Legal News

Pregaming the Ted Stevens-Prosecutors Investigation

By Ashby Jones

Ted Stevens has been removed from the criminal case bearing his name, but Washington federal district court judge Emmet Sullivan on Tuesday ensured that the case will continue on, albeit in a different form. Judge Sullivan appointed Henry Schuelke, to investigate six DOJ lawyers — all career prosecutors — to determine whether any of them should be prosecuted for criminal contempt for violating Sullivan’s orders to turn over so-called Brady material — material that contains exculpatory information. Here are stories from the WSJ, the NYT and the WaPo. (In related news, on Wednesday, word broke that AG Eric Holder would appoint Mary Patrice Brown, a well-respected career prosecutor in the District, as the new leader of the DOJ’s Office of Professional Responsibility.)

Still, we have a lot of questions about this investigation. What will it look like? What will Schuelke be looking for? What types of powers will he likely have? What are the possible penalties for the six prosecutors?

For answers, we chatted with a couple seasoned white-collar defense lawyers in Washington: Zuckerman Spaeder’s Aitan Goelman and Cozen O’Connor’s Barry Boss. Our questions and answers are below.

How rare are investigations or prosecutions of prosecutors? “They’re not unprecedented, but they’re extremely rare,” said Goelman, a former federal prosecutor himself. In Boss’s opinion, such investigations don’t happen often enough. He says that there’s been a feeling in the white collar community for some time that “exculpatory evidence has been withheld on too many occasions.” Boss says that it’s difficult to get “appropriate” sanctions when it happens. “If it happens in the middle of a trial, a judge will say ‘well you have it now, there’s no prejudice,’” says Boss. “The standard on appeal is very high, so if you find out about it after a trial, it’s rare that anything gets done about it.”

How significant an event is this within the prosecutor/defense lawyer community? Boss called it a “watershed moment” for the white-collar defense bar. “To have a violation so prominently and publicly displayed really sends a message to prosecutors everywhere.”

Goelman said the situation was bound to have a big impact within the DOJ. “If the Attorney General decides to dismiss a conviction, he’s got to be pretty disturbed by what he found,” he said. “In my opinion, there doesn’t seem to be any defense to what went on in this case.”

So what happens now? The lawyers said that Schuelke would investigate whether the prosecutors violated one of two contempt statutes: either Federal Rule of Criminal Procedure Rule 42a or 18 U.S.C. Sec. 401 and 402.

Goelman says the question will really boil down to whether the prosecutors “willfully” violated Judge Sullivan’s order to turn over the Brady material. “And that will likely largely dovetail with the department’s internal investigation on why the Brady material wasn’t turned over,” he adds.

Boss says that the next step, were Schuelke to find violations, would be to prepare a show cause order that would then get presented to a Judge Sullivan. If the judge approved of the order, it would serve the purpose of an indictment — technically an order to the defendants to show cause why they should not be held in criminal contempt.

What would a trial look like? Boss says that if the judge presiding over the case, which may or may not be Judge Sullivan, is contemplating a prison sentence beyond 180 days, he has to allow a jury trial. The defendants would be given all the due process rights of any other criminal defendant.

And punishment?

“It’s interesting,” says Boss, “there’s no maximum sentence for this kind of contempt. A judge really has wide latitude in handing down a sentence.”

Full post as published by Law Blog - WSJ.com on April 08, 2009 (boomark / email).