Posts Tagged ‘justice department’

More Allegations of Prosecutorial Misconduct in Sen. Ted Stevens Case

Wednesday, February 11th, 2009

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First, a recap: Last July, former Alaska Senator Ted Stevens was indicted on seven counts of failing to report gifts he’d received, including renovations to his house in excess of what he’d paid for, but mostly goods and services from oil tycoon Bill Allen. Sen. Stevens pled not guilty, and with an election coming up he demanded a speedy trial to clear his name. The trial began on September 25.

Soon after the trial began in Washington, D.C, the prosecutors came under fire for sending one of their witnesses home to Alaska without letting the judge or the defense know. The witness, Rocky Williams, then contacted the defense team and told them that he’d spent a lot less time working on Stevens’ home than the renovation company’s records indicated. That severely weakened the prosecution’s argument that the company had spent its own money doing the renovations.

Then it came out that the government had withheld Brady material. FBI records containing prior statements of a witness had been handed over to the defense, but the prosecutors — Brenda Morris, Nicholas Marsh and Joseph Bottini (pictured) — had redacted parts of the statements that were potentially exculpatory. This wasn’t affirmatively exculpatory material, but it was impeachment material, and should have been turned over.

A memo from Bill Allen was discovered during trial, in which Allen stated that Sen. Stevens probably would have paid for the goods and services, had he been asked to. The prosecution claimed that their failure to disclose it beforehand was an inadvertent oversight.

The judge was reportedly angered by all this, stating with respect to the Brady material that “it strikes me that this was probably intentional. I find it unbelievable that this was just an error.” Nevertheless, the judge did not declare a mistrial, and on October 27 the jury convicted Stevens on all seven counts.

Then in late December, FBI agent Chad Joy went public with the accusation that the prosecutors really had intentionally withheld exculpatory evidence, and had intentionally sent Rocky Williams back to Alaska to conceal him from the defense.

Now, as the New York Times reports, Joy has come forward with additional allegations of prosecutorial misconduct.

In his latest whistleblower filing, Joy claims that another FBI agent conspired with the prosecutors “to improperly conceal evidence from the court and the defense,” as the Times puts it.

“I have witnessed or learned of serious violations of policy, rules and procedures, as well as possible criminal violations,” Joy stated in his affidavit.

With respect to Rocky Williams, Joy stated that the witness was sent back to Alaska not because of ill health (the reason given by the prosecution), but because after preparing him for testimony, the prosecutors decided that his testimony would help the defense case. Joy stated that Nicholas Marsh came up with the idea, after Williams fared poorly in a mock cross-examination.

Joy stated that the prosecution team also tried to hide the Bill Allen memo that stated that Sen. Stevens would have paid for the items if he’d been asked to. Rather than an accident, as prosecutors claimed at trial, Joy now alleges that it was intentionally withheld.

In addition, Joy claims that fellow FBI agent Mary Beth Kepner had an inappropriate relationship with the star witness, Bill Allen. She almost always wore pants, he said, but on the day that Bill Allen testified, Joy says she wore a skirt, which she described as “a present” to Allen. Joy also states that Kepner went alone to Allen’s hotel room. Although Joy’s redacted affidavit doesn’t say it specifically, the defense team now claims that Kepner and Allen appear to have had a sexual relationship.

Joy also claims that FBI agents received gifts from Allen, including help getting a job for a relative.

The judge, Emmet Sullivan, has ordered a hearing to be held in two days, this Friday the 13th, on whether a new trial is warranted. If the judge determines that Sen. Stevens did not receive a fair trial, he could very well scrap the conviction and order a do-over. It would be anyone’s guess, at that point, as to whether the prosecutors would actually try the case again.

Watch this space for future developments.

NYPD and DOJ Wiretap Fight: Each Accuses the Other of Endangering the Public

Friday, November 21st, 2008

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Over the summer, New York City’s police force demanded that the FBI and the Justice Department make it easier to get wiretaps on suspected terrorists. The feds refused, and the dispute has escalated ever since. The New York Times reports that correspondence has flown between the U.S. Attorney General and the Police Commissioner themselves, as “each accuses the other of mishandling terrorism cases and embracing an approach that made the public more vulnerable.”

Wiretaps are considered one of the most invasive state actions, and so any request for electronic eavesdropping is going to be put under enormous scrutiny before it is ever presented to a judge. Every “i” must be dotted, every “t” must be crossed, and no detail is too small to be overlooked. The slightest inadvertent error can result in a wire being deemed improper, resulting in the exclusion of all the evidence gathered as a result. No law enforcement agency wants to spend vast amounts of time and money on a wire investigation, only to have the evidence thrown out.

So prosecutors carefully prepare wire applications, dissect them, and then send them up the chain of command for approvals. In the DOJ, these internal approvals can take an extraordinarily long time. New York City prosecutors, with bureaus specializing in such applications, can turn around a wire application much faster. Although both tend to err significantly on the side of caution, to minimize the chance of error being found down the road, the feds are much more cautious than the city prosecutors, and will reject wiretap applications that would have passed muster in the DA’s office.

Also, federal wiretaps tend to be short and sweet, not often extending beyond the initial 30-day period normally authorized. Renewal of the authority requires another application, and there just isn’t time to jump through all the hoops while the evidence is still coming in. City-initiated wiretaps, on the other hand, can sometimes extend for 18 months or longer, as they lead to more phone lines and additional evidence.

So there is already a cultural divide between federal and city law enforcement when it comes to wiretaps. The feds are traditionally much more cautious and unlikely to request a wiretap,* while NYC law enforcement, though still very cautious, is not nearly so shy.

Now enter the FISA Court.

The Foreign Intelligence Surveillance Court is set up to review applications for warrants to eavesdrop on suspected spies or terrorists. The court must find probable cause that the target of the surveillance is a foreign agent or terrorist, that the wiretap is going to turn up evidence of such activities, and there is no reasonable less-invasive way to get the evidence.

Only the FBI and the DOJ have access to the FISA Court, however. So if the NYPD wants to get a warrant, it needs to submit it to federal scrutiny. That subjects their applications to much lengthier review, as a result, and also makes them more likely to be rejected and not presented to the court in the first place.

The NYPD now believes that its efforts are being thwarted, and accuses the feds of improperly blocking its wire applications.

So on October 27, police commissioner Ray Kelly accused the feds of putting the public at risk by being too nit-picky. He wrote that the feds were “constraining” critical terrorism investigations, and “doing less than is lawfully entitled to protect New York City,” so that “the city is less safe as a result.”

Four days later, attorney general Mike Mukasey wrote back saying that the city’s approach would be counterproductive, because they’d seek warrants that might exceed what the law allows, so that the evidence gathered could be thrown out, thereby making the citizens less safe.

Mukasey seems to see the FISA Court as little more than a rubber stamp. Presumably, if the court was doing its job, a warrant application that didn’t satisfy the law would be rejected by the court itself. But the DOJ appears not to trust the court to do its job, and so would act as a stand-in for the court.

Although the NYPD didn’t make that point, it did respond by putting the blame squarely on the DOJ for taking too long to review applications, and for applying “a self-imposed standard of probable cause which is higher than that required by Supreme Court precedent.”

As a former prosecutor who did quite a lot of wiretaps involving both city and federal authorities, your humble blogger will be very interested to see how this pans out. In the meantime, it looks like the fight is only getting started. Stay tuned.

* This perplexes the New York Times, which has long accused the Bush administration of trying to improperly extend its wiretapping authority and other national security powers. Many insiders, however, blame the administration for trying too hard to appease its opposition by limiting governmental powers and announcing that to the world, thereby only creating opposition where none previously existed. So while the criticism from the left about wiretapping and other legalities may have been undeserved, the administration has no-one to blame but itself.