Serious, Widespread and Intentional Concealment of Evidence by DOJ and US Attorneys


By: Houston Criminal lawyer John T. Floyd and Paralegal Billy Sinclair


Former Alaska lawmaker, Vic Kohring, has entered a guilty plea admitting he accepted bribes from an “oil man” for his help in keeping taxes low on the Alaskan oil industry.  The plea comes after an appellate court tossed out Kohring’s original conviction, along with others convicted in the scandal, after finding that the Government had intentionally withheld evidence in the trials.  Kohring’s case documents the years of scandal resulting from official corruption between the oil industry and Alaska’s politicians and the disturbing pattern of misconduct by prosecutors, hell bent on getting the bad guys, that followed.

Alaska State Rep. Victor Kohring was convicted in a federal court in 2007 on corruption charges that alleged he took bribes from oil industry insiders. He was sentenced to 42 months in prison and had served a year incarcerated before his case was reversed after a finding that the Government had intentionally mishandled the trials of the defendants.
One year after securing the Kohring conviction, federal prosecutors sought and secured a conviction of Alaska’s most powerful politician, Ted Stevens, who was the longest serving lawmaker in Washington at the time of his conviction in 2008. Despite his corruption conviction, Stevens barely lost his reelection bid just eight days later.
But, before his death in a plane crash in August 2010 at age 87, the former lawmaker would have vindication in the same federal court system which had convicted him. In April 2009 U.S. District Court Judge Emmet G. Sullivan reversed Stevens’ conviction at the behest of U.S. Attorney General Eric Holder, telling the U.S. Justice Department (“DOJ”) that, “in 25 years on the bench, I have never seen anything approaching the mishandling and misconduct that I have seen in this case.” Adding that the misconduct of six DOJ prosecutors was so “shocking and disturbing” that the judge felt compelled to  appoint Henry F. Schuelke to investigate the egregious prosecutorial misconduct to determine if criminal charge should be brought against the prosecutors.

Attorney General Holder inherited the Sen. Stevens case which, even before he had been sworn in January 2009, had become a judicial mess. The issue that brought the case to the forefront of public scrutiny was the revelation that prosecutors had withheld statements a key witness had given to law enforcement officials which was diametrically opposed to his “under oath” trial testimony. Holder removed the prosecutors from the case and asked Judge Sullivan to dismiss the indictment against the former senator.
“I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial,” Holder informed the court and the public. He added that the DOJ has an obligation to make sure that all cases are “handled fairly and consistent with its commitment to justice.”
In the wake of the Stevens fiasco, the DOJ on January 4, 2010, through then Deputy Attorney General David Ogden, issued “Guidance for Prosecutors Regarding Criminal Discovery” (“Ogden Memo”) as well as other training measures. The Ogden Memo provides that “in order to meet discovery obligations in a given case, Federal prosecutors must be familiar with [Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. § 3500 (Jencks Act), Brady v. Maryland, and Giglio v. United States] and with the judicial interpretations and local rules that discuss or address the application of these authorities to particular facts. In addition, it is important for prosecutors to consider thoroughly how meet their discovery obligations in each case. Toward that end, the Department has adopted the guidance for prosecutors regarding criminal discovery … The guidance is intended to establish a method 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. The guidance is subject to legal precedent, court orders, and local rules.”
The Ogden Memo imposed a detailed four-step process federal prosecutors must be familiar with in order to fulfill their “discovery obligations.” We feel that every state prosecutorial and law enforcement agency, as well as those non-law enforcement agencies that cooperate with law enforcement investigations, should adopt the four-step discovery obligations set forth in the Ogden Memo, or, at a minimum, provide internal training relative to those obligations. Just nine days after the Ogden Memo was released, the Securities and Exchange Commission’s (“SEC”) Enforcement Division announced a “cooperation initiative” with the DOJ which allows the SEC to engage in “cooperation agreements, deferred prosecution agreements, and non-prosecution agreements” with individuals under investigation by that agency. Most legal experts believe the upside of this cooperation between the SEC and DOJ will be to impose the Ogden Memo discovery obligations on the SEC.
Beyond a doubt, the Ogden Memo was desperately needed. Just nine months after the memo’s release USA Today released a thorough investigative piece detailing misconduct by federal prosecutors in 201 cases since 1997. It is an issue we dealt with last year (here). This investigative piece was followed by a Ninth Circuit Court of Appeals ruling earlier this year concerning withheld evidence in the Kohring case. The Brady/Giglio violations in Kohring’s case were similar to those in the Stevens case. Kohring claimed that prosecutors solicited false testimony from two key witnesses against him; withheld evidence that one of the witnesses had been investigated for sexual misconduct with minors; withheld evidence that would have “cast doubt” on the witness’s “memory and the amount of money paid to Kohring;” withheld evidence that money received from this witness was given “out of friendship and pity rather than a corrupt quid-pro-quo relationship; withheld evidence that another witness made inconsistent statements during the investigation and had a “questionable relationship … with an investigating FBI agent;” and withheld evidence that another government witness did not think Kohring was corrupt.
At the outset of its discussion in the Kohring case, the Ninth Circuit reiterated the following longstanding Brady/Giglio post-conviction constitutional discovery principles enunciated by the Supreme Court:

  1. Brady held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”
  2. Giglio extended the Brady rule to include evidence that “impeaches a witness’s credibility.”
  3. Strickler v. Greene held stated the three prerequisites for a Brady/Giglio violation: “(1) the evidence at issue must be favorable to the accused either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.”
  4. United States v. Bagley held that evidence is “material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”
  5. Kyles v. Whitley held that there is a “reasonable probability” of prejudice when the withheld evidence “undermines confidence in the outcome of the trial.” The Court added that withheld evidence is considered “collectively, not item by item,” and if the withheld evidence is “merely cumulative,” then the failure to disclose is not a violation. The Court, however, cautioned that if a reviewing court finds a Brady/Giglio violation, “there is no need for further harmless error review.”
  6. Strickler v. Greene buttressed Kyles by holding that a “reasonable probability” of harm may be found “even where the remaining evidence would have been sufficient to convict the defendant.”
  7. Banks v. Dretke held that impeachment evidence was not “merely cumulative” when the withheld evidence is of a different character than evidence already known to the defense.
  8. Cone v. Bell also buttressed Kyles by holding that “there is a reasonable probability [when] the withheld evidence would have altered one juror’s assessment” of the evidence against the defendant.

While the Ninth Circuit found substantial Brady/Giglio violations, the appeals court said it did not believe the prosecution “acted flagrantly, willfully, and in bad faith;” therefore, the court did not exercise its “supervising authority” by dismissing the indictment against Kohring. Instead, the court opted to rely upon the standard “appropriate remedy” for Brady/Giglio violations which is “usually … a new trial.” With the Ninth Circuit concluding there had been no “outrageous government conduct” in the investigation and prosecution of Kohring, the former Alaska state representative informed the federal court in October that he would plead guilty to one count of extortion-conspiracy, effectively closing the door on the case and thereby removing the specter of another Stevens-like scandal for the DOJ to deal with.
Whether or not the Ninth Circuit was giving the DOJ legal cover in the Kohring case because of the intense media intention for similar conduct in the Ted Stevens case is open to debate. But what is not subject to debate is the continuing legal fallout from the Stevens case. The New York Times reported on November 21, 2011 that Robert Schuelke had presented to Judge Sullivan a 500 page report, based on a review of “150,000 pages of documents” and the interviews of “dozens of witnesses.” The Times said Schuelke informed Judge Sullivan that while the Stevens’ investigation and prosecution were “permeated” with “serious, widespread and at times intentional” withholding of Brady/Giglio material, he did not think DOJ officials involved in the prosecution should be prosecuted for criminal contempt of court because Judge Sullivan had not issued “an order specifically instructing prosecutors to obey the law by turning over any exculpatory evidence.”
Judge Sullivan’s failure to issue such an order notwithstanding, we believe Schuelke ducked the criminal contempt issue to insulate the DOJ from further embarrassment. A judge should never be required to “order” federal prosecutors to obey the law. They have an ethical duty to honor, respect, and uphold the law at all times. More to the point, Rule 3.8(d) of the Model Rules of Professional Conduct, promulgated by the American Bar Association in 1983, imposes the following “special responsibilities” on a prosecutor:
“The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”
The Schuelke report found prosecutors had engaged in the “systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens’] defense and his testimony, and [would have] seriously damaged the testimony and credibility of the government’s key witness.” The Schuelke report further concluded the “evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed—at least to the court and to the public—but for their exhaustive investigation.”
Put simply, federal prosecutors prosecuted a prominent and respected public official knowing he was likely innocent—and they would have concealed their wrongdoing had an FBI agent in 2009 not filed “an affidavit” fingering the prosecutors for failing to turn over “exculpatory evidence” to Stevens and had Attorney General Holder not took the “extraordinary request to set aside Mr. Stevens’ conviction,” reported the Times.  This is official corruption and it should be criminal conduct, plain and simply.
Judge Sullivan noted that while Schuelke did not recommend criminal contempt prosecution of the prosecutors, one or more of the prosecutors could still face obstruction of justice charges. We strongly recommend that the DOJ, through Attorney General Holder personally, consider obstruction of justice charges against all the prosecutors involved in intentional wrongdoing in the Ted Stevens travesty. At a minimum, these prosecutors need to have their careers and reputations threatened by criminal prosecution for deliberately and methodically ruining that of Senator Stevens’. The federal prison system is populated with scores of inmates convicted of far less criminal wrongdoing than that committed by these prosecutors. It is long past time for the DOJ to step up to the plate and put an end to deliberate suppression of Brady material, as was also seen in the case with former Alabama Gov. Dan Siegelman under the guidance of former Attorney General Alberto Gonzales.
Stevens, Kohring, and Siegelman are not aberrations. Some would argue they have become the rule, not the exception, with federal prosecutors who want to doctor their professional resumes with white collar crime convictions, especially when it involves prominent public officials. Given the enormous amount of power held by prosecutors and the long standing, well-known legal and ethical rules surrounding disclosure of Brady material, these prosecutors are worse, and far more culpable, in criminal wrongdoing than many of the public officials they have convicted.


By: Houston Criminal Attorney John T. Floyd and Paralegal Billy Sinclair.
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization