Judge Emmet G. Sullivan dismissed the charges against Mr. Stevens, which was expected given the way the case has disintegrated since the conviction in October. But the judge went well beyond that step, declaring that what the prosecutors did was the worst “mishandling or misconduct that I’ve seen in my 25 years.”
Judge Sullivan spoke disdainfully of the prosecutors’ repeated assertions that any mistakes during the trial were inadvertent and made in good faith. He said he had witnessed “shocking and serious” violations of the principle that prosecutors are obligated to turn over all relevant material to the defense.
The judge appointed the attorney Henry Schuelke as special prosecutor to investigate possible criminal contempt charges against the prosecution team.
Mr. Stevens, who was defeated for re-election to the Senate in November after being convicted of ethics violations in the case, told the court that the episode had caused him to question some basic assumptions about American justice.
“Until recently, my faith in the criminal justice system, particularly the judicial system, was unwavering,” he said. “But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed.”
Brendan Sullivan, Mr. Stevens’s chief counsel, said it was clear to him that “the government engaged in intentional misconduct.”
That is one mad, mad judge. And he has a right to be. The bungling of the Stevens case was appalling. Prosecutorial misconduct denied Stevens a fair trial, and denied the American people justice, regardless of his actual innocence or guilt.
Last week Judge Sullivan also took aim at the government's prosecution of Aymen Saeed Batarfi, an accused Al Qaeda doctor whose habeas petition Sullivan has presided over:
The Justice Department improperly withheld important psychiatric records of a government witness who was used in a "significant" number of Guantanamo cases, a federal judge has concluded.
The government censored parts of the records, but enough has been made public that it's clear that the witness, a fellow detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts. The witness provided information in the government's case for detaining Aymen Saeed Batarfi, a Yemeni doctor who the government announced last week it would no longer seek to detain.
In a little-noticed ruling last week, Judge Emmet Sullivan found that the witness's testimony in other cases could be challenged as unreliable.
During a hearing last week, Sullivan castigated the government for not turning over the medical records and ordered department lawyers to explain why he shouldn't cite them for contempt of court.
"To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high . . . is fundamentally unjust, outrageous and will not be tolerated," Sullivan said, according to a transcript of the hearing.
"How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?"
The Obama administration has dropped the prosecution of Batarfi but continues to hold him while they attempt to find a country willing to take him. But Judge Sullivan isn't letting them off the hook:
He also criticized the government for deciding at the last minute to drop the case against Batarfi, who's been held at Guantanamo for seven years, and questioned its motives for doing so. He suggested that the government didn't genuinely intend to seek a country that would take Batarfi.
"I'm not going to let this case drag on, or any of the other cases on my calendar, indefinitely while the government embarks on what it calls its diplomatic process, because I have seen in the past that that diplomatic process can indeed span months and years, and I have some serious concerns as to whether it's yet and still another ploy . . . to continue with his deprivation of his fair day in court."
Sullivan threatened to have government attorneys return to court in 14 days to report on the progress of freeing Batarfi "and every 14 days thereafter."
"I'm not going to continue to tolerate indefinite delay on the part of the United States government," Sullivan said. "I mean this Guantanamo issue is a travesty . . . a horror story . . . and I'm not going to buy into an extended indefinite delay of this man's stay at Guantanamo."
Judge Sullivan has a right to be angry, and I'm glad he's unloading on government prosecutors with both barrels. It's long been established that the prosecutions at Guantanamo Bay are a travesty; the government holds all the cards and apparently decides if and when they will make defendants and their attorneys aware of exculpatory, or even relevant, evidence that may aid in their defense. But it makes no difference whether the person being prosecuted is a Yemeni doctor or a U.S. Senator; each man is deserving of a measure of justice, as Judge Sullivan recognizes. And government prosecutors should be made to pay for their incompetence and malfeasance.