Yet Another Possible DOJ Lapse on Evidence-Sharing Is Disclosed
By David Stout | November 10, 2011 12:26 pm

Years from now, if someone writes a history of the Department of Justice as it was early in the 21st Century, a prominent theme will probably be the agency’s failure to keep track of documents.

The latest lapse, disclosed in a filing with a federal appellate court on Wednesday and reported by National Public Radio, concerns the case of Jeffrey Sterling, a former CIA officer who is to go on trial soon on charges that he leaked classified information to a reporter for The New York Times.

DOJ lawyers prosecuting Sterling allegedly lagged in turning over evidence that would help him with his defense, causing the judge to bar a pair of government witnesses from testifying, NPR reported.  The latest, potentially embarrassing lapse by the DOJ was alluded to in a government filing with the United States Court of Appeals for the 4th Circuit, in Richmond, Va.

William Welch II, former head of the DOJ’s Public Integrity Section who was severely rebuked for the botched prosecution of former Sen. Ted Stevens (R-Alaska), is now leading the case against Sterling, NPR noted. For Welch, this latest development may seem like a recurring nightmare, given that the Sterling case, like that of Stevens, is marked by problems of keeping track of paperwork.

The filing says the 4th Circuit may be asked to consider “whether the district court erred in striking the testimony of two government witnesses for the late pre-trial disclosure of potential impeachment information about these witnesses.”

Barry Pollack, a lawyer for Sterling, declined to comment, and the DOJ had no immediate comment, NPR said.

The case of Sterling, who is to be tried before U.S. Judge Leonie Brinkema of the Eastern District of Virginia in Alexandria,  has already been marked  by some unusual development, like the government’s desire to conceal some witnesses and evidence from the public for security reasons (see Main Justice’s earlier report).

Sterling faces 10 felony counts relating to allegations that he told James Risen of The Times about a CIA effort to transmit flawed nuclear weapon designs to Iran. In his 2006 book, Risen wrote that the Russian defector to the United States whom the CIA used to convey the information to the Iranians actually pointed out the flaws to them. Prosecutors have said that parts of Risen’s account are false.

As of late October, the DOJ was intent on subpoenaing Risen to testify (see Main Justice’s report), an attempt that Risen’s lawyer has said he would oppose, thereby setting the stage for a major court battle.

The Sterling case is only the latest in which the DOJ’s inability to keep track of documents has been a problem. The department was acutely embarrassed by its failure to turn over possibly exculpatory material to defense lawyers in the botched prosecution of the late Alaska Senator Stevens, as we have reported.

Moreover, the DOJ is embroiled in a nasty civil suit with Honeywell International Inc., which the DOJ accuses of having sold faulty body armor to the government. Honeywell not only denies the accusations but has blamed the DOJ for failing to turn over relevant documents during discovery (see Main Justice’s recent report).

The DOJ’s problems with information storage and retrieval — either in old-fashioned paper form or via computer — is nothing new. In 2001, the execution of Oklahoma City bomber Timothy McVeigh was delayed for 30 days when it was discovered that the FBI had failed to turn over some documents to defense lawyers.  The paperwork was found to have no bearing on McVeigh’s guilt, which was never in doubt, but it was embarrassing for the government nevertheless.

It may be hard to fix ultimate blame for the DOJ’s problems with information storage and retrieval, but there have been signs in recent years that some officials were reluctant to embrace the computer — a reluctance as futile as trying to hold back the night.

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