The United States Department of Injustice

21 03 2012

 By Timothy D. Naegele[1]

The truth has begun to come out about the federal prosecution of former United States Senator Ted Stevens of Alaska. In an article entitled, “Inquiry slams prosecution of Stevens corruption case by Justice Department,” the Washington Times reported:

Justice Department prosecutors bungled the investigation and prosecution of Sen. Ted Stevens, a probe that was permeated by the “systematic concealment of significant exculpatory evidence,” in some instances intentionally, that would have independently corroborated his defense and testimony, a court-ordered report released Thursday says.

In a blistering 514-page report, Special Counsel Henry F. Schuelke III said Justice Department prosecutors never conducted a comprehensive review of evidence favorable to the Alaska Republican and failed to disclose to defense attorneys notes of witness interviews containing significant information.

The report also says two federal prosecutors intentionally withheld and concealed significant information from the Stevens defense team that would have seriously damaged the testimony and credibility of the government’s key witness.

Months after a jury convicted Stevens in October 2008 of accepting and concealing money for home renovations and other gifts, the report says, a new team of prosecutors discovered, in short order, that some of the exculpatory information had been withheld. At that point, it says, the Justice Department moved to set aside the verdict and dismiss an indictment with prejudice.

New prosecutors were assigned after U.S. District Judge Emmet G. Sullivan, in a stunning rebuke, held two prosecutors in contempt for failing to comply with the court’s order to disclose information to Stevens‘ attorneys and to the court regarding allegations of prosecutorial misconduct, which were made after trial by an FBI agent who worked on the case.

In throwing out the case against Stevens, Judge Sullivan said, “For nearly 25 years, I’ve told defendants appearing before me that in my courtroom they will receive a fair trial and I will make sure of it. In nearly 25 years on the bench, I have never seen anything approaching the mishandling and the misconduct I have seen in this case.”

. . .

The Schuelke investigation lasted two years and involved the examination and analysis of more than 128,000 pages of documents, including the trial record, prosecutors’ and agents’ emails, FBI reports and handwritten notes, and depositions of prosecutors, agents and others.

. . .

Since the Stevens case was dismissed, [Justice Department spokeswoman Laura Sweeney] said, the department has instituted a “sweeping training curriculum for all federal prosecutors and has taken “unprecedented steps” to ensure that prosecutors, agents and paralegals have the necessary training and resources to properly fulfill their discovery and ethics obligations.

“Justice is served only when all parties adhere to the rules and case law that govern our criminal justice system,” she said. “While the department meets its discovery obligations in nearly all cases, even one failure is one too many.

“But it would be an injustice of a different kind for the thousands of men and women who spend their lives fighting to uphold the law and keep our communities safe to be tainted by the misguided notion that instances of intentional prosecutorial misconduct are anything but rare occurrences,” she said.

Kenneth L. Wainstein, counsel for Alaska federal prosecutor Joe Bottini, said the nation’s criminal justice system is based on principles of fairness and due process and the fundamental requirement that criminal accusations should be leveled only when a person intentionally violates the law and not when one simply makes mistakes.

. . .

The Schuelke report does not recommend that any criminal charges be brought, but blames prosecutors for intentionally withholding and concealing evidence.[2]

It is another travesty and miscarriage of justice that the wrongdoers within the so-called “Justice Department” have not been subjected to criminal prosecution, convicted, and sent to prisons—where true justice will be meted out—instead of getting “slaps on the wrist” for their criminal conduct.

While Judge Sullivan’s words and actions have been commendable, the Stevens case is not an isolated incident of the Criminal Division’s wrongdoing. Tragically, adequate resources do not exist to ferret out the depth of the Criminal Division’s wrongdoing, or to bring its corrupt lawyers and others—such as FBI agents—to justice.

At best, Sweeney’s comments constitute lies, obfuscation and a perpetuation of the Criminal Division’s cover-up of the systemic corruption within its ranks. The same thing is true of Wainstein’s comments.

As I have written:

[A]buse of our criminal justice system by prosecutors is “unreal” today. According to one civil trial attorney with years of experience, it is akin to “KGB material”—as rogue prosecutors go after innocent people and try to convict and imprison them.

. . .

“[L]awyers who are prosecutors are often less interested in fairness and justice than they are in winning at all costs, and exercising their raw power and hurting others in the process—such as those who are innocent but are convicted anyway.”

. . .

And I added:

“A federal official with reason to know told me that between 15-20 percent of the indictees in federal courts are probably innocent. Some are seniors who have been charged with cheating the Social Security program, and they are scared to death, so they agree to plea bargains rather than fight for their innocence.”

Anyone who honestly thinks that prosecutors are advocates of truth and justice is living in a “Mary Poppins,” fantasy world, and knows nothing about how our legal system really operates. The truth about this system is not found by watching TV shows or films. Indeed, it is seldom if ever discussed or written about, yet it is often said—by lawyers—that the only thing separating prosecutors from guilty criminals is the “badge.”

Lastly, how many innocent people have been wrongly executed for crimes they did not commit? Even more startling may be the number of innocent people who have been wrongly convicted and imprisoned. Perhaps the best remedy for such abuses is to have the “guilty” prosecutors incarcerated; and let justice be meted out with respect to them, by those in prisons.[3][4]

In a long-overdue editorial entitled, “Department of Injustice”—and subtitled, “Prosecutors in the Stevens case deserve severe sanctions”—the Wall Street Journal added:

Something is very rotten at the U.S. Department of Justice. No other reasonable conclusion can be drawn from an independent report on the 2008 prosecution of then-Senator Ted Stevens.

. . .

Most damaging to Justice’s credibility is that, three years after Judge Sullivan set aside the guilty verdicts against Stevens, the department still hasn’t disciplined the men and women involved. Nor has it instituted harsher penalties for future abuses. Attorney General Eric Holder told a Senate committee last week that a separate internal inquiry at Justice is almost done, but he would not promise to make all the results public.

Speaking of public scrutiny, you’ve probably never heard of Matthew Friedrich, Rita Glavin, Brenda Morris, Joseph Bottini, James Goeke or Edward Sullivan. But maybe more people should know them, and learn the various roles they played in a prosecution that not only trampled on the rights of the accused, but denied the people of Alaska a fair election and literally shifted the balance of power in the U.S. government.

. . .

Guilty verdicts against the Republican Stevens arrived less than two weeks before Election Day in 2008, causing the previously popular Senator to lose a close race to Democrat Mark Begich. Mr. Begich would go on to provide the 60th Senate vote to pass ObamaCare in 2009.

Virtually the entire case against Ted Stevens hinged on the testimony of the government’s star witness, VECO Corporation CEO William Allen. To protect his credibility, prosecutors withheld from the defense evidence that he had suborned perjury in a separate criminal investigation. Nor did prosecutors say a word in court when, according to the report, Mr. Allen offered testimony that the prosecution knew to be false.

The government’s seven-count indictment for false statements accused Stevens of accepting free home renovations from Mr. Allen’s company and then not reporting these gifts on federal disclosure forms.

Mr. Stevens and his wife said they had paid $160,000 for the renovations and as far as they knew that was the total cost of the work. What the prosecutors learned in interviewing witnesses—but never shared with the defense—is that even the foreman on the job site shared the Stevens’ understanding that they had been appropriately billed for all the work. Instead of sharing this evidence supporting Stevens’s defense, prosecutors selectively quoted the foreman to make it appear as if he had said the opposite, and they used his comments to falsely attack Stevens.

. . .

It would be nice to think these abuses were rare lapses. But we wonder what else we might learn if every DOJ prosecution was subjected to a review like the one Judge Sullivan wisely demanded.

. . .

Americans hand prosecutors an awesome power—the power to destroy fortunes and futures, and in this case to reallocate national political power. We are seeing a pattern of abuse of this power, in order to win big cases. To help prosecutors remember that their job is to do justice and not simply to beat the defense team, there should be automatic and severe penalties for Brady violations. Prosecutors could also be required to turn over more raw data with potentially exculpatory evidence, except in cases where it threatens national security or endangers witnesses in a criminal case.

Mr. Holder claims to have addressed the problems in the Stevens case by expanding training programs and the like. But as the nation’s chief law enforcer, he should know that harsh punishment is the appropriate response when anyone violates the rights of a citizen as badly as prosecutors did in the Stevens case.[5]

Why should anyone be the least bit surprised that the Justice Department’s Criminal Division is corrupt?  Like the fish rots from the head down, the Criminal Division does as well. Anyone who differs with this conclusion has never dealt with the Division, its lawyers, or their injustices.

© 2012, Timothy D. Naegele


[1] Timothy D. Naegele was counsel to the United States Senate’s Committee on Banking, Housing, and Urban Affairs, and chief of staff to Presidential Medal of Freedom and Congressional Gold Medal recipient and former U.S. Senator Edward W. Brooke (R-Mass).  He practices law in Washington, D.C. and Los Angeles with his firm, Timothy D. Naegele & Associates, which specializes in Banking and Financial Institutions Law, Internet Law, Litigation and other matters (see www.naegele.com and http://www.naegele.com/naegele_resume.html).  He has an undergraduate degree in economics from UCLA, as well as two law degrees from the School of Law (Boalt Hall), University of California, Berkeley, and from Georgetown University.  He is a member of the District of Columbia and California bars.  He served as a Captain in the U.S. Army, assigned to the Defense Intelligence Agency at the Pentagon, where he received the Joint Service Commendation Medal.  Mr. Naegele is an Independent politically; and he is listed in Who’s Who in America, Who’s Who in American Law, and Who’s Who in Finance and Business. He has written extensively over the years (see, e.g.,www.naegele.com/whats_new.html#articles), and can be contacted directly at tdnaegele.associates@gmail.com; see also Google search:Timothy D. Naegele

[2] See http://www.washingtontimes.com/news/2012/mar/15/inquiry-slams-prosecution-stevens-case-justice-dep

[3] See also http://www.usatoday.com/news/washington/story/2012-02-06/ted-stevens-prosecutors-justice-department/52922922/1 (“Taxpayers pay to defend prosecutors in Ted Stevens case“)

[4] See https://naegeleblog.wordpress.com/2011/01/03/the-american-legal-system-is-broken-can-it-be-fixed/#comment-1700 (emphasis in original)

[5] See http://online.wsj.com/article/SB10001424052702304459804577283371409080312.html?grcc=b0ae03d96c2400ec757f4df24c4ff8bcZ0&mod=WSJ_hpp_sections_opinion (emphasis added); see also http://blogs.wsj.com/law/2012/03/15/law-blog-doc-dump-ted-stevens-investigative-report/


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11 responses

21 03 2012
GolanTreviz

Ted Stevens was a corrupt politician who used public people and funds to benefit himself. His only other goal in office was to destroy the Alaska environment for corporate and personal gain. He belonged in prison for these.

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21 03 2012
Timothy D. Naegele

Thank you for your comments, Golan.

First, I have made my views about Washington politics clear, so I will not repeat them here.

See, e.g., http://naegeleblog.wordpress.com/2010/09/24/washington-is-sick-and-the-american-people-know-it/

Second, I met Senator Stevens. He was a very close personal friend of a long-time friend of mine. Both were lawyers who graduated from Harvard Law School; both served in our military; and the Senator graduated from UCLA, which I did as an undergraduate. Also, I have dealt with the lawyer who represented him.

Third, my article above is not intended to defend, vindicate or exonerate the Senator, or pass judgment on what he did or did not do. It is an article about our legal system, and whether the organs of our government that are charged with doing justice and adhering to the law actually do so. This affects every American, including you and me.

As I wrote above:

A federal official with reason to know told me that between 15-20 percent of the indictees in federal courts are probably innocent. Some are seniors who have been charged with cheating the Social Security program, and they are scared to death, so they agree to plea bargains rather than fight for their innocence.

This is a a travesty, with far-reaching implications for all Americans—and trust in our organs of government and those who are charged with rendering justice. For many Americans, “criminal justice” is an oxymoron, and tragically so.

See also http://naegeleblog.wordpress.com/2013/07/15/justice-and-the-law-do-not-mix/ (“Justice And The Law Do Not Mix”)

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14 06 2014
Neil Gotschall

I am an Alaskan, met Senator Stevens and liked him. We were fortunate to have him as a Senator.

I stumbled across your website and enjoy reading your posts..

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14 06 2014
Timothy D. Naegele

Thank you, Neil, for your comments.

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14 06 2014
Ron Michaels

For some reason, I received this email back in my queue today and I was delighted. I also saw a couple of my previous comments to your write-ups and was surprised at how long it’s been since I’ve had the pleasure of reading your very incisive, articulate work. Keep it up!

Ron

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14 06 2014
Timothy D. Naegele

Thank you, Ron, for your kind words.

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15 07 2013
Timothy D. Naegele

Dershowitz: ‘Prosecutorial Tyrant’ Violated Zimmerman’s Rights

It has been reported:

Famed defense lawyer and Harvard law professor Alan M. Dershowitz is calling for a federal investigation into civil rights violations stemming from the George Zimmerman case—but he says the probe should focus on prosecutorial misconduct rather than on allegations of racial profiling and bias.

. . . Dershowitz said the jury’s finding that Zimmerman was not guilty of either second-degree murder or manslaughter was “the right verdict.”

He added, “There was reasonable doubt all over the place.”

Immediately after the verdict was announced, however, the NAACP and outspoken activist Al Sharpton called on the Justice Department to launch a federal civil-rights probe, charging that the case had been racially tainted.

Dershowitz is calling for a civil-rights probe as well. But he contends the person whose rights were violated was Zimmerman.

“I think there were violations of civil rights and civil liberties—by the prosecutor,” said the criminal-law expert. “The prosecutor sent this case to a judge, and willfully, deliberately, and in my view criminally withheld exculpatory evidence.”

He added: “They denied the judge the right to see pictures that showed Zimmerman with his nose broken and his head bashed in. The prosecution should be investigated for civil rights violations, and civil liberty violations.”

Dershowitz said the second-degree murder case should never have gone to trial considering the flimsy evidence against Zimmerman. He also does not believe it was strong enough to be submitted to a jury for deliberation.

“If the judge had any courage in applying the law, she never would have allowed the case to go to the jury. . . . She should have entered a verdict based on reasonable doubt.”

Dershowitz singled out special prosecutor Angela Corey for “disciplinary action.”

He criticized the state’s probable-cause affidavit for not including evidence indicating Zimmerman could have been acting in self-defense, including graphic images of blood streaming from his scalp and nose.

“The prosecutor had in her possession photographs that would definitely show a judge that this was not an appropriate case for second-degree murder. . . . She deliberately withheld and suppressed those photographs, refused to show them to the judge, got the judge to rule erroneously this was a second-degree murder case.

“That violated a whole range of ethical, professional, and legal obligations that prosecutors have. Moreover, they withheld other evidence in the course of the pretrial and trial proceedings, as has been documented by the defense team,” he said.

Dershowitz described the prosecution’s attempt late in the case to add a third-degree murder charge by asserting the shooting constituted child abuse “so professionally irresponsible as to warrant sanctions and investigations.”

Dershowitz said various legal and bar association organizations could investigate how the state handled the prosecution. He added it could warrant a federal investigation as well.

“I think people’s rights have been violated, . . . but it was the rights of the defendant and the defense team, by utterly unprofessional, irresponsible, and in my view criminal actions by the prosecutor,” he said.

Dershowitz went on to express his opinion that Corey is “basically a prosecutorial tyrant, and well known for that in Florida.”

Dershowitz and Corey have had run-ins before. She contacted Harvard Law School demanding that he be disciplined for voicing his opinion that she had improperly omitted information that could have exonerated Zimmerman.

“Of course, the Harvard Law School laughed at [her complaint],” he said.

. . . Even after the verdict was rendered Saturday, Corey continued to defend her decision to charge Zimmerman with second-degree murder.

“We charge what we believe we can prove,” she told the media. “That’s why we charged second-degree murder. We truly believe that the mindset of George Zimmerman and the words that he used and the reason he was out doing what he was doing fit the bill for second-degree murder.”

Corey said the case “has never been about race,” but also said there was “no doubt” young Trayvon Martin had been “profiled to be a criminal.”

Although Zimmerman was cleared of all charges, Corey told the media: “This case was about boundaries and George Zimmerman exceeded those boundaries.

Dershowitz [said] he expects there will probably be a lawsuit filed against Zimmerman for civil damages. He said civil-damage cases require a lower standard of proof that a wrong has been committed, and Zimmerman would not be able to avoid testifying.

But Dershowitz adds: “I don’t know where you’ll find a lawyer who is prepared to bring it, because it has very little chance of success.”

Asked if he expects Attorney General Eric Holder’s Justice Department to launch a civil-rights investigation targeting Zimmerman, Dershowitz stated: “I don’t think that’s going to happen, and if it happens, I don’t think it would succeed.”

Dershowitz [said] the prosecutor overcharged the case, and never should have sought a second-degree murder conviction.

“The theory was clearly to charge second-degree murder, and hope for a compromise verdict of manslaughter,” he said.

Dershowitz was careful to add that the tragic killing of Trayvon Martin exposes a need to reform Florida laws.

He believes the Stand Your Ground law should be changed because it “elevates macho over the need to preserve life.”

He also stated that racial profiling “has to be addressed.”

“I think these vigilante community groups have to be disarmed,” he said. “I don’t think Zimmerman should have been allowed to have a gun.

“He should have been walking around with a walkie-talkie and calling the police,” he said. “It’s the job of the police to investigate and apprehend suspects based on their professional training.”

But the need for future legal reforms had no bearing on the Zimmerman trial, Dershowitz said, and insisted the case should never have reached a jury.

See http://www.newsmax.com/Newsfront/Dershowitz-Zimmerman-Prosecutorial-Misconduct/2013/07/14/id/514957?s=al&promo_code=142AB-1; see also http://naegeleblog.wordpress.com/2009/12/05/is-barack-obama-a-racist/#comment-2640 (“Zimmerman Prosecutors ‘Should Be Disbarred’”)

Of course, Dershowitz is correct!

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9 09 2013
Ron Michaels

I just saw the news story on Fox that Zimmerman was detained today for threatening his wife and her father with a gun. I once had an attorney for one of my clients tell me, about his client, “he squeezed past the justice system once or twice before. We’ll get him this time.” In my opinion, this will give the legal system in Florida (and around the country) another bite at Zimmerman and I would project it will be painful.

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9 09 2013
Timothy D. Naegele

Thank you, Ron, for your comments.

If true, it is sad. Zimmerman has gone through Hell, and he needs this like he needs ten more holes in his head.

His wife should be celebrating his victory, not causing more pain, but it happens.

See also the comments about Zimmerman beneath the following article: http://naegeleblog.wordpress.com/2009/12/05/is-barack-obama-a-racist/

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9 09 2013
Ron Michaels

I saw your comments about Dershowitz and I followed up with the video of his evisceration of the state’s AG. Watching her on television was an education in itself.

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17 07 2013
Timothy D. Naegele

VIOLENCE

If we want to reduce or eliminate violence, then Hollywood should not make and distribute any violent films and TV shows; such violence should be banned from TV programming; violent video games should be banned; advertisers that support violent media undertakings should see their products boycotted; parents who allow their children to commit violence should be prosecuted; and those who advocate violence should be prosecuted as well.

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