Font Size: 
Sealed Court Records, Transcripts Released in Stevens Case
Legal Times
February 19, 2009
More than 150 pages of previously sealed court records and transcripts were released late Tuesday and reveal for the first time the Justice Department's arguments as to why a complaint alleging prosecution and FBI misconduct in the Ted Stevens case should be kept from the public.
Brenda Morris, the principal deputy chief of the DOJ's Public Integrity Section, argued vigorously against the court releasing an FBI agent's whistleblower complaint that accuses prosecutors -- and a fellow FBI agent, Mary Beth Kepner -- of misconduct during the Stevens trial last year, according to a transcript of a sealed court hearing that took place Dec. 19. Morris was the lead trial prosecutor in the Stevens case. The DOJ has tapped three other lawyers to tackle post-trial litigation regarding the misconduct allegations.
FBI Agent Chad Joy alleges in the complaint, filed in December, that prosecutors schemed to relocate a witness and tried to withhold evidence from Stevens' lawyers at Williams & Connolly. Joy accuses Kepner of having an inappropriate relationship with the government's star witness, Bill Allen, a longtime Stevens friend and Alaska businessman. The prosecution, and Joy's lawyer, did not want the information made public. The complaint was released last month.
"Whose interest trumps here? Whose interests are paramount here, you know? Are the interests of FBI agents ... superior to the interest of the defendant and having a fair trial and having a public trial?" Judge Emmet Sullivan of the U.S. District Court for the District of Columbia asked Morris at one point during the hearing, according to the transcript.
"The allegations that are made are serious," Morris responded. "They're serious personnel issues with regard to the individuals mentioned in it. However, it doesn't change the evidence in the case against Senator Stevens during the course of this trial."
Morris argued the allegations in Joy's complaint are not relevant in post-trial litigation because Sullivan dealt with the issues during the trial, admonishing the prosecution and striking certain pieces of evidence. In urging Sullivan not to release the complaint, Morris cautioned the judge that publishing the document could interfere with an ongoing Justice Department investigation of the complaint. The Office of Professional Responsibility is investigating, Morris said in court.
"What am I supposed to do, just close the book on that and just let the chips fall where they may?" Sullivan asked. "We probably wouldn't find out what happened anyway." Sullivan also said: "Maybe if I had known about his complaint I would have taken more action." The judge did not elaborate. Stevens' lawyers, including Williams & Connolly partner Brendan Sullivan Jr., several times during the trial urged Sullivan to dismiss the case based on allegations of prosecution misconduct, which include attempts to withhold evidence favorable to the defense.
Morris and Sullivan got into a back-and-forth about whether the complaint is relevant, exploring a hypothetical in which Sullivan at one point put Morris in the shoes of a defense lawyer. "It's not whether it's ultimately proven to be true. The test is whether it's evidence that is favorable, can be used by the defendant ... for reliability, credibility," Sullivan said. "Some juror maybe would laugh at it later on, but that's not the test."
Joy's complaint, Morris said, took the prosecution team by surprise. "He never expressed anything like this," Morris told the judge. The prosecutor said cryptically that there are other "issues" that are not in the complaint that go to Joy's motivation.
Stevens' lawyers have argued since Joy's allegations first surfaced in December that the complaint, and litigation associated with it, should all be conducted in open court, on the record. "We came to court time and time again. We're accused of unfairly impugning the good faith of the government. Lo and behold we were proven right again and now we're finding out more and more," Williams & Connolly partner Rob Cary said at the Dec. 19 hearing.
Sullivan praised Morris at one point during the sealed hearing, saying that while he does not know her personally he respects her professionally. "I think you gave a powerful closing argument. You brought the house down, right?" the judge asked. Morris responded: "Thank you, judge."
The court briefs filed by government prosecutors and Williams & Connolly lawyers in the days leading up to the Dec. 19 sealed hearing were also released Tuesday night, in addition to two transcripts of sealed telephone conferences with Sullivan on Dec. 15 and Dec. 17. Sullivan said at the Dec. 15 telephone hearing about Joy and his complaint: "In all likelihood, he's put his reputation, livelihood, career and indeed he may have put his liberty interest on the line."
Williams & Connolly's Brendan Sullivan took the lead in submitting filings in the days leading up to the sealed hearing. In one filing, dated Dec. 15, Brendan Sullivan argued the government should not be allowed to selectively decide which information gets to see the light of day on the public docket. He noted how the Justice Department published on a government Web site "unflattering" evidence against Stevens throughout the trial. Justice set up a site to post trial evidence.
"The principal reason for the objection (to publishing the Joy complaint) appears to be protection of the government's reputation," Brendan Sullivan wrote in the filing. "But the government has never hesitated to file on the public record information that affected Sen. Stevens' reputation." Brendan Sullivan said in a filing, also dated Dec. 15, that the allegations in the Joy complaint "fundamentally undermine the integrity of the verdict" in the Stevens trial.
Morris, the prosecutor, wrote in a filing Dec. 17 in which she argued against the release of the misconduct complaint: "This is a sensitive, internal matter with personal and professional implications for multiple civil servants who are entitled to due process and their administrative rights." Morris noted in the filing that neither Joy nor Kepner testified at the trial. At most, Morris said, Joy's allegations against Kepner go to her credibility as a non-witness.
Sullivan ultimately released a full version of the Joy complaint last month. Stevens' lawyers have incorporated the allegations in a motion to dismiss the case. Judge Sullivan has ordered Justice prosecutors to turn over internal memos and reports associated with the complaint to Stevens' lawyers. That order got the prosecution team in trouble.
The judge held three Justice lawyers in contempt last week -- Morris, William Welch II, chief of the Public Integrity Section, and Patricia Stemler, chief of the Appellate Section -- for failing to follow a court order to turn over internal Justice documents. Sullivan said he will address sanctions at a later date. OPR is now investigating the contempt finding.
This article first appeared on The BLT: The Blog of Legal Times.
