The words that were spoken as United States District Court Judge Emmet Sullivan grew tired of the Justice Department’s foot-dragging were extraordinary.  From the Legal Times, which has followed this closely, as has Mike at Crime and Federalism :

At a hearing Tuesday morning in the U.S. District Court for the District of Columbia on the government’s motion to dismiss, Sullivan said Stevens’ case was symptomatic of a larger trend of misconduct.  The judge urged his colleagues around the country to enter exculpatory evidence orders at the outset of every criminal case, and to require that exculpatory material be turned over in a usable form.

The judge said Attorney General Eric Holder Jr. should train new and veteran prosecutors on the rules of evidence.  He further suggested that President Barack Obama obtain the commitment of prospective U.S. attorneys to abide by these rules, and that the Senate Judiciary Committee push nominees on this point during confirmation hearings.

“We must never forget the Supreme Court’s directive that a criminal trial is a search for the truth. Yet in several cases recently, this court has seen troubling failures to produce exculpatory evidence in violation of the law and this court’s orders,” Sullivan said.

Strong words, backed up by strong actions, almost unheard of in federal court.  But still, the nagging questions of why Judge Sullivan did nothing about this during the trial itself, and the fact that the case happened to involve a United States Senator, might take some of the bloom off the rose. 

But there is a second story about Judge Sullivan that gives real meaning to his admonition.  Via Turley and Jeralyn, Judge Sullivan is bringing the hammer down in the case of Dr. Ayman Saeed Abdullah Batarfi, a Gitmo detainee who brought a habeas petition.

The Justice Department improperly withheld important psychiatric records of a government witness who was used in a “significant” number of Guantanamo cases, a federal judge has concluded.

The government censored parts of the records, but enough has been made public that it’s clear that the witness, a fellow detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts. The witness provided information in the government’s case for detaining Aymen Saeed Batarfi, a Yemeni doctor who the government announced last week it would no longer seek to detain.

And Judge Sullivan made clear that he’s had enough of the government:

During a hearing last week, Sullivan castigated the government for not turning over the medical records and ordered department lawyers to explain why he shouldn’t cite them for contempt of court.

“To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high . . . is fundamentally unjust, outrageous and will not be tolerated,” Sullivan said, according to a transcript of the hearing.

“How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?”

And he’s not putting up with it anymore:

…”I’m not going to continue to tolerate indefinite delay on the part of the United States government,” Sullivan said. “I mean this Guantanamo issue is a travesty . . . a horror story . . . and I’m not going to buy into an extended indefinite delay of this man’s stay at Guantanamo.”

“The sanction is going to be high,” he said. “I’ll tell you quite frankly if I have to start incarcerating people to get my point across I’m going to start at the top.”

Batarfi is no Senator.  Gitmo detainees don’t generate a great deal of public sympathy, nor even much press attention, so barking at the government has little beneficial payoff.  This makes it all quite real for Judge Sullivan, and his statements and actions, both disclosing what is increasingly appearing to be widespread misconduct and actually doing something about it are, well, shocking.

It’s premature to suggest that Judge Sullivan’s epiphany will spread across the federal judiciary, district by district, judge by judge, to force others to realize that the games the government has been playing forever, and which judges have routinely ignored, are really happening and have rendered the criminal justice system a farce.

But it’s a start.  Had it just been Ted Stevens, I would be reluctant to gush about Judge Emmet Sullivan’s statements and actions.  Stevens was just too easy to fall into the isolated incident category.  But with Judge Sullivan’s words and deeds in the Batarfi case, I believe he means business.  Given the nature of the federal judiciary, this is quite a brazen act of bravery.