Monday, November 21, 2011
The DOJ previously admitted to its failure to produce exculpatory information and "moved to set aside the verdict and dismiss the indictment of Senator Stevens with prejudice." (see here) Judge Emmet G. Sullivan now issued an order that notes
"(1) the significance of the government's decision to dismiss the indictment and not to seek a retrial; (2) the government's admission that it committed Brady violations and made misrepresentations to the Court during the prosecution of Senator Stevens; (3) the prosecutorial misconduct that permeated the proceedings before this Court to a degree and extent that this Court had not seen in twenty-five years on the bench; and (4) the likelihood based on events during and after the trial, including the information revealed by the Department of Justice in support of its motion to vacate the verdict and dismiss the indictment, that the prosecution team may have committed additional constitutional and procedural violations during the Stevens prosecution that had yet to be discovered or addressed, the Court appointed Henry F. Schuelke, III to investigate and prosecute such criminal contempt proceedings as may be appropriate against the six Department of Justice attorneys responsible for the prosecution of Senator Stevens...."
The court noted how Mr. Schuelke had submitted in camera a 500-page "report detailing the findings of his investigation." The court is allowing DOJ and attorneys for Senator Stevens "the opportunity to review the report." These individuals will be allowed to make objections as to why this report should not be released. The sealed materials cover matters related to the cases of Boehm, Kott, Kohring, and Stevens. The court concludes it's order stating, "[W]hile the Court will give appropriate consideration to any legal argument to withhold Mr. Schuelke's Report from the public, the Court notes that the 'presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." (citation omitted).