Judge Lifts Civil Contempt Finding Against Stevens Prosecutors
By Leah Nylen | October 12, 2010 2:26 pm

A federal judge has lifted a civil contempt finding against three senior DOJ lawyers involved in the prosecution of Alaska Republican Sen. Ted Stevens.

In an order filed Tuesday, U.S. District Judge Emmet G. Sullivan found that Patty Merkamp Stemler, chief of the Criminal Division’s Appellate Section, “played a significant and extensive role” in the events that led him to hold several Justice Department lawyers in civil contempt for failing to turn over documents to Stevens’ defense.

However, because the Justice Department later produced all the documents in question, Sullivan agreed to lift the civil contempt finding against Stemler and two other lawyers, Brenda K. Morris and William Welch II, as of the date when the documents were handed over — Feb. 13, 2009, the same day the civil contempt finding was issued. He also dismissed the case.

The order wraps up one half of the ongoing saga following the botched prosecution of Stevens.

Stevens, who died in a plane crash earlier this year, was found guilty of omitting gifts and home renovations from his Senate financial disclosure forms in 2008. After the trial, an internal review exposed prosecutorial misconduct, including failure to turn over evidence to Steven’s lawyers — led by Williams & Connolly LLP partners Brendan Sullivan Jr. and Robert Cary — that might have helped in his defense. Attorney General Eric Holder ultimately asked the court to throw out the case.

In a post-trial status conference in February 2009, Sullivan held Stemler, Morris, Welch and one other DOJ official in civil contempt for failing to turn over documents to Stevens’ defense. (Sullivan later rescinded the contempt finding on one of the lawyers, Kevin Driscoll, finding he was not responsible for ensuring the production of documents.)

Morris, a supervisor in the Justice Department’s Public Integrity Section, was a lead prosecutor on the case; Welch was chief of the Public Integrity Section at the time. Although Stemler was not part of the Stevens trial team, she assisted with the post-trial proceedings in the case.

Last year, Stemler filed a motion seeking to have her contempt finding vacated and claiming that her involvement in the events leading up to the contempt finding was minimal. In a subsequent filing in July 2010, Stemler said the long wait for the court to hear her motion had created problems for the department.

Her pending challenge to the contempt finding prevented her from signing her name on briefs or appearing in court, “hampering the government’s advocacy in the most important criminal appellate cases,” the brief said. “Other than the Court’s February 13, 2009 contempt ruling, Ms. Stemler has an unblemished record of thirty-four years. Ms. Stemler,who has dedicated her professional career to the Department of Justice and has served as the Chief of the Criminal Division’s Appellate Section since 1992, has borne the opprobrium of this unwarranted charge for more than sixteen months.”

In Tuesday’s order, Sullivan rejected the notion that Stemler’s involvement was minimal.

While the traditional role of the Appellate Section in the usual criminal case in typical post-trial proceedings may be removed from the day-to-day trial court proceedings, as the above discussion indicates, this was not the usual criminal case, these were not typical post-trial proceedings, and Ms. Stemler’s role in this case was not a traditional one.  To the contrary, over the course of less than four weeks, Ms. Stemler appears to have been the lead or sole author of at least five substantive pleadings.

But Sullivan found that the lawyers were no longer in contempt as the DOJ later complied with the order to turn over documents.

In a separate probe, a court-appointed prosecutor, Henry Schuelke III, is looking into whether six Justice Department lawyers violated criminal-contempt statutes. He is investigating allegations that prosecutors intentionally withheld exculpatory evidence from defense lawyers. That investigation focused on two Assistant U.S. Attorneys in Alaska, Joseph Bottini and James Goeke; Washington-based DOJ trial lawyers Nicholas Marsh and Edward Sullivan; Morris and Welch.

That probe is ongoing. Last month, one of the prosecutors in that investigation took his own life.

This article has been updated since it was first posted.

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