Chapter 19: The Last Chance
They filed an appeal of Judge Werlein’s denial of a new trial on the perjury and obstruction convictions. A few weeks later, Nicholas Marsh committed suicide, as already mentioned in Chapter One. That brought the prosecutorial misconduct and the department’s incompetence to the forefront again.
On June 2, 2011, Kathryn Ruemmler moved up to White House counsel—the primary legal advisor to President Obama. He praised her as “an outstanding lawyer with impeccable judgement.” In spite of the reversal of her cases, Huffington Post described her as “a fierce member of the legal team that brought down” Lay and Skilling and reported that she had received the Attorney General’s Award for Exceptional Service for her work on the Enron case. Bad lawyers get rewarded in this system. So how do we think they are going to clean things up? They aren’t.
Oral argument on the new trial appeal with the Fifth Circuit was scheduled for July 5, 2011. Ms. Powell still had high hopes in the system, and believed that the three judges—Jerry Smith, Leslie Southwick and James Graves—would be offended by the misconduct. Wrong again. They denied the motion. They did state that the prosecutors “plainly suppressed” evidence “favorable to the defense”, but said it “was not material” to Brown’s defense. Naturally that was just a boldfaced lie. But what can a person do after a decision like that? Absolutely nothing. They hold people’s lives in their hands and have no qualms about supporting the illegal activity of their colleagues. They even covered their tracks by revising the opinion of the LaCaze case which had held a quote on the Brady point that they wanted to use, so it was no longer there.
Petition for rehearing was denied. Meanwhile, Weissmann moved to the FBI as deputy director. So all of the instigators in this fiasco had rocketed to the top of the government from a launch pad of corrupted convictions.
Chapter 20: Inside the Department of INjustice: The Calculated Corruption of Justice:
Schuelke’s report on the Stevens case misconduct was released on March 15, 2012. On the same day, Alaska Senator Lisa Murkowski, Texas Senator Kay Hutchison, and four others introduced a bill to clarify the Brady rule and give it some teeth: Senate Bill 2197 “Fairness in Disclosure of Evidence Act”. This bill would make producing Brady evidence enforceable.
Attorneys and judges across the country signed a Call for Congress to Reform Federal Criminal Discovery, written by the nonprofit and bipartisan Constitution Project in support of this legislation, explaining the problems with the DOJ’s practices. It was even signed by former Deputy Attorney General Larry Thompson, who had authored some of the department practices under question, and helped pick the Enron Task Force prosecutors. The DOJ, however, vehemently opposed the legislation.
The chapter then backtracks to the investigation of the Stevens case, as uncovered by Schuelke, immaterial to our discussion, so I will pass over it. To conclude, Schuelke found “evidence which compels the conclusion that Brady information was intentionally withheld from the attorneys for Senator Stevens and which “challenged the very integrity of the prosecution.”
Schuelke’s report exposed how Friedrich and Glavin usurped the entire prosecution of Stevens from the time they took office, specifically ordered the withholding of exculpatory information. They, just like with Merrill, masterfully and corruptly orchestrated the convictions. The Steven and Brown cases were carbon copies.
The Brown defense hoped that the timely release of the Schuelke report would help them with their Supreme Court petition for certiorari, based on evidence that the prosecutors “plainly suppressed” was really material to his defense.
Too much politics, I guess, for them to buck the system. Just hide it under a barrel and hope it will go away. Little did they know that Ms. Powell was going to write a book exposing it all.
But just think of all the cases where prosecutorial misconduct is allowed by higher courts either looking the other way, or just rubber stamping the action as okay. I know my case was. I wrote up all the prosecutorial misconduct done in my case and sent it to the 4th Circuit, and they still maintained the conviction. Basically in this country, if the government points a finger at you, guilty or innocent, your ass is grass, and they mow you down.
The Fairness in Disclosure of Evidence Act was introduced to the Senate by Senator Murkowski on March 5, 2012. It was placed in the Judiciary Committee on June 6, 2012, and there it sits. Nothing has been done since its introduction.
Chapter 21: BOHICA? Or Just Over?
The defense team had support for their petition for certiorari to the Supreme Court in an amicus brief written by significant national and state legal organizations and prominent law professors. But at the same time, Oestreicher, the new prosecutor, filed a new motion to the Fifth Circuit to withdraw its mandate from the original 2006 decision, and they again sought additional time in prison for Jim. The Fifth Circuit granted the government’s motion, and denied the defense’s motion that the mandate make clear that Brown was to be resentences to time served. So Judge Werlein scheduled Brown’s resentencing for April, 2012. By law, the resentencing should be for time served.
As typical for court, Werlein sustained all of the government’s objections and denied all of the defendant’s objections. But after dragging things out, he finally pronounced the sentence to be time-served. It was finally over. No more threat of more prison time. After nine long years, it was finished. But Brown was still a convicted felon, with his life irreparably changed.
On April 23, 2012, the Supreme Court denied their petition. All hope in the system rendering justice was gone. Now the only remaining possibility was that state bar associations would investigate each prosecutor as an ethics violation.