Friday, October 03, 2008

Judges Have to Give Brady Teeth: Sen. Stevens Judge Emmet Sullivan Blows the Chance to Fix Brady Violations Forever.

The Brady Doctrine (for those of you unfamiliar it is a doctrine that holds that the Prosecution must turn over to the Defense, all material that could probably have an effect on the verdict in a case)is a very strong rule that gutless courts have watered down to the point that it has almost no meaning. We have another opportunity to see the doctrine rendered meaningless in the case of US. v. Ted Stevens.

The allegations are that Senator Ted Stevens of Alaska, let a contractor do free work on his home, without declaring the "gift" as a contribution. He also lobbied for the contractor who was a friend of the Senator.

On Monday, the government allowed a witness that was helpful to the defense to return to Alaska without testifying (allegedly because of his health...I guess Washington DC doesn't have any decent medical care...) and that testimony would have been helpful to the defense. Then on Tuesday, it was learned that the government also suppressed evidence that the Senator had paid every bill he was rendered but that he wasn't rendered a bill and the Contractor (who is of course now the star witness against Sen. Stevens) TOLD THE FBI that he thought had he rendered a bill, Stevens would have paid it.

That is important information. It is a bit speculative, but it goes to a number of issues such as: did Stevens, who paid over 150K for improvements, know that the Contractor should didn't render a bill.

Now, during cross-examination the prosecutor informs the defense attorney about the statement. This wasn't a case of losing and finding an item. This was a case where the prosecution redacted an item. The actually took it out of the paperwork so that the defense would not know about it. Someone on the prosecution side took a pen and blacked out the statement.

The Court should have declared a Prosecution caused Mistrial and dismissed the case. No instead the Court offered to allow the defense some time and then also allow them to give a new opening statement. Now that is truly a toothless opportunity. The Original opening statement is a time when counsel lays out its case, It is the time to make hay of the good things your side will produce or stop the other side from producing. To open later is a possible offer for an item that inadvertently was lost and not turned over. This however was an intentional act.

The Court strongly scolded the prosecution, but then refused to do anything real about their breech of duty. I mean look at the actual words the Court used:

"The court has no confidence in the government's ability" to meet its obligations to ensure a fair trial..."


Coming from a federal judge that is a very strong indictment of the public integrity Section of the Justice department. The Justice Dept. gets a lot of perks from the court. The have an obligation to ensure a fair trial. Now the court should have said, if you can't figure out what might be expected to have an effect on the outcome of a trial, and you affirmatively take something out, then there needs to be a serious penalty. The only penalty I can think of is a dismissal with prejudice. Stevens is 82 years old. Are we really going to put a geriatric US Senator in jail?? This would have been the perfect time to show the government they cannot fool with the rules.

Maybe the court was afraid the appeals court would cut the legs out from under him. Who cares?? Let them overrule the decision, It will take the government years to appeal and then they would give the courts another chance to tell the prosecutors that playing fast and loose with the Brady Doctrine will not be tolerated.

Hattip ABA Journal Law News Now.
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