Prosecutor Who Ran Ethics Unit Leaves Justice Department

April 17, 2012

The New York Times on April 17, 2012 released the following:

“By CHARLIE SAVAGE

WASHINGTON — The Justice Department on Monday announced the departure of a high-profile prosecutor who ran its ethics unit during the botched case against Senator Ted Stevens and has since played a prominent role in the Obama administration’s efforts to prosecute officials for leaking information to the press.

The departure of the prosecutor, William M. Welch II, was disclosed in a motion before a federal appeals court in Richmond, Va. The department informed the court that he would no longer represent the government in the case against Jeffrey Sterling, a former Central Intelligence Agency official who is accused of leaking information to James Risen, an author and a reporter for The New York Times.

“Mr. Welch is leaving the Department of Justice for a job in the private sector,” the motion said, but it did not give details.

Another department official confirmed that Mr. Welch had retired, saying that his last day was Friday, and that he was taking a job in the Boston area. A law firm that represented him during the fallout from the Stevens case also confirmed that he had left the Justice Department. NPR first reported Mr. Welch’s departure on Monday.

A hard-charging prosecutor, Mr. Welch got his start in 1989 in the Justice Department’s tax division and later worked as an assistant United States attorney in Nevada and in Massachusetts. In August 2007, he was made acting deputy chief of the public integrity section at Justice Department headquarters, and the following March became its chief.

In that position, he oversaw the trial team that won a conviction against Mr. Stevens in October 2008 for failing to report gifts from an oil-services firm. But the conviction was withdrawn and the case collapsed after it emerged that prosecutors had failed to turn over information to the defense that could have helped Mr. Stevens, an Alaskan Republican who lost re-election in November 2008 and later died in a plane crash.

The federal judge overseeing the case held Mr. Welch and other prosecutors involved in the case in contempt of court, and the judge and the Justice Department opened investigations. Last month, however, the judge made public the results of his investigation, and the findings largely exonerated Mr. Welch.

Specifically, the report found that Mr. Welch had been cut out of direct supervision of the trial team because his superiors in the criminal division had taken a strong interest in the case and so he had focused on other cases. It also found that “to his credit, on each occasion” when disclosure issues were brought to Mr. Welch for a decision, he directed prosecutors to provide the information to the defense.

Back in 2009, Mr. Welch was replaced as head of the public integrity section. In October of that year, he returned to the United States attorney’s office in Massachusetts but continued to work for the criminal division, whose new head, Lanny A. Breuer, asked him to take up several largely dormant leak investigations left over from the Bush administration years.

One of those cases was against Thomas Drake, a former National Security Agency official whom Mr. Welch eventually prosecuted in connection with leaks to The Baltimore Sun about enormous waste and mismanagement within the agency.

Mr. Welch initially sought conviction on charges that could have put Mr. Drake in prison for 35 years, winning an indictment in April 2010. But the case against Mr. Drake largely collapsed amid a dispute over what classified evidence prosecutors could use.

Mr. Drake pleaded guilty to a single misdemeanor charge and received a year of probation, while all the major charges were dropped and he avoided prison time. When the judge overseeing the case accepted the deal in July, he called the government’s handling of the case — putting Mr. Drake through “four years of hell” and devastating him financially, only to drop the major charges on the eve of trial — “unconscionable.”

Mr. Welch also helped revive an investigation against Mr. Sterling, who is accused of providing information about what was portrayed in Mr. Risen’s 2006 book, “State of War,” as a botched effort to sabotage Iranian nuclear research in 2000. Mr. Sterling was indicted in December 2010.

That case, too, is in trouble. Mr. Welch had been seeking to compel Mr. Risen to testify against Mr. Sterling, but Mr. Risen’s lawyers invoked the First Amendment and said he would not testify about any confidential sources. A district court judge ruled in favor of Mr. Risen. In appealing that ruling, prosecutors told the appeals court that if the ruling stands, it “effectively terminated the prosecution” of Mr. Sterling.”

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Congress Must Act to End Prosecutorial Misconduct

April 11, 2012

Huffington Post on April 11, 2012 released the following:

By: Ginny Sloan

“When federal prosecutors charged the late Senator Ted Stevens (R-AK) with failing to report more than $250,000 in illegal gifts and home renovations, they knew the stakes were sky high. Stevens, after all, was only the 11th senator in history to be indicted while in office. In 2008, the prosecutions succeeded in convincing a Washington, DC jury to convict Stevens. A month later, Stevens, the longest serving Republican senator in history, was defeated in his bid for re-election by fewer than 4,000 votes; most observers think the conviction helped to sway the election. Stevens died two years later in a plane crash.

Thanks to a two-and-a-half year independent investigation ordered by the judge in the case, Emmet Sullivan, and finally released several weeks ago, we now know how prosecutors won Stevens’ conviction: they cheated. They violated his constitutional rights by intentionally concealing evidence that they knew would have supported Stevens’ claim that he intended to pay for all work performed on his house. They hid documents and they allowed a cooperating witness to testify falsely to the jury. The investigators’ 514-page report is a chilling reminder that not even the most powerful leaders in the nation are safe when federal prosecutors ignore their duty to seek justice, and instead pursue victory at any cost.

Sadly, the Ted Stevens case was not an isolated incident. Although the failure to disclose evidence is a constitutional violation that by its very nature often goes undiscovered (anything that the government chooses not to disclose to the defense generally remains unknown), we still know it occurs with disturbing frequency. For example, a 2010 USA Today investigation documented 86 cases since 1997 in which judges found that federal prosecutors had failed to turn over evidence that they were legally required to disclose. A number of organizations have reached similar conclusions about the frequency of these violations.

I have tremendous respect for the men and women who serve as federal prosecutors and believe that the vast majority of them act in good faith to fulfill their constitutional and legal obligations. However, it is difficult for even well-meaning prosecutors to understand what exactly those obligations entail in the face of murky rules and conflicting standards. When violations are occurring by even those prosecutors who intend to seek justice, something must be done.

Legislation offered by Senator Lisa Murkowski (R-AK) gives Congress the opportunity to address this serious problem. Senator Murkowski’s “The Fairness in Disclosure of Evidence Act” is a bipartisan proposal that would require federal prosecutors to turn over to defendants all evidence favorable to their cases, and would provide appropriate penalties when they fail to do so. Passage of the bill would ensure that defendants receive all information to which they are constitutionally entitled, and would create greater consistency in federal prosecutions by eliminating jurisdictional disparities.

The Constitution Project has long been dedicated to protecting constitutional safeguards in the criminal justice system, and the Murkowski bill is an important step towards doing just that. Its safeguards are the bedrock of our system and absolutely essential in protecting the public from abuses of the government power to deprive individuals of their liberty and even their lives.

We recently released a statement from 140 criminal justice experts from across the political spectrum calling on Congress to adopt legislation to address the problem highlighted in the Stevens case — legislation that is consistent with the Fairness in Disclosure of Evidence Act. More than 100 former federal prosecutors are among those joining the call, including: Stuart Gerson, former Acting U.S. Attorney General under President Clinton; Larry Thompson, former Deputy Attorney General during President George W. Bush’s first term; former FBI Director William S. Sessions; and famous author Scott Turow.

These experts point out that federal courts, the Department of Justice and other entities have for years tried to fix the problem, only to articulate inconsistent or inadequate standards, making it difficult for individual prosecutors to determine the scope of their obligations to disclose information. The group concluded, “Only federal legislation can adequately address these continued violations by federal prosecutors, creating a uniform standard for what must be disclosed and what remedies will exist for non-disclosure, and sending a strong message to the DOJ that there will be consequences when federal prosecutors violate their discovery obligations.”

Congress has the power to prevent another injustice like what happened to Senator Stevens from occurring. It should act swiftly to pass the Fairness in Disclosure of Evidence Act, creating clear standards for what information federal prosecutors are obligated to disclose to the defense and providing appropriate remedies when prosecutors fail to do so.”

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Douglas McNabb – McNabb Associates, P.C.’s
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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.