically alter” the balance between protecting defendant rights and safeguarding against witness retaliation, disclosing ongoing investigations and protecting the national security.
DOJ said “a new discovery standard could result in the disclosure of investigative steps taken, investigative techniques or trade craft used, and the identities of witnesses interviewed during counterterrorism and counterespionage investigations.”
This afternoon, more than 100 lawyers signed a letter urging Congress to take up criminal discovery reform. The signatories included former Deputy Attorney General Larry Thompson, author and SNR Denton partner Scott Turow and lead Stevens defense counsel Brendan Sullivan Jr. of Williams & Connolly.
"Our experience leads us to believe that the vast majority of prosecutors act in good faith to fulfill their constitutional and legal obligations," the letter said. "However, federal courts, the DOJ and other entities have for years articulated inconsistent, shifting, and sometimes contradictory standards for criminal discovery, leaving it up to individual prosecutors to navigate this legal maze and determine the scope of their obligations to disclose information."
Today’s Senate Judiciary Committee hearing did not explore the potential benefits and drawbacks of discovery reform in depth.
The arguments the Justice Department made in its statement today have long been pitched to a Judicial Conference committee that has studied whether to amend the federal criminal rule that governs discovery.
Schuelke today spent a considerable amount of time fielding questions about why he did not hold accountable higher-level DOJ officials for the failures of the Stevens prosecution.
The Stevens report pinned blame on two assistant U.S. attorneys in Alaska, James Goeke and Joseph Bottini, for allegedly intentionally withholding favorable information from Stevens counsel at Williams & Connolly. Attorneys for Bottini and Goeke deny either prosecutor committed intentional misconduct.
Bottini's lawyer, O'Melveny & Myers partner Kenneth Wainstein, said in a statement after the hearing today: “We are confident that Congress and the American people will ultimately see that the report is based on nothing more than flawed reasoning, slanted factual analysis, and a process that denied our client and his colleague the fundamental right to answer and test the accusations against them."
Sen. Chuck Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, asked whether the former chief of the agency's Public Integrity Section, William Welch II, bears responsibility for failures. “Shouldn’t the buck stop at the boss at the top?” Grassley asked.
Schuelke noted that his report does address mismanagement concern. But, he said, the object of the investigation was to determine whether any of the Stevens prosecutors should be charged with criminal contempt for failing to follow court orders.
The Stevens report said there was no evidence to support the claim that either Welch or his top deputy, Brenda Morris, intentionally kept secret information from Stevens’ defense attorneys.
The report said Morris and Welch abdicated their supervisory roles over the Stevens prosecution. Morris, who was named lead counsel shortly before Stevens was indicted, said she needed to get up to speed on the case. Welch told Schuelke he was left doing Morris’ job in Public Integrity Section.
When Grassley suggested that Morris and Welch should have been more active in the case, taking direct responsibility for discovery and other matters, Schuelke responded: “No question.”
The Justice Department has yet to publish a companion investigation, an internal probe by the department’s Office of Professional Responsibility that looked at whether any of the prosecutors violated legal ethics rules.
DOJ said in a statement this morning that OPR’s misconduct review is in its final stages. “To the extent it is appropriate and permissible under the law, we will endeavor to make the OPR findings public when that review is final,” the statement said.
Senate Judiciary Chairman Patrick Leahy (D-Vt.) said he wants his committee to review the internal ethics report.
“Prosecutorial misconduct cannot be tolerated,” Leahy said at the start of the hearing. “What happened in the Stevens case should not happen again.”
Photo by NLJ photographer Diego M. Radzinschi