Tuesday, April 14, 2009

For the Justice Department, it was a week that might have echoed the toughest days of the Bush era.

Once again my dear friend Nora has asked me to post something on this blog - I should give her the password and let HER have a go at whatever she thinks would work. That's how much I trust her judgement...

Although I haven't had time to read it I trust her enough to post it blindly!

I've been engulfed in my book and other stuff relating to my personal case - and don't want to pass up the chance to get it all out there while the thoughts are many!

So here goes.. thank you Nora!

Mike Scarcella04-13-2009

For the Justice Department, it was a week that might have echoed the toughest days of the Bush era.

First, the department got a very public, and perhaps unprecedented, spanking from a federal judge for mishandling the corruption case against former Sen. Ted Stevens, R-Alaska. U.S.

District Judge Emmet Sullivan targeted six top prosecutors in a criminal contempt investigation for failing to turn over evidence to the defense. He also took strong aim at the department's Office of Professional Responsibility, which had been investigating the prosecutors, and wondered aloud whether the office was up to the job of policing Justice.

That was Tuesday. On Wednesday, Attorney General Eric Holder Jr. replaced the longtime head of the OPR with a veteran prosecutor. The department insists the switch had been in the works for some time and was unrelated to Sullivan's remarks. But the day after the move, Holder was being touted in The Washington Post for launching an era of reform at Justice.

In fact, the thing that may have made last week quite different from the Bush years was the public response by, and the political reaction to, Holder and the DOJ. On Tuesday, just after his department was pummeled in court, he appeared on the "CBS Evening News" with Katie Couric and said that he was "obviously troubled by the findings that -- and the statements that --

Judge Sullivan has made. But we'll cooperate fully with the investigation that has been ordered."
Holder also faced a fairly mild response from Capitol Hill. It helped that Congress was in recess. But even strong critics of the OPR stayed fairly silent. During the scandal over the U.S. Attorney firings, Sen. Joseph Lieberman, I-Conn., pushed a bill that would have beefed up public scrutiny of internal misconduct cases. Last week, in the wake of the Stevens debacle, a spokeswoman said Lieberman has no plans to reintroduce the legislation.

Whether Holder will stay so lucky remains to be seen. A public contempt proceeding could air even more of the department's dirty laundry and invite interference from the Hill. Defense lawyers are also watching the Stevens case closely, wondering if the DOJ's problems will give them a future path to challenge prosecution tactics.=2 0David Freedman of Crumpler Freedman Parker & Witt in Winston-Salem, N.C., who represented former Durham, N.C., district attorney Michael Nifong in a criminal contempt case, says Sullivan's decision could encourage prosecutors and defense lawyers to make trials about the lawyers and not the facts.

"If every time the prosecutor and defense doesn't turn over a document, is that always going to be contempt?" Freedman asks. "If you start determining on each instance that it is, where does that stop?"


On April 1, Holder made his first pre-emptive strike in the Stevens case. He announced that the DOJ would move to dismiss the matter, saying that the prosecution had failed in its obligation to turn over evidence to the defense. "He's the one, in a sense, who put this all into play," says criminal defense lawyer Stanley Brand of D.C.'s Brand Law Group.

Brand and other defense lawyers say they doubt Holder was surprised when Judge Sullivan took the bench a week later to slowly and deliberately read a prepared statement. The judge said that, in 25 years on the bench, he had never seen anything approaching the mishandling and misconduct in the Stevens case. He then said he had asked Henry Schuelke III, a partner at D.C.'s Janis, Schuelke & Wechsler, to investigate the conduct of the prosecutors. Sullivan ordered the DOJ to preserve its evidence and cooperate with Schuelke, who has subpoena power.

The judge named the six who would be investigated: William Welch II, chief of the department's Public Integrity Section; Brenda Morris, his principal deputy and former lead prosecutor in the case; Public Integrity trial attorneys Edward Sullivan and Nicholas Marsh; and Alaska-based Assistant U.S. Attorneys James Goeke and Joseph Bottini.

Sullivan's move was "extremely rare. Indeed, I cannot think of another case like this one," says Pace University Law School professor Bennett Gershman in an e-mail. Gershman studies prosecution ethics.

It was so out of the norm that some white-collar defense lawyers questioned whether Sullivan had the authority to launch a criminal probe without first contacting the U.S. Attorney's Office. The prosecutors under investigation are already making calls to prominent defense attorneys in D.C., says one white-collar defense lawyer who reports getting a call.


As he targeted the prosecutors, Sullivan also trained his fire on the OPR, noting the office had been looking at the prosecutors since October. Sullivan said the misconduct allegations are "too serious and too numerous to be left to an internal investigation that has no outside accountability. This court has an independent obligation to ensure that any misconduct is fully investigated and addressed in an appropriate public forum."

Sullivan is just the latest judge to publicly vent about the OPR. Last year, Chief U.S. District Judge Mark Wolf of Massachusetts, who helped establish the OPR three decades ago, sent a letter to then-Attorney General Michael Mukasey questioning the DOJ's handling of prosecutorial misconduct claims stemming from a high-profile mafia case. Wolf told Mukasey that he was forced to release from prison two peo ple associated with a mob family in New England because of the misconduct. Wolf wrote that the DOJ's performance "raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors."

Until last week, the OPR had been run for 10 years by H. Marshall Jarrett, a longtime Holder colleague and only the second person to head the office since its creation in 1975. Holder and Jarrett had worked together at the U.S. Attorney's Office in D.C. and at Main Justice when Holder was deputy attorney general. Jarrett will land at the Executive Office for U.S. Attorneys, which oversees the 94 U.S. Attorneys' oOfices across the country. His supporters say the move was less a referendum on his OPR stewardship than Holder's promotion of a friend and accomplished prosecutor to a position of increased responsibility.

In Jarrett's place, Holder named another longtime colleague: Mary Patrice Brown, criminal chief in the U.S. Attorney's Office for the District of Columbia. She'll serve as acting head of the OPR. (She is "acting" because the career position must be formally advertised within the department.) Brown has held numerous high-level positions in the U.S. Attorney's Office -- and worked directly with Holder when he was=2 0U.S. attorney for D.C.

Despite naming a new head, Holder said little about actual reform of policy inside the OPR. Even in private practice at Covington & Burling, Holder was a staunch supporter of the office. In 2007, amid the scandal surrounding the U.S. Attorney firings, Congress considered legislation that included a provision giving the Justice Department's inspector general the power to investigate allegations of attorney misconduct -- in effect, taking over the OPR's primary role.

Holder wrote Sen. Lieberman, one of the bill's co-sponsors, to defend the OPR. "The current weakness of the Department of Justice and the seriousness of the allegations against its former leadership should not cause Congress to destroy a mechanism," Holder wrote. The OPR provision died in committee.

Even after Holder decided to pull the plug on the Stevens case, Justice was defending its ability to keep OPR issues in-house. At the American Bar Association's spring meeting this month in Birmingham, Ala., members of the ABA's Criminal Justice Section proposed a resolution calling for greater transparency in the OPR. They asked for regular reports on the office's activities -- essentially20a return to OPR practices under Attorney General Janet Reno. The office has not issued such a report since 2005.

Michelle Morales, of the Office of Policy and Legislation in the DOJ's Criminal Division, requested that the resolution be tabled because she said the new administration was starting to review the issues raised. The ABA obliged. Joe Palazzolo contributed to this article.

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