- The Washington Times - Thursday, April 9, 2009

On the same day this week that a judge dismissed the conviction of former Sen. Ted Stevens of Alaska, lawyers in another Washington courtroom sought a similar dismissal of the case against their client, Farzad Darui.

As in the Stevens case, the attorneys accused federal prosecutors of manipulating documents and withholding evidence in the case of Mr. Darui, who is accused of embezzling $435,000 from the Islamic Center of Washington, D.C.

The prosecutors have denied any wrongdoing and a judge has not ruled on the defense's charges. But the two are part of a recent rash of cases that has led many defense lawyers and the nation's attorney general to question whether some prosecutors are out of control and driven by the urge to win, even at the expense of justice.

“I expect them to play hard, but I expect them to play fair,” said John Wesley Hall, an Arkansas lawyer who is president of the National Association of Criminal Defense Lawyers. “But some of them seem to think they are above the rules and can do what ever they want.”

The charges of prosecutorial abuse range far and wide: from an otherwise nondescript gun-possession case in Boston to such headline-grabbing cases as the Duke lacrosse rape investigation and the perjury trap set for baseball star Barry Bonds.

One defense lawyer said the first thing a visitor sees in the offices of the Justice Department's Public Integrity Section are headlines from the cases the unit has won tacked to a bulletin board.

But in a speech Wednesday to newly sworn-in U.S. assistant attorneys, Attorney General Eric H. Holder Jr. told them victory should not be their goal.

“Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing,” he said, according to an Associated Press account of the unannounced appearance. “Anybody who asks you to do something other than that is to be ignored. Any policy that is at tension with that is to be questioned and brought to my attention. And I mean that.”

Nor is the attorney general the only overseer who thinks prosecutors have tended to cut corners in pursuit of courtroom victory.

Federal District Judge Mark L. Wolf, who has been on the bench for more than 20 years, said in a recent filing that he has seen “repeated failure to disclose information” in cases he has handled.

Judge Wolf included nine other examples of prosecutors withholding evidence in cases in his courtroom.

The order was filed as part of a gun-possession case against Darwin E. Jones, in which prosecutors did not reveal to defense attorneys statements that a police officer had made that were contradicted by testimony the officer later gave. Although Judge Wolf, a Reagan appointee, berated the prosecutors, he decided not to toss that officer's evidence, which essentially would have killed the government's case.

Jones has since pleaded guilty.

In the Stevens case, questionable moves by the prosecution began to emerge during a trial that ended with a conviction of failing to disclose more than $250,000 in gifts and home renovations. Mr. Stevens, who had served as a Republican senator longer than anyone else in the chamber's history, lost a tight re-election battle just days after the jury verdict.

More evidence uncovered after trial showed prosecutors consistently failed to reveal evidence that could have helped Mr. Stevens' defense and may have even allowed the key witness to testify falsely.

Last week, Mr. Holder decided the case had suffered too many problems to be salvaged and asked a judge to throw it out. Judge Emmet Sullivan agreed but, in a rare move, also ordered a criminal investigation into six prosecutors involved in the case, including the two top lawyers in the Public Integrity Section.

Also Wednesday, Mr. Holder named a new head to the ethics unit, which is conducting its own review of the conduct of the prosecutors in the Stevens case. Mary Patrice Brown, the head the criminal division of the U.S. Attorney's Office in the District of Columbia, was tapped to run the Office of Professional Responsibility while H. Marshall Jarrett, who had run the ethics unit for more than a decade, will now head the executive office of U.S. attorneys.

The Justice Department said the moves are not related to the Stevens case.

“The two have absolutely nothing to do with each other,” said Justice Department spokesman Matthew A. Miller. “These moves were planned well before yesterday.”

But in his speech to the new attorneys, Mr. Holder said he was unhappy about how the department had drifted away from its values.

“One of the things that we've got to really understand and get back to is that the policies that we follow have to be imbedded to and connected to our values as a nation,” Mr. Holder said. “I think there's been a little distance between those two in the recent past. I don't mean to be critical, and yet I think I have to be honest with my feelings.”

Lawyers and legal analysts have criticized the aggressive actions of other prosecutors as putting a zeal for convictions ahead of justice and stretching the bounds of the law.

For example, Mr. Bonds, the all-time Major League Baseball home-run king, was called by prosecutors to testify before a grand jury, ostensibly to gather evidence in a steroid distribution case involving others.

According to grand jury leaks, which are common in high-profile cases, they asked him about his own steroid use, which Mr. Bonds reportedly denied. Prosecutors have since filed perjury and obstruction of justice charges related to that testimony, even though taking steroids is not a crime.

Ex-referee Tim Donaghy is serving a 15-month prison sentence related to his efforts to affect National Basketball Association games on which he had placed bets, though the exact charges were “conspiracy to engage in wire fraud” and “transmission of wagering information” across state lines.

In the Duke lacrosse case, three players on the team were charged with raping a stripper during a house party. The case ultimately was dropped after the charges were proved baseless, brought about by a reckless district attorney. The district attorney, Mike Nifong, ended up losing his law license and spending a day in jail for criminal contempt of court.

Defense lawyers contacted Wednesday by The Washington Times differed on whether the problems that plagued the Stevens case - particularly withholding exculpatory evidence - is endemic throughout the Justice Department.

”I think this is certainly the exception to the rule nationally,” said Michael Weinstein, who is a former trial attorney for the Justice Department and now works at the Mid-Atlantic firm Cole Schotz. “Do I think it's a pattern that is starting to exist in the department? I think the answer is no.”

But Barry M. Hartman, a Washington lawyer with K&L; Gates who also used to work in the Justice Department - rising as high as acting assistant attorney general, disagreed.

“At least in my experience, there is a problem of the government being extremely narrow in its view of what does, and doesn't, have to be given to the defendant,” he said. “I would say there has been a greater frequency of prosecutors trying to avoid producing information.”

Scott A. Coffina, a white-collar defense lawyer who previously served as associate counsel to President George W. Bush, said he doesn't think there is an endemic problem with prosecutors failing to reveal evidence, but he does think the lasting impact of the Stevens case will be prosecutors “erring on the side of disclosure.”

“This will underscore the value of an aggressive defense and aggressive pressure for discovery from the government as soon as possible, and raising questions about whether you've received everything,” he said. “I think the judges will continue to look at it in a measured way.”

Wendy Wysong, a white-collar defense lawyer and former federal prosecutor of 16 years who worked for Mr. Holder when he was U.S. attorney in the District of Columbia, said the attorney general's opinions on the matter are unmistakable.

“His view was turning over exculpatory information was absolutely critical and that it is one of the most important obligations a prosecutor had,” she said.

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