Notably, pursuant to the memo, “[c]harges should not be filed simply to exert leverage to induce a plea.”

I also note that certain U.S. Attorney Offices and units within DOJ  have developed policies in the post-Booker era requiring defendants entering into plea agreements to forego arguing for Booker-Gall-Kimbrough downward variances. It would seem that the May 19 memo implicitly prohibits any such unvarying policy by a DOJ unit or OUSA. If each individual defendant and case must be examined on a particularized basis, then no DOJ prosecutor should ever tell a defense attorney that ”our policy” prohibits plea agreements that leave defendants free to argue for a downward variance.

Not a sermon. Just an obsession.

Then, late yesterday, Main Justice’s Joe Palazollo reported that one of the DOJ attorneys who summoned the lawmakers to the unorthodox meeting was Public Integrity’s Brenda Morris, currently under invesitgation in connection with the Ted Stevens prosecution.  Ms. Morris, who left Washington and her Principal Deputy Chief slot last September but continues to work for Public Integrity, has a habit of showing up in troubling and troubled cases. The meeting was also attended by Assistant United States Attorneys from the Middle District of Alabama.

Republican holdover U.S. Attorney, Leura Canary, has already taken much criticism for her office’s handling of public corruption cases against Alabama Democrats, particularly given her husband’s close ties to Republican Governor Bob Riley.

Maybe the meeting is all a big misunderstanding. Nevertheless, how weird. And weirder still that Morris is part of it.

The Guidance is codified at Section 165 of the DOJ’s Criminal Resource Manual. The Criminal Resource Manual is part of the U.S. Attorney’s Manual. Although provisions in the U.S. Attorney’s Manual do not have the force of law and do not create rights, they must be followed by federal prosecutors, and failure to do so may result in disciplinary proceedings. Moreover, many of the policies in the new Guidance relate to constitutional and statutory mandates that clearly do have the force of law.

Failure of federal prosecutors to turn over exculpatory and impeaching information to defendants is a growing crisis in the criminal justice system. The Guidance and related organizational and training measures should help to stem that crisis, but do not go far enough.

According to the DOJ, “the guidance is intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of Justice.” By explicitly ordering federal prosecutors to consult the Guidance “in every case,” the DOJ is forcing even the most obtuse Assistant U.S. Attorneys to carefully and routinely consider their discovery obligations. In the future, a rogue prosecutor who suppresses clearly exculpatory information will have to explain why he or she ignored both the substance of the law and the DOJ procedures established to insure compliance.

In addition, since prosecutors now know that a very detailed review and disclosure of potentially exculpatory information is the established DOJ norm, they will arguably be less likely to rush to indict high-profile white collar cases, before carefully considering the pros and cons of such action.

The DOJ has also directed each U.S. Attorney’s Office (and each DOJ litigating component handling criminal matters) to develop and implement, by Mach 31, 2010, a Discovery Policy “with which prosecutors in that office must comply.” The Discovery Policy should be consistent with the Guidance, but must take into account “controlling precedent, existing local practices, and judicial expectations.” The individual office Discovery Policy is intended to recognize local variations in discovery practices while eliminating “inconsistent discovery practices among prosecutors within the same office.” Each office’s Discovery Policy “must set forth procedures prosecutors are required to follow to obtain supervisory approval to depart from the [office’s] uniform practices in an appropriate case.”

Each U.S. Attorney’s Office (and each DOJ litigating component handling criminal matters) must also name a Discovery Coordinator. These Discovery Coordinators have already been named and trained and must, in turn, train “their respective offices no less than annually” and must “serve as on-location advisors with respect to discovery obligations.”

The detailed steps laid out in the Guidance for gathering, reviewing, and disclosing discoverable information put much-needed meat on DOJ’s pre-existing discovery guidelines.

The Guidance contains several welcome improvements that will clearly be pertinent to white collar investigations: (1) in cases involving parallel proceedings with regulatory agencies, the prosecutor must consider whether the agency in question is part of the “prosecution team” and therefore subject to having its files reviewed for exculpatory information; (2) the prosecutor must be granted access to and review all of a law enforcement investigatory agency’s files, including the entire confidential informant file; (3) “generally speaking, witness interviews should be memorialized by the agent” and “material variances” in a witness’s statements must be disclosed, even if the variances occur within the same interview session or in a pre-trial prep session; (4) all substantive case-related internal communications, including emails, must be preserved and reviewed; and (5) if exculpatory information is discovered, the information itself must be produced, regardless of the format in which it was maintained.

The Guidance also continues certain troubling DOJ policies. Prosecutors are still charged with determining whether exculpatory and impeaching information is material in nature and therefore subject to production. Such self-certifying procedures are inherently inappropriate, because the prosecutor becomes judge and jury of what will be provided to the defense. All potentially exculpatory and impeaching information (including variances in witness statements) should be provided to the defense as a matter of course irrespective of materiality.

The Guidance also declares that case agent notes, which are not typically part of the official file, should only be reviewed “if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview.” In truth, case agent notes are virtually always Jencks Act material if the agent testifies at trial, and should be provided in such situations whether or not a memorandum has been prepared. More importantly, it is the rare official memorandum of interview that is fully consistent with the case agent’s interview notes. Since such inconsistencies are the norm, prosecutorial review is in order.

In summary, the new DOJ Guidance and related measures establish important substantive and procedural mechanisms that should reduce prosecutorial suppression of favorable evidence in white collar cases. But much remains to be done. Efforts are currently underway within the Judicial Conference of the United States to amend the Federal Rules of Criminal Procedure to insure that prosecutors turn over all exculpatory and impeaching information to the defense, regardless of materiality. Such efforts should continue unabated until binding reform is achieved.

So far, all of the articles I have seen on Judge Carney’s dismissal order fail to discuss whether it can be appealed. It can. It is one thing to throw out a guilty plea for an insufficient factual basis. It is quite another to throw out a felony charge brought by the government, particularly when the order of dismissal is based on evidence developed in a separate trial. On the other hand, the felony charge here was contained in a felony information. Felony informations are only valid when the defendant waives indictment. Defendants typically waive indictment when they enter a guilty plea, and that is what Samueli did when he originally entered his guilty plea. If the factual basis for the plea is insufficient, the felony information would have to be dismissed, absent a new waiver by Samueli. But Samueli no longer has any motivation to waive the information. 

It isn’t at all clear to me what the Ninth Circuit will do if the government appeals. Generally, district courts are given broad discretion to decide whether to let defendants withdraw guilty pleas, and that is essentially what happened here.    

Perhaps the more interesting question is what the courts will do if the government now indicts Samueli for lying to the SEC or for engaging in securities fraud.  Before even thinking about the double jeopardy implications of indicting Samueli for lying to the SEC, the government would have  to analyze the likelihood of meeting its Kastigar obligations in the wake of Samueli’s immunized testimony in the Ruehle trial. Not a pretty picture. I’m guessing that the Samueli prosecution is totally over.

I was struck by the last two paragraphs, and particularly the last sentence, of Johnson’s story:

“In naming a special prosecutor, U.S. District Judge Emmet G. Sullivan identified six people to be scrutinized — members of the prosecution team and the chief of the public integrity unit. Other leaders at the department’s criminal division weighed in on the case from time to time, especially after the judge began to complain in the course of last year’s trial about evidentiary problems, according to sources familiar with the investigation.

New officials at the Justice Department this year sifted through files and provided documents and e-mail about the case to Schuelke and the subjects of his investigation. But the criteria they used for sharing electronic messages may not have captured all the communications involving people in the criminal division or other areas of the department’s front office about the Stevens case, the sources said. Officials turned over only e-mail in which at least two of the six Stevens prosecutors were included as addressees, they said.”

Such a limitation on the DOJ’s disclosure of documents to Schuelke is quite remarkable and alarming. If Schuelke knew about it, he certainly should not have put up with it.  The DOJ pledged full co-operation with Judge Sullivan’s probe. If DOJ higher-ups, past or present, had a hand in any of the conduct causing Judge Sullivan to hold the six Stevens-connected prosecutors in contempt, the truth must come out.

Maybe it it was all a mistake. I really don’t wish a white collar criminal investigation on anyone, but what makes Charlie so special? DOJ has not hesitated to prosecute Congressional staffers and mid-level federal officials for relatively picayune failures to disclose income on their financial disclosure forms. And Rangel’s disclosure problems are not an isolated event. The developer of the yacht club also converted Rangel’s mortgage to an interest free loan. WSJ says that this appears to be a violation of the House ban on gifts. And Rangel apparently listed both DC and Harlem residences as homesteads in order to save on taxes.

Here is a situation where the U.S. Attorney’s Office for the District of Columbia or DOJ’s Public Integrity Unit should already be investigating. Here is a situation where the failure to initiate an investigation is most certainly a political act.

Full disclosure: I represent and have represented witnesses, subjects, and targets in investigations carried out by the Public Integrity Unit. This is not about the line attorneys in that unit. It is about how political the new Administration is going to be in the way that it investigates and does not investigate public corruption in Washington and around the nation. An omission, as well as an indictment, can be a political act.

“Sources said that among the questions investigators are pursuing is how closely the work of the Stevens trial team was supervised by officials in the Criminal Division. Senior political and career lawyers there may have offered input and monitored decisions about the kinds of material to turn over to Stevens’s defense team at Williams & Connolly, the sources added.”

Senior political and career lawyers in the Criminal Division were monitoring and offering input on the trial team’s discovery obligations? If true, this is extraordinarily unusual, even for a high-profile corruption case, absent a specific complaint or request by the defense team. And if these senior officials really were micro-managing the trial team’s Brady productions, they seem to have screwed up in spectacular fashion.