Pubdate: Tue, 26 Nov 2002 Source: Boston Globe (MA) Copyright: 2002 Globe Newspaper Company Contact: http://www.boston.com/globe/ Details: http://www.mapinc.org/media/52 Author: Thanassis Cambanis, Globe Staff US ATTORNEY RELENTS IN DISPUTE WITH JUDGE US Attorney Relents In Dispute With Judge In Court, Sullivan Gets Stern Reprimand A cease-fire was called yesterday in the ongoing feud between US Attorney Michael Sullivan and federal Judge Mark L. Wolf when Sullivan backed down and submitted to a public tongue-lashing from the judge. But Sullivan and Wolf will continue to wrangle over whether government prosecutors are obeying their legal requirement to give evidence to defense attorneys as the Massachusetts federal district drafts new rules on their obligations. "It's not just my problem. It's your problem, and you're going to take care of it," Wolf said yesterday, after describing, once again, the cases in which he'd been forced to declare mistrials or dismiss charges against criminal defendants because prosecutors handed over exculpatory evidence at the last minute. Sullivan clearly chafed at being ordered by Wolf to explain the actions of his prosecutors, again questioning the judge's power to demand his presence in the courtroom. In the last decade, Wolf is the only federal judge in Boston to order the US attorney to appear before him; he has done so three times. "Honestly and candidly, if I had been in the court when the order was received, regardless of my opinion of the court's authority to issue the order, I would have honored the order," Sullivan said yesterday. "I have never once disregarded an order of the court." "You express doubts about my authority to order the US attorney to appear," Wolf retorted. "I myself have no such doubt." Last Wednesday, Sullivan was at the dentist in Holbrook at 9 a.m. when he learned that Wolf had ordered his presence an hour later in US District Court in Boston. "It was impossible for me to be here at 10 o'clock," Sullivan said. "I meant no disrespect." Wolf said he had considered holding Sullivan in criminal contempt when he failed to appear. In several written affidavits and in past interviews with the Globe, Sullivan has insisted that prosecutors very rarely neglect to turn over evidence to defense attorneys, and denied that there is a pattern of misconduct in his office. But during his brief, five-minute court appearance yesterday, he confined his comments to his failure to appear last week. Sullivan showed up yesterday at 10 a.m. sharp for a stern 45-minute lecture on what Wolf called a disturbing and persistent pattern of prosecutors failing to turn over evidence. Wolf, a former federal prosecutor himself, has vociferously criticized the US attorney's office for breaking the rules about giving evidence to defense lawyers in a timely manner, as they are required to do. Within the last two years -- a period which includes the final year in office of Sullivan's predecessor, Donald K. Stern -- there have been at least 19 allegations of prosecutors not turning over evidence in a timely fashion. While the US attorney's office handles 400 criminal cases a year, only a small percentage -- 19 last year -- go to trial. The rest are resolved by the defendant pleading guilty, although prosecutors are obligated to disclose evidence that could help the defense in all cases. Most of the complaints of withheld exculpatory evidence, however, came in cases that went to trial. Of the 19 allegations of withheld evidence, 12 involved cases which were tried. And in at least half of them, judges found that evidence had been improperly withheld or ordered prosecutors to produce further evidence for the defense. Just this month, Wolf declared a mistrial in a criminal case after prosecutors delivered exculpatory evidence at the last minute. US District Judge Joseph L. Tauro postponed another criminal trial when prosecutors presented evidence late. And in April, Wolf dismissed a case against an accused marijuana dealer after prosecutors repeatedly failed to disclose evidence. At that time, Wolf demanded that Sullivan detail measures he was taking to properly train prosecutors and federal agents in the rules on disclosure of exculpatory evidence to defense attorneys. The defense attorney in that case, John McBride, said he was shocked that irregularities had persisted even after the well-publicized dispute in April. "This is a systemic pattern of failing to disclose material exculpatory evidence," he said. - --- MAP posted-by: Jay Bergstrom