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April 1, 2009

Official AG Holder statement on DOJ's new position in Stevens case

Now up here on the official DOJ website is the "Statement of Attorney General Eric Holder Regarding United States V. Theodore F. Stevens."  Here is the full text:

In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant.  After careful review, I have concluded that certain information should have been provided to the defense for use at trial.  In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

The Department’s Office of Professional Responsibility will conduct a thorough review of the prosecution of this matter.  This does not mean or imply that any determination has been made about the conduct of those attorneys who handled the investigation and trial of this case.

The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice.  Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis.  I am proud of them and of the work they do for the American people.

My real-world translation: "Though I have concluded we secured a constitutionally tainted conviction in the course of ruining Senator Stevens' career and legacy, I won't admit that any lawyers did anything wrong and I hope that by dropping this whole matter nobody will consider what this case reveals about our federal criminal justice system." 

Though I am not a tort law or Bivens specialist, I cannot help but think about whether Senator Stevens might have a viable civil law claim for damages as a result of all the economic harm he has suffered as a result of his constitutionally tainted prosecution and conviction.  At the very least, I would hope the feds might pick up some of his post-conviction legal bills.

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April 1, 2009 at 12:11 PM | Permalink


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Given the Supreme Court's view of "a prosecutor's absolute immunity from claims asserted under ... § 1983" (Van de Kamp v. Goldstein, Jan. 26, unanimous opn by Breyer) I very much doubt there is a Bivens claim here. Bivens claims are the same as § 1983 claims for immunity purposes.

Posted by: Kent Scheidegger | Apr 1, 2009 12:53:00 PM

Senator Stevens should ask Ray Donovan where to go to get his reputation back.

Posted by: Ed Unneland | Apr 1, 2009 3:05:39 PM

How does post conviction dismissal of charges work?

Posted by: John Neff | Apr 1, 2009 3:31:47 PM

All self-dealt lawyer immunities from tort claims for professional malpractice by adverse third parties should end. Judges and prosecutors should carry insurance to make the victims of their carelessness whole. They should be shielded from harassment and frivolous claims by mandatory certificates of merit from prosecution and judging experts.

All lawyer self-dealt immunities violate the Establishment Clause. Their sole justification stems from the idea that the sovereign speaks with the voice of God and is therefore infallible. Prosecutors and judges are merely professionals like all other professionals. The benefits of torts should be visited on them. To deter.

The Hans decision is irrelevant here, but it should be reversed, granting citizens of the state the right to sue their own state.

Ex Parte, Young et al (1908) allowed claims against an attorney general but only in equity. The purse of the state or of the DOJ is not open for compensation. Holder's dropping of the case, made an injunction unnecessary.

The sole comfort for Sen. Stevens is the certainty none of those involved, including any supervisors will be working for government in 2010. The bad thing is they will all have jobs paying 10 times their government salaries working for white collar defense firms swamped by the financial crisis second guessing.

Posted by: Supremacy Claus | Apr 1, 2009 6:27:25 PM

Dropping the charges was the right result. But can you honstly say that Stevens doesn't deserve to have his reputation ruined? Protecting the integrity of our adversary system is important. But at the end of the day, Stevens is still a corrupt politician and prosecutorial misconduct will not change that. Wrongs on both sides do not make him a saint.

Posted by: DM | Apr 1, 2009 9:58:10 PM

The DOJ is serving only its own interest. It goes after defendants that will get the DOJ in the paper. It does nothing about paramilitary, well armed, illegal alien gangs that behead people who disrespect them.

It is a rebuttable presumption that DOJ federal thugs should be personally targeted by every innocent defendant. Demand total e-discovery of all their work and personal computers for improper motives. Many will have child porn, since the DOJ is among the biggest consumer and subscriber to child porn. The thug on the bench should get the same treatment, after any adverse ruling, seeking evidence of bias. Then pressure their acquaintances demanding to know why they are on their unjustified vendetta. Parse every word of every utterance. Report every violation of the Rules of Conduct, one at a time, every Rule of Judicial Conduct, one at a time.

At the first opportunity, seek an injunction. At the first opportunity, file a countersuit, challenging all immunities as unlawful in this secular nation. These are all cult criminals incapable of quarter, who should get none.

One also has to hire a second legal malpractice lawyer to terrorize the defense lawyer. The latter owes his job to the DOJ thug. He will never do anything to make the thug in any way uncomfortable or less likely to press unjust charges. They may even be personal friends.

Posted by: Supremacy Claus | Apr 1, 2009 10:41:19 PM

Check the Hyde Amendment -- adopted after the acquittal of Rep. McDade in the 1990s. It's tucked in a note to 18 USC 3006A.

Pub. L. No. 105-119, 111 Stat. 2440 (1997).

During fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending on or after the date of the enactment of this Act, may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous or in bad faith, unless the court finds that special circumstances make such an award unjust. Such awards shall be made pursuant to the procedures and limitations (but not the burden of proof) provided for an award under [the Equal Access to Justice Act]....Fees and other expenses awarded under this provision to a party shall be paid by the agency over which the party prevails from any funds made available to the agency by appropriation. No new appropriations shall be made as a result of this provision.

Posted by: DD | Apr 2, 2009 7:40:57 AM

I don't really know what constitutes mis-conduct, but with that said I have to comment on this. In 1999 I had a relative tried and convicted by a jury in Federal Court. He did not remember signing the "waiver of his rights" and his lawyer at the time said if he lost would could test it. Well needless to say we lost and hired a firm that was shown on the Dateline show and his conclusion was it was signed underneath a stack of papers and has ink touch ups trying to match ink on the top part of document. The morning he was arrested and transported to the Federal building they had a fire alarm and the whole building was evacuated except for him, the DEA agents could not recall an alarm on the witness stand. That is because they were not there as they were still searching his house and the date and time on the Miranda document is during the alarm. The Prosecutor let one guy testify that the auto-matic weapon he had was a heirloom, it was bought by him from his Dad's old roommate. When in fact the same prosecutor during this guys pre-trial hearing had said just the opposite. My relative was found to be a minimum role particpant, but charged with a gun enhancement, he had held a valid gun permit for 20 plus years without incident and it was registered. The prosecution allowed these guys to testify that they had jobs when they had argued during pre-trial that they had not worked for years. My relative is still in Federal Prison and has been since 3-99. After testing the "Miranda Document" they wanted to take it back to Michigan and said they would be able to say what was on top of it as well as what was underneath at the time of signing and the Judge refused any futher testing. The DEA agents had testified that was the only piece of paper in the room on the table at the time of signing. We think they knew what they would find out had they allowed futher testing that they lied not once but twice under oath. We also tried to get a copy of the taping of the alarm but it had been taped over after 30 days. I don't doubt that there is misconduct going on everyday across the USA. My relative received the longest sentence as the others have been out since 2002. He was a first time offender and the only one that went to trial as well.

Posted by: DJ | Apr 2, 2009 9:48:33 AM

DJ--I can't believe I spent the time to read your irrelevant post.

Does anyone remember that AUSA in Detroit who was prosecuted for allegedly hiding evidence in a terrorism case? I wonder whether the public integrity DOJ lawyers will be prosecuted.

Posted by: percuriam | Apr 2, 2009 10:10:21 AM

"DJ--I can't believe I spent the time to read your irrelevant post"

Why is DJ's post irrelevant? I'm glad I took the time to read it. It give's a view of perceived miscoduct.

Posted by: John | Apr 2, 2009 1:52:02 PM

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