The White House and the Justice Department are vetting the head of the Office of Professional Responsibility, Mary Patrice Brown, for a federal judgeship, according to two people familiar with the matter.
Brown, a well-regarded career prosecutor, is expected to secure a nomination to the U.S. District Court for the District of Columbia, assuming she clears her FBI background check and American Bar Association review, the people said.
Brown was tapped to lead the Justice Department’s ethics unit in April, amid a high-profile probe of former Office of Legal Counsel lawyers whose legal opinions paved the way for waterboarding of terrorism detainees. Her office reportedly determined that the lawyers — John Yoo, now a law professor, and Jay Bybee, now a federal judge — violated professional standards in blessing some of the Bush administration’s most controversial national security policies.
The Justice Department official who oversees OPR in the Deputy Attorney General’s office, David Margolis, softened the report to say the lawyers were guilty of “poor judgment” but not of professional misconduct — a finding that would have warranted referrals to state bar associations, Newsweek reported.
The issue would almost certainly be raised in Brown’s Senate confirmation hearings. Many Republicans strongly oppose disciplining Yoo or Bybee for their work during the Bush administration in the aftermath of the 9/11 attacks, while many Democrats have called for them to account for approving an interrogation method that Attorney General Eric Holder and others have equated with torture.
Brown, just the third OPR counsel since the office was created in 1975, came from the U.S. Attorney’s Office for the District of Columbia, where she was chief of the Criminal Division. The Justice Department announced the move the day after a federal judge criticized OPR for dragging its feet in an investigation of possible misconduct in the botched prosecution of former Alaska Sen. Ted Stevens. The events were unrelated.
The judge, Emmet Sullivan, took the extraordinary step of appointing a special prosecutor to investigate government lawyers for possible criminal contempt. Sullivan’s actions also set in motion a series of reforms designed to ensure that prosecutors meet their obligations to turn over evidence to defendants. (Brown would be Sullivan’s colleague on D.C.’s federal trial court, among the most prestigious in the country.)
The OPR investigations of the Stevens prosecutors and of the former OLC lawyers elevated the profile of Brown’s office. Rarely do OPR findings see the light of day, much less become the subject of congressional inquiries, as the OLC probe has. As a result, the office has received more complaints, Brown has said.
Delegate Eleanor Holmes Norton sent Brown’s name to the White House, along with eight others, for three vacancies on the court. (The names were generated by Norton’s nominating commission, the same group that interviewed candidates for U.S. Attorney in the District.) The White House appears to have pared the list down to three names, and the Justice Department’s Office of Legal Policy has been assisting with the vetting since December, the people said.
The lawyers being considered for the other two vacancies are Venable LLP partner Robert Wilkins, former special litigation chief for the D.C. Public Defender Service, and D.C. Superior Judge James “Jeb” Boasberg, who was an Assistant U.S. Attorney in District before his confirmation in 2002, the people said.
Brown could not be reached for comment. Wilkins and Boasberg declined to comment.
The court has a fourth vacancy as of late December, when U.S. District Judge Paul Friedman took senior status. It’s unclear whether the White House will select a nominee from Norton’s list, ask for more names or conduct its own search.
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The Justice Department on Friday appealed a court decision dismissing charges against five former Blackwater guards involved in a 2007 shooting in Baghdad that left 17 Iraqis dead.
Vice President Joe Biden announced the government’s intention to file an appeal last weekend, after a meeting with Iraqi President Jalal Talabani.
Prosecutors say the guards opened fire in a crowded Baghdad intersection without provocation, killing or wounding more than 30 Iraqis, including women and children. Attorneys for the guards say their clients, who were protecting U.S. diplomats, took fire from insurgents and responded in kind.
U.S. District Court Judge Ricardo Urbina in Washington dismissed manslaughter charges against the guards in a harshly worded Dec. 31 ruling, in which he faulted Justice Department prosecutors for using tainted evidence to build their case and for abusing the grand jury process.
Many Iraqis were outraged by the decision, viewing it as evidence that the U.S. was not accountable for bloodshed in their country. Iraqi leaders have been collecting signatures for a class action against the security contractor, which changed its name to Xe Services last year.
Urbina’s December ruling invited comparisons to the the botched prosecution of former Sen. Ted Stevens (R-Alaska), whose conviction was erased last year because of government missteps.
In that case, Judge Emmet Sullivan, who sits on same court as Urbina, criticized the government for failing to disclose materials that could have aided in Stevens’ defense. Sullivan dismissed the case at Attorney General Eric Holder’s request, and then appointed a counsel to investigate prosecutors for possible criminal contempt.
Urbina, however, made no formal finding of misconduct, and in a ruling earlier this month, he said the Justice Department could seek a new indictment against the men. Urbina said prosecutors acted with “disregard” but concluded that dismissing the case — without prejudice — was punishment enough.
The government has not yet filed a brief explaining the grounds for appeal. In pretrial hearings, prosecutors argued that interviews the guards gave to the State Department after the shooting were part of the normal course of their job and could be used against them. Urbina ruled that interviews were compelled, which immunized the guards.
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The chief judge of the U.S. District Court in Massachusetts used the investiture ceremony of Boston-based U.S. Attorney Carmen Ortiz on Monday to press prosecutors about their priorities, The National Law Journal reported today.
With Attorney General Eric Holder in attendance, Chief Judge Mark Wolf asked Ortiz whether her staff is “being put to their highest and best use when two-thirds of the defendants in this federal district court are indigent and must have Criminal Justice Act counsel,” according to the NLJ.
Wolf has been vocal about what he sees prosecutorial misconduct in the district, and the gun and drug cases that Bush U.S. Attorney Michael Sullivan tried in district court, The NLJ said.
“I hope as you develop the priorities for the performance of your office you will consider questions like” those, Wolf said at the ceremony, according to The NLJ.
Ortiz, the state’s first Hispanic and female U.S. Attorney, downplayed the judge’s remarks in a statement to the NLJ. Though the U.S. Attorney said at the ceremony that fighting terrorism is her “first priority,” she also said her office will focus its attention on crimes ranging from human trafficking to environmental crimes, The NLJ said.
“I believe our Assistant United States Attorneys will be put to their highest and best use regardless of who represents the defendants,” Ortiz said in the statement. “We will bring cases based on where the evidence takes us, not based on who is paying the bill.”
We reported in May that Wolf rebuked Massachusetts Assistant US Attorney Suzanne Sullivan for withholding evidence that could have helped a defendant in a gun case.
Wolf also wrote a letter to Holder in April expressing his “renewed hope” that the Attorney General would address judges’ concerns about prosecutors’ conduct. Then-Attorneys General Alberto Gonzales and Michael Mukasey did not respond to similar letters from Wolf.
Wolf added in the letter that U.S. District Judge Emmet Sullivan’s decision to appoint a special prosecutor to investigate the mishandling of the Sen. Ted Stevens public corruption case “confirms that other judges share my concern.”
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Judge Emmet Sullivan, who presided over the trial of former Alaska Sen. Ted Stevens, is pressing for a rule in the District of Columbia’s federal district court that would require the government to make timely disclosure of all exculpatory material to criminal defendants.
Sullivan has already petitioned the Judicial Conference, the policy making body of the federal judiciary, to adopt the rule change nationwide. The conference’s Criminal Rules Advisory Committee took up Sullivan’s request in October and is considering the measure.
The Justice Department opposes amending discovery rules. Officials have argued that the change would conflict with existing laws limiting the timing of disclosure and could pose a threat to national security. At the October meeting, Assistant Attorney General Lanny Breuer, the head of the Criminal Division, pointed to several reforms intended to prevent the lapses that prompted Sullivan to set aside Stevens’ conviction, including a training program for prosecutors and a new position in the Justice Department to coordinate the government’s efforts to ensure compliance with discovery rules.
Sullivan made his latest request in a Dec. 7 letter to Judge Henry Kennedy of the U.S. District Court for the District of Columbia, the chairman of the court’s rules committee. The letter was filed publicly in the Stevens case.
In another letter, also filed in the Stevens case on Monday, Sullivan asked the chairman of the Judicial Conference’s Criminal Rules Advisory Committee for an update on its review of Sullivan’s request. If the Judicial Conference approves the rule change, it would be binding on all federal courts. The local rule change would only apply to the U.S. District Court for the District of Columbia.
Sullivan noted in his letter to Kennedy that several other districts have adopted similar rules.
Attorney General Eric Holder moved to dismiss the indictment in April, after an internal review of the case uncovered instances in which prosecutors improperly withheld material favorable to Stevens’ defense. A court-appointed counsel is investigating whether they did so intentionally. Stevens, who was the Senate’s longest-serving Republican, was convicted of lying on his Senate disclosure forms and lost his re-election bid in 2008.
In a recent report to Congress, Inspector General Glenn Fine said the Stevens debacle “created concern about the prosecutors’ adherence to professional standards of conduct.” He said restoring confidence in the department in the wake of the Stevens case was a major challenge.
Henry F. Schuelke III is nearing the end of his investigation of six Justice Department lawyers involved in the botched 2008 prosecution of then-Sen. Ted Stevens (R-Alaska), The Washington Post reports.
Judge Emmet Sullivan, of U.S. District Court for the District of Columbia, tapped Schuelke in April to determine whether the lawyers intentionally withheld material from Stevens’ defense. According to the Post, Schuelke has scheduled interviews with the six lawyers.
The interviews are expected to wrap up in January. Scheulke has already reviewed thousands of documents related to the case, which Attorney General Eric Holder moved to dismiss after learning of prosecutors’ lapses in sharing information and witness statements with the defense.
Earlier this week, Inspector General Glenn Fine said restoring confidence in the department in the wake of the Stevens case was among the department’s highest priorities. The Stevens debacle has prompted a series of reforms, including additional training for prosecutors.
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Bill Allen, the government’s chief witness in its case against former Alaska Sen. Ted Stevens, was sentenced to three years in prison on Wednesday, the Justice Department said.
Allen, 72, was also ordered to pay a $750,000 fine and given three years of supervised release. Allen is the former CEO of VECO Corp., an oil services company. He pleaded guilty in May 2007 to charges of conspiracy, bribery, extortion and honest services mail and wire fraud.
Allen’s lawyer, White & Case partner George Terwilliger III, argued that no more than a six-month sentence was warranted, owing to Allen’s cooperation in a wide-ranging corruption investigation that eventually enfolded the longest-serving Republican in the Senate. The Justice Department had asked for a prison sentence of 46 months.
A former vice president of VECO, Richard Smith, 64, was also sentenced on Wednesday to 21 months in prison and was ordered to pay a $10,000 fine.
The Justice Department says Allen and Smith conspired with at least five members of the Alaska legislature to provide other state officials with financial benefits in return for their support on pending legislation. They also admitted to giving out about $395,000 to public officials in connection with the scheme.
A federal judge set aside Stevens’s 2008 conviction at Attorney General Eric Holder’s request. A department review found instances in which prosecutors improperly withheld information from Stevens’ defense team, including statements Allen made to federal investigators before the trial. U.S. District Judge Emmet Sullivan appointed a special counsel,Henry Schuelke III, to examine whether prosecutors did so intentionally.
That investigation, as well as probe by the department’s Office of Professional Responsibility, is ongoing.
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Justice Department officials on Tuesday announced new measures to ensure prosecutors comply with their obligations to make potentially exculpatory information available to criminal defendants. But they said the department opposes expansion of the disclosure rule.
In a meeting in Seattle with members of the federal judiciary’s Criminal Rules Advisory Committee, Assistant Attorney General Lanny Breuer pointed to a number of reforms: mandatory Brady training for federal prosecutors, the revival of a working group on computer forensics, a case-management pilot project and the creation of a position at the Justice Department’s Washington headquarters to oversee these efforts.
The Criminal Division chief’s 30-minute presentation was, in essence, a rebuttal of Judge Emmet Sullivan of the U.S. District Court for the District of Columbia, who expressed frustration with prosecutors after presiding over the high-profile corruption trial of then-Sen. Ted Stevens (R-Alaska) last year.
In April, Sullivan wrote the advisory committee, urging its members to consider an amendment to Rule 16 that would require prosecutors to turn over all exculpatory information to defense lawyers in criminal cases.
“Such a rule would eliminate the need for the court to enter discovery orders that simply restate the law in this area, reduce discovery disputes, and help ensure the integrity and fairness of criminal proceedings,” Sullivan wrote.
Currently, prosecutors have discretion to decide which information is relevant, though Justice Department policy dictates that they err on the side of disclosure.
Sullivan’s proposal was in response to government errors in the Stevens case. The Alaska Republican, whose trial unfolded amid his ultimately unsuccessful bid for a seventh term, was found guilty in October 2008 of failing to disclose gifts on his Senate disclosure forms. Attorney General Eric Holder asked Sullivan to erase the conviction after a top-down review of the case exposed instances in which prosecutors improperly withheld evidence from Stevens’ defense lawyers.
At the time, Sullivan said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen” in the Stevens case. The judge took the unusual step of appointing outside counsel, Henry Schuelke, to investigate the Stevens prosecutors for possible criminal contempt. The investigation is ongoing.
The discussions over Rule 16 come as a former Alaska state representative convicted in the same corruption probe that snared Stevens is petitioning a judge to reverse his conviction. The former lawmaker, Republican Pete Kott, said in a court filing that Justice Department prosecutors failed to disclose that a key witness had allegedly had sexual relationships with underage women, The Washington Post reports.
The witness, Bill Allen, the former head of oil services company Veco Corp., also may have persuaded one of the underage women to file a sworn statement that hid the nature of their relationship, The Post reports. Kott’s attorneys say this information would have helped them challenge Allen’s credibility before the jury. Allen is awaiting sentencing on guilty pleas to bribery and tax charges.
Similar amendments to Rule 16 have been considered several times, most recently in 2006. Justice Department officials proposed refinements to the U.S. Attorneys’ Manual in lieu of a rule change. Then as now, Justice officials said expanding the rule would upset the balance of discovery, fundamentally changing the way DOJ operates, would conflict with existing laws limiting the timing of disclosure, and could pose a threat to national security.
Though additional language was added to the USAM, broadening disclosure requirements, the advisory committee voted to publish the rule for public comment.
A majority of the advisory committee members felt the Justice Department hadn’t gone far enough, arguing that judges could not enforce compliance with the USAM and that even tracking compliance would be impossible. But the Standing Committee on Rules of Practice and Procedure, the next rung up in the Judicial Conference, tabled the measure.
Wroblewski described the views of committee members — including judges, lawyers and law professors — as varied. Some favored codifying existing case law or sought an expansion of Rule 16; others deferred to the Justice Department. (We’ve asked for the meeting minutes and will post them as soon as we get them.)
Breuer, an ex-officio member of the committee, acknowledged the challenge of bringing uniformity to the process, noting the patchwork of local rules, as well as varying practices among federal and state law enforcement agencies, Wroblewski said.
But Breuer disputed that discovery violations are prevalent, citing statistics from the department’s Office of Professional Responsibility. Over the past decade, OPR has opened 107 investigations of alleged Brady-Giglio violations and found 15 cases of misconduct. Skeptics — including a number of federal judges — have questioned the Justice Department’s diligence in policing itself.
Breuer said the Justice Department was in the process of sorting through findings by a working group assembled in the aftermath of the Stevens case. Breuer chaired the group along with Karin Immergut, who until recently was the top federal prosecutor in Oregon and head of the Attorney General’s Advisory Committee of U.S. Attorneys.
The department has adopted several of the group’s recommendations. As we reported here, each U.S. Attorney’s office has appointed a prosecutor to act as resident “discovery trainer.” They will be responsible for training every federal prosecutor and conducting refresher sessions each year.
The department is also planning to launch a case-management pilot project, which will employ new software and search for best practices, and to revive a computer forensics working group. A new position at the Justice Department has been created to oversee and institutionalize the reforms, Wroblewski said. It has not been filled.
The advisory committee meets again in April and could vote to open Sullivan’s proposal to six-month public comment period. The standing committee meets in January, at which time the department is expected to provide a fuller picture of its efforts.
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After the Ted Stevens case imploded, Attorney General Eric Holder announced new training initiatives to ensure prosecutors fulfill their discovery obligations, and he formed a working group to hammer out best practices.
Apparently, Assistant Attorney General Lanny Breuer, who co-chairs the group, and the gang over at the Executive Office for U.S. Attorneys are making good on Holder’s word.
The Justice Department’s Office of Legal Education, based at the National Advocacy Center in Columbia, S.C., is holding a “Criminal Case Management and Discovery Conference” in October. Check out the description:
By memorandum dated August 24, 2009, EOUSA Director Marshall Jarrett directed all United States Attorneys to immediately appoint their Senior Litigation Counsel (SLC) as the Discovery Trainer for the office and has required this person to attend the Criminal Case Management and Discovery Conference to be held at the National Advocacy Center on October 14-16, 2009. This course will focus on a variety of discovery related issues, including Brady-Giglio, Rule 16 discovery, Jencks, managing discovery pre-indictment, informants, and agent and attorney notes. In addition, each participant will receive training materials related to the subject matter of the conference to facilitate the mandatory training all AUSAs will be required to attend by the end of the year.
The discovery trainers, according to a Justice Department official, will provide guidance and periodic training to Assistant U.S. Attorneys.
(UPDATE 9/17 9:05 a.m.) Another Justice Department official told us representatives from the Criminal Division will also participate in the training.
The federal judiciary, meanwhile, is considering a proposal by U.S. District Judge Emmet Sullivan to amend Rule 16 to require prosecutors to disclose any exculpatory material to defense lawyers.
Sullivan, who dismissed the Stevens indictment at Holder’s request, appointed an outside counsel to investigate the prosecutors who handled the case for possible criminal contempt. The case was rife with government errors, and Sullivan has since been among the leading voices in the judiciary for new discovery policy.
Breuer, as criminal chief, is an ex-officio member of the conference’s Criminal Rules Committee. He is expected to state the department’s position on Sullivan’s proposal before the committee meets in October.
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Attorney General Eric Holder and other Justice Department leaders have been granted ethics waivers to allow them to review matters related to the botched Sen. Ted Stevens case, the White House disclosed Friday.
A team of Justice lawyers is under investigation for their handling of the public corruption case against the former senator from Alaska. U.S. District Judge Emmet Sullivan dismissed the charges against Stevens in April after a Justice Department review found that DOJ lawyers hadn’t made potentially exculpatory evidence available to the defense.
A special counsel appointed by Sullivan is conducting a criminal contempt probe of the DOJ lawyers, while the department’s Office of Professional Responsibility is conducting a parallel internal ethics review of the case. Two of the DOJ lawyers under scrutiny have hired counsel from the law firms where Holder, Criminal Division chief Lanny Breuer and Deputy Attorney General David Ogden were partners.
Administration ethics rules require Justice appointees to recuse themselves from official matters in which their former law firms represent parties. Holder and Breuer were partners at Covington & Burling LLP and Ogden at WilmerHale.
“[T]he particular circumstances surrounding these investigations are unusual, and present important issues even at this early stage of the process,” the letters from Assistant Attorney General for Administration Lee Lofthus said. “It is highly unusual to have an investigation by the court concurrent with an OPR investigation, and it raises jurisdictional issues and questions concerning the authority of the special counsel and the proper relationships between OPR’s investigation and that of the special counsel.”
Patty Stemler, chief of the Criminal Division’s appellate section, is fighting a civil contempt finding by Judge Sullivan in the Stevens case. She is represented by WilmerHale’s Howard M. Shapiro and Mary Katherine Gardner. It is unclear who is represented by Covington. Covington’s Mark Lynch represents Public Integrity Section chief William Welch II (along with Zuckerman Spaeder LLP’s William Taylor.)
The waivers were issued in May. The White House disclosed them on Friday as part of a transparency effort. Norm Eisen, special counsel to the president for ethics and government reform, explained in a blog post here:
Several months ago, the public interest community suggested that we also make available in a central place limited waivers granted by other federal agencies besides the White House. Today, we are releasing all ten such agency-granted waivers (none of which involve lobbying). The President’s Executive Order calls for an annual report to be completed in early 2010 that will include all waivers granted pursuant to the Order. We are, however, pleased to make all of the pledge waivers granted to date by this Administration available now–more than four months early.
This article has been updated.
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In a surprise move, the Justice Department today dropped a major drug-trafficking case with prejudice, after fighting hard to preserve the ability to bring charges against Mexican businessman Zhenli Ye Gon in the future.
The department moved to dismiss the case in June, deferring to Mexico, where Ye Gon is accused of organized crime, drug and firearms violations. The Justice Department had charged him with conspiring to manufacture methamphetamine bound for the U.S.
Prosecutors said they weighed the relative strengths of cases, and Mexico’s interests in prosecuting the Chinese-born Ye Gon and the possibility of a steeper punishment prevailed.
The parties have battled over the prejudice issue ever since. Defense lawyers Manuel Retureta and A. Eduardo Balarezo accused prosecutors of belatedly informing them of witness problems and argued that the case should be dismissed with prejudice on the grounds of prosecutorial misconduct.
After the initial filing in June, U.S. District Judge Emmet Sullivan questioned the government’s motives in dismissing the case and expressed dismay at the timing of the disclosure, raising the specter of another public examination of the Justice Department’s conduct in a high-profile case.
But today’s events — Sullivan immediately ordered the case dismissed — foreclose any further review of the government’s alleged misconduct, though Justice Department lawyers defended their actions to the last.
Paul O’Brien, chief of the Narcotic and Dangerous Drug Section, said the government made its decision based on the strengths of the Mexican case. He assured Sullivan that the U.S. prosecution was brought in good faith.
“We feel very strongly that there was no prosecutorial misconduct in this case,” O’Brien said. “We cannot accept a dismissal on that basis.”
O’Brien was in the unusual position of defending the integrity of the DOJ before the same judge to whom he’d offered a humiliating public apology for prosecution errors in the ex-Sen. Ted Stevens (R-Alaska) case. “I hope the court will appreciate, speaking on behalf of the Justice Department, we deeply, deeply regret this occured,” O’Brien told Sullivan in April before the judge dismissed the high-profile public corruption case.
The charges that Ye Gon made millions importing and selling methamphetamine ingredients as part of an international drug conspiracy might have seemed more of a slam dunk. When authorities raided the businessman’s mansion in Mexico in March 2007, they found $207 million in cash and weapons. It remains the single largest seizure of alleged drug money in the world. Ye Gon was arrested in July 2007 in Wheaton, Md.
But the case, once held aloft as a triumph of Mexican-American collaboration, presented problems. A key witness recanted, and another refused to cooperate. Prosecutors could not depose witnesses in China, and a Mexican judge rejected their requests for evidence.
The Justice Department first disclosed some of these travails in their June motion to dismiss. Ye Gon’s lawyers immediately accused the government of withholding evidence favorable to their client, and Sullivan, too, wondered why the government had not come forward earlier.
Today, the judge said he was glad he broached the subject of the evidentiary obligations — “in the interest of the fair administration of justice” — and applauded the Justice Department’s change of heart.
“I don’t usually have a lot of positives to report to Mr. Holder, but tell him I’m delighted with his decision,” said Sullivan, the judge who ordered a criminal investigation of the prosecutors who handled the Stevens case.
“We’re happy to pass that along, your honor,” O’Brien replied.
The government also abandoned its case against Ye Gon’s girlfriend, Michele Wong, who was charged with money laundering. As with Ye Gon, the government consented to dismissal with prejudice.
Wong, who phoned into today’s hearing, was elated.
“Thank you so much, your honor. Thank you,” she said, choking up.
Ye Gon, who has been imprisoned since his arrest two years ago, will remain in U.S. custody pending extradition to Mexico. He is seeking asylum here, and his lawyers are fighting the transfer. That matter is scheduled for a hearing next month.
After Sullivan ordered the case dismissed, Ye Gon, wearing an orange-and-white striped prison jumpsuit, bowed politely toward the judge. “Thank you, your honor,” he said as he exited the courtroom.
This post has been updated.