It could have been over in a flash.  After word broke of the Department of Justice fiasco that resulted in the conviction of Alaska Senator Ted Stevens, and the massive, concerted failure of the United States Attorney to disclose to the court and defense the exculpatory and impeachment evidence that mysteriously never surfaced, the DOJ “fixed” the problem.

Following the Justice Department’s agreement in 2009 to vacate the convictions it obtained of former Alaska Senator Ted Stevens, it conducted an internal probe into the conduct of its senior lawyers and—surprise!—exonerated them and itself. It then refused to make the report public.

Nothing to see here, our government said. Move along.  Judge Emmet Sullivan refused to blindly accept the government’s word, and instead

appointed a special prosecutor, Henry F. Schuelke, III, an eminent Washington attorney and former prosecutor, to probe the DOJ’s conduct. Late last week, Shuelke’s 525-page report was released, over the loud objections of DOJ lawyers.

The DOJ was not pleased, because nothing good could come from airing its massive failings. It could cause people to lose faith in their government and undermine the critical trust in the government’s word. Apparently, the newly-crafted marketing slogan, “if you see something, say something,” was a one-way street,

The Schuelke Report was made public last week, and its enormous size may bring many to their feet, though it’s more likely to prevent widespread reading.  There aren’t too many of us with either the time or inclination to sift through a 525 page report.  Hence, we rely on braver souls.

Over at PrawfsBlawg, Southerwestern Law School Professor Caleb Mason, who spent two years as an AUSA in the Southern District of California, has done yeoman’s work on the report.  He produced a laundry list of the government’s excuses for its failings:

– unawareness of the existence of the Brady/Giglio information;

– denial that some information was exculpatory;

– forgetfulness;

– Agent Kepner’s failure to write an FBI 302 of Mr. Allen’s interview on April 15, 2008;

– failure to review their notes of that interview;

– failure to scrutinize important source documents;

– a rushed and unsupervised Brady/Giglio review;

– delegation of the Brady/Giglio review to FBI agents and to other

– prosecutors unfamiliar with the case;

– the compressed trial schedule: 52 days between arraignment (July 31) and the start of jury selection (Sept. 22);

– reliance on the judgment of others;

– failure to supervise;

– micro management of the trial by DOJ’s “front office”; and

– inexperience and lack of Brady/Giglio training

Missing from the list is the most obvious explanation. No one thought they would get caught. And indeed, getting caught is at the core of all Brady/Giglio failures, since the defense (and the court, maybe) only learns about what it should have been given but wasn’t because someone spills the beans or by pure happenstance. If it happens at all, it’s during trial (when recognition and use of Brady/Giglio is at best limited and at worse too late) or after a conviction, when the burdens have flipped.

Mason notes some of the more disengenuous aspects of the government’s excuses.

First, there is no excuse, in my mind, for the FBI’s refusal to record witness interviews.  The FBI is one of the last holdout agencies in this regard, and I have never gotten a satisfactory answer as to why.  Here’s one that an agent once told me (I assume he had heard this at some point in a training lecture):  “When an FBI agent raises his hand and swears that something happened, that should be good enough for any juror to believe that it happened.” 

I can almost hear J. Edgar Hoover saying these words. I can picture him wearing pearls as he does, but that’s just me.  This is the zealots creed, where nothing should stand in their way as they serve Justice, and are entitled to get there any way possible. 

The FBI’s (and other federal law enforcement agency’s) refusal to record interviews is long-standing travesty. They have the ability to do so, obviously, and deliberately refuse, so that the only “record” of what was said is the agent’s recollection. It’s essentially impossible to dispute. They know it. We know it. The courts know it. And yet, it remains blessed.

And it’s worse: the government decided to get tightfisted with discovery and not do full-file discovery (as many US Attorney’s offices and DA’s offices do).  So that meant that the government now had an obligation to go through all its evidence and identify everything that might reasonably be of value to the defense—whether negating the charge or impeaching a witness.

Curiously, Mason adopts the government’s claim that this was just one big accident, born of a thousand small errors. It could be based on his former position as prosecutor, as every critique of prosecutorial conduct is required to include the standard caveat of how they are honorable, wonderful, well-intended folks. To entertain the notion that they knew what they were doing and did it anyway is not permitted, as that would mean they are malevolent and dishonorable. Better stupid than evil, though they smarten right up when it comes to everything else they do.

Based on these generic overarching views, Mason suggests that the fix is easy and obvious, that all interviews be recorded and that all prosecutors provide full-file (also called open file) discovery.

Seriously: if you want to get an order of protection for something that needs to be kept secret, go to the judge and get it.  But otherwise, turn over the file.  All of it.  If you can’t win your case with full-file discovery, then you’re in the wrong line of work.  That is, if the government couldn’t convict Stevens with Allen being impeached with the April interview and with the Bambi affidavit, then they should either have dug up some better evidence or dropped the case.  

His point is well-taken. The government still argues, routinely, that they would be unduly prejudiced by disclosure. It’s a totally irrational argument, as if what they contend to be the evidence, the facts, becomes less factual by revealing it to the defense. The real fear is that providing hard information to the defense allows the defendant to prepare, to investigate, to challenge, and thus makes it harder to sandbag the defense at trial.  This is the “level the playing field” argument, a bizarre fallacy that courts blindly embrace.

Completely missing from the disease, and hence the cure, is one critical factor, that one almost no one in government (any branch) is willing to utter. The government (by which I mean agents and prosecutors) sometimes lie, conceal, manufacture, fabricate. Whether it’s intentionally malevolent or rationalized by zealous righteousness doesn’t matter. The result is the same.

Perhaps Mason’s cure would help somewhat if we lived in the fantasy world where all the government’s men (and women) were honorable and well-intended, unconflicted and prepared to see a crime unresolved for the sake of fairness and adherence to the law.  But we don’t.  And even now, after a 525-page report, no one will admit it.