Sunday, December 28, 2008

Discovery Discussion--and How Criminal and Civil Cases Differ


A commenter (thanks, Alaska) asked questions about how discovery works, and I am posting my response here because these questions seem to come up frequently.

Discovery is a process required under American law in which one side gives information on the case to the other side. Discovery rules vary by jurisdiction.

In criminal law, discovery was traditionally one-way: The prosecution gave evidence to the defense, but the defense gave nothing to the prosecution. Recently, however, some jurisdictions--including Alaska--have required the defense to provide some discovery to the prosecution. It is still true, though, that the prosecution provides much more information to the defense than the other way around.

The list of what discovery the prosecution is automatically required to provide under Alaska law includes copies of any written and recorded statements made by the defendant; any papers or documents which the prosecution intends to use at trial; any papers or documents which were obtained from or belong to the defendant; and any material or information which tends to negate the guilt of the defendant as to the offense.

An example of what Alaska law requires the defendant to produce to the prosecution is the name, address, and written report of any expert witness. Another example of the limited discovery from the defendant required under Alaska law is that the defendant must give the prosecution advance notice of defenses including alibi, entrapment, and duress.

As this blog has discussed before, the federal rules for discovery require less discovery from the prosecution than Alaska law does.

The prosecution in criminal cases--whatever the jurisdiction--generally has to provide automatically more information than any party has to provide in civil cases of any kind. There generally is a different discovery process in civil matters such as employment mediations than exists in criminal cases.

There are other differences in the ways that criminal cases and civil cases proceed. Civil cases often drag on a long time, while speedy trial rules keep all but the most serious and complicated criminal cases moving along much faster. Civil cases tend to feature depositions and written requests like interrogatories and requests for production. A higher percentage of criminal cases are tried than civil cases.

After handling both kinds of litigation, I have said that lawyers are always preparing to try civil cases but somehow the trial almost always gets derailed by a settlement or some other resolution sort of trial. Attorneys in criminal cases, however, did not get to prepare as much but are often actually going to trial. This is particularly true with misdemeanors. Lawyers handling felonies--particularly a very well-financed team like the attorneys at Williams & Connolly in white-collar crime cases--often do have more time to prepare more like lawyers in civil cases.

Tuesday, December 23, 2008

A Whistleblower's Complaint Fuels the Defense's Fire


Ted Stevens just got the biggest Christmas present he will receive this year.

An FBI agent who has worked on the Alaska public corruption investigation has alleged that at least two members of the prosecution team against Sen. Stevens engaged in various acts of misconduct.

The unnamed FBI Special Agent states in a complaint seeking whistleblower protection that “I have witnessed or learned of serious violations of policy, rules, and procedures as well as possible criminal violations.”

The alleged misconduct mostly falls into three categories:

1. Specific acts that prejudiced Stevens in his trial. The complaint charges that one or more federal employees intentionally withheld discoverable materials from the defense and schemed to prevent an important witness—VECO employee Rocky Williams—from testifying after the prosecution determined that his testimony would be unfavorable.

2. Improperly close relationships between federal employees and cooperating witnesses in the ongoing criminal investigations into Alaska public corruption. These allegations include taking artwork, getting help in getting a job for a federal employee’s relative, and accepting house-hunting assistance from a confidential source’s relative.

3. Procedural mistakes in handling paperwork. The whistleblower agent’s complaint includes allegations that the FBI and the Department of Justice’s Public Integrity Section have not properly processed boxes of materials collected during the Alaska investigation.

The allegations appear in a complaint prepared by an unnamed FBI Special Agent to facilitate a request for whistleblower protection against retaliation at work, and the Department of Justice filed the document with the court. The complaint is public because U.S. District Judge Emmet Sullivan ordered it released late yesterday afternoon.

The heavily redacted version of the complaint released publicly does not name either the whistleblower or the people the agent is complaining about. Some insights are available, however, through a close reading of the eight-page, single-spaced complaint.

The complaint says that the whistleblower agent made the complaint in part because a book mentions that FBI agent multiple times. Cooperating witness Frank Prewitt published this September a book about his role in the Alaska public corruption scandal that discusses at length the actions of two FBI agents: Mary Beth Kepner and Chad Joy. The heavily redacted complaint says “_________ drew and provided _____ large original drawing of _________ dog as a gift.” Prewitt’s book says that Kepner told Prewitt that her supervisor had met with her regarding a dog portrait that Prewitt’s wife had given to Kepner as a Christmas present, a portrait that Prewitt’s book says his wife painted.

This whistleblower’s complaint is highly significant. It hurts the prosecution because the charges come from the inside. The whistleblower agent states that the agent has worked for years on the Alaska public corruption investigation (codenamed “POLAR PEN,” apparently because—as the Anchorage Daily News noted—the probe started by looking into private prison lobbying efforts). This complaint is in an entirely different league from dark speculations, innuendo, or fulminations on appeal coming from a team of lawyers. For the defense, this complaint is like having a defector walk into your country’s security service with sensitive secrets. For the prosecution, it’s never good to have a key employee with extensive knowledge of the case switch sides on you and blow the whistle.

The complaint is also damaging to the prosecution because some of the allegations against government agents either mirror the actual charges against Ted Stevens or track the defense’s repeated complaints during the trial. As Judge Sullivan noted in his 29-page order directing the release of the complaint, the prosecution’s proof of Stevens’ guilt at trial included evidence that the Senator had accepted artwork and help in getting a job for a relative. And both during and after the trial the defense has relied on charges that the prosecution had repeatedly hidden the ball to request either a dismissal or a new trial.

Although the release of this whistleblower’s complaint is the best news Stevens had had in a while, we have not heard the government’s response to these allegations. The Department of Justice has presumably been conducting an internal investigation of this complaint, which originated as a document aimed at getting whistleblower protections for an employee. The government’s response to these allegations may include denials as well as aspersions on the motivation of the employee making the complaint.

The defense received an unredacted copy of the complaint last week and has already jumped on it. A new motion for dismissal or—alternatively—a new trial appeared less than an hour after the release of the complaint. The aggressive team at Williams & Connolly had already filed several post-trial motions seeking dismissal, a new trial, and/or an evidentiary hearing. One of the grounds relied upon by the defense motions is a letter from prosecution witness Dave Anderson alleging that the prosecution suborned perjury. (The prosecution has responded at length to deny Anderson’s allegations. The government contends that a person identifiable as former legislator Jerry Ward—the father of Anderson’s girlfriend—has been manipulating Anderson in an attempt to prevent prosecution of Ward.)

Going back to the whistleblower’s complaint, much of the document centers on allegations that at least one of the investigators got too close to a half-dozen sources. Convicted briber and star prosecution witness Bill Allen is the only one of those sources named in the redacted version of the complaint, but the evidence strongly suggests that Prewitt is another of those six.

These allegations raise the age-old conflict between experience and coziness. Spending a lot of time with people will help gain information and trust, and some of that is natural in any situation. On the other hand, certain relationships call for an arms’ length distance—such as that between FBI agent and cooperating witness.

The release of this complaint is rife with implications. It delays the sentencing and appeal process in the case of Sen. Stevens. Given Stevens’ strong interest in clearing his name and the boost that this complaint will give his lawyers’ efforts to do so, the complaint’s release may make it even less likely that he will seek a pardon from outgoing President Bush before January 20th.

Attorneys for others in the crosshairs of the ongoing federal investigation have to be licking their lips with glee. Release of this complaint will likely open the door to more disclosure of the federal agents’ interactions with Allen and other cooperating witnesses like Prewitt. Those already convicted at trials may well add these allegations to their appeals, and those not yet charged might see the probe slow down as the Department of Justice deals with these allegations.

Once again, the complaint offers only one side of what in some places sounds like a list of objections to a co-worker’s approach. Although the release of this complaint is just the latest in a series of self-inflicted wounds suffered by the government in the Ted Stevens case, we will learn a lot about how serious this injury is when the government files its response to the latest defense motion.

Tuesday, December 9, 2008

Rod Blagojevich Shocks This Blog Back Into Action


Like the rest of those who care about law and politics, your blogger sits agog at the charges announced against Gov. Rod Blagojevich, Democrat of Illinois. It's been all over the news today--the story of a Governor allegedly so dedicated to selling his office that he essentially put up for auction the U.S. Senate seat vacated by Barack Obama even after Blagojevich had reason to know that the feds were tapping his phones. In the words of U.S. Attorney Patrick Fitzgerald, it was “a political corruption crime spree.”

Hubristic, stupid, insane—commentators’ characterizations are numerous for this man who muses about running for President in 2016 even after he knew key associates were talking to federal prosecutors and he was under a Department of Justice microscope.

This blogger was struck by the similarities of this Illinois scandal with some of what we have seen uncovered in the federal investigations into the Alaska public corruption scandals. Like Gov. Blagojevich, Rep. Tom Anderson--an Anchorage Republican who served in the Alaska State Legislature--appeared to keep committing crimes even after each of them knew the feds were watching. (Anderson had even been a cooperating witness—that is, a person who wires up at the FBI’s direction in phone conversations and meetings with unsuspecting suspects—before backing out on his deal and doing unusual legislative favors for Bill Allen of VECO, the corporation that had paid Anderson tens of thousands of dollars in consulting fees.)

And as occurred in Alaska with several legislators, the federal government apparently has evidence of the Illinois Governor and his chief of staff committing crimes on tape. In both Alaska and Illinois, the evidence was unusual because in many public corruption cases the taped evidence consists of people admitting that they had committed crimes in the past, not of them actually doing it contemporaneously. Such contemporaneous evidence—catching people in the act on tape—shows that the investigation is long-running and that the perpetrators are unusually clueless.

A final irony common to the investigations in both states is a high degree of formal education among the public officials caught. Every one of the five public officials convicted in the Alaska public corruption scandals so far has at least one advanced degree, and three of them have law degrees. Both the Illinois Governor and his chief of staff—also charged today—are lawyers. Blagojevich was a prosecutor and a Member of Congress before he ran for Governor as a reformer in reaction to the record of his predecessor, who now sits in federal prison for bribe-taking and other crimes.

Illinois has a sorry history of public corruption. A number of municipal governments—including Chicago’s—have had unfortunate problems with dishonesty, and the last 50 years has seen two of the Land of Lincoln’s Governors go to prison for crimes committed while in office and a third incarcerated for offenses committed after his term in office. In 1970, $800,000 in cash was found in the hotel room of the Illinois Secretary of State when he died—with some of it stuffed in shoe boxes—a fact some thought odd given that in a lifetime of public service he had never earned more than $30,000 a year. (One politician cracked that “It will take a big man to fill his shoe boxes.”)

This terrible tradition in Illinois seems linked to both the state’s historically lax campaign finance laws and an ingrained culture of corruption that led elites in both political parties to expect that public officials would steal. Alaska would do well to try to avoid both of those contributing factors.

Administrative Note: I’m back in Alaska and back posting. Look forward to discussions of the post-trial motions of Ted Stevens and the pre-trial appeal of Bruce Weyhrauch, among other hot topics.