This is the most recent example of prosecutorial misconduct to trouble the judge:
The latest episode involved the government’s assertion in the indictment and its opening statement that Mr. Allen’s company had provided some $188,000 in free labor costs to renovate the house. To bolster that assertion, prosecutors presented time sheets from workers at Mr. Allen’s company, Veco, for work done on the Stevens home. One of the workers, David Anderson, listed 280 hours of work on the renovation project for October 2000. But grand jury transcripts — given to defense lawyers recently because of a ruling by Judge Sullivan — showed that Mr. Anderson was not even in Alaska from late September through early November.
The judge asked a simple question:
“The government knew those records were not truthful records. All along the government knew that was a lie,” Judge Sullivan said angrily to Nicholas Marsh, a prosecutor. “Why did you do it? I want an answer.”
The response:
Facing the withering verbal flogging, Mr. Marsh answered, “We didn’t see the case that way,” and argued that the information about Mr. Anderson’s absence from Alaska was not material.
That didn't sit well with the judge.
“We’re talking about the U.S. government using documents it knows are false,” Judge Sullivan responded. “You have an obligation to see this man gets a fair trial.”
Here's another example of the prosecution's inability to play by the rules:
The other category of evidence that the jury will be told to ignore was the cost of a Land Rover that Mr. Allen gave to Mr. Stevens in trade for a 1964 ½ Mustang, worth about $20,000, and $5,000. In their cross-examination, defense lawyers labored to suggest that the Land Rover cost less than the $44,000 Mr. Allen said he had paid for it. But when prosecutors questioned Mr. Allen again, they produced for the first time a check he wrote the dealership for $44,300, making the defense lawyers look foolish.
Judge Sullivan said the prosecutors should have informed defense lawyers of the check. Had they done so, he said, they would not have made a misguided effort to challenge the price of the car.
This is why criminal discovery rules are a failed experiment. The government has to turn over material exculpatory evidence, but it decides for itself what is material and what is exculpatory. Parties to civil litigation have a variety of mechanisms to obtain evidence from an adverse party, but in criminal cases, the defense gets only what the prosecution decides to disclose. And as the Stevens case illustrates, prosecutors are sometimes loathe to follow the rules.
