(CN) - The U.S. government deserved to lose four expert witnesses as a sanction for belatedly disclosing evidence that may favor the former CIA officer accused of leaking classified secrets to a New York Times reporter, a brief to the 4th Circuit states.
Jeffrey Sterling faces charges of leaking national defense information to New York Times Reporter James Risen, who used the information in Chapter 9 of his 2006 book "State of War."
After numerous postponements, Sterling's trial was slated for Oct. 17, 2011, but the government postponed it to appeal several issues to the 4th Circuit.
Sterling's heavily redacted brief urges the federal appeals court to uphold U.S. District Judge Leonie Brinkema's last-minute decision to strike several of the government's expert witnesses as a sanction.
In the final two days before trial, the government disclosed to the defense certain information with respect to six of its trial witnesses. Claiming that the CIA had not permitted it to retain a copy of security files for the pertinent witnesses, the government said it therefore could not produce a copy to the defense.
Based on information that was in those undisclosed CIA files, the government filed a last-minute ex parte order to prevent the defense from using potential witness-impeachment material.
Sterling objected to the late disclosures and the government's failure to inform him of the ex parte motion.
Brinkema slammed the government at an Oct. 14 hearing, Sterling said. "'There's no reason why this motion would not have been provided to defense counsel, because you are asking the court to restrict the defense counsel's ability to raise certain issues," Brinkema said, according to the brief. "That's not the proper process, not a motion like this, not on the eve of trial.'"
Sterling claims furthermore that "the court specifically expressed its agreement with the defense argument: 'The government is going to ask the jury to draw an inference of disclosure of national defense information against Mr. Sterling based on his procedures for handling information that does not relate to any classified program that is not national defense information, and yet they want to call somebody as one of their most crucial witnesses who's ... [redacted] ..., and we have no opportunity to investigate any of that.'"
Rather than postpone trial again, Brinkema struck the four witnesses who were the subject of the late government disclosures.
"The Supreme Court has again recently reiterated the fundamental principle of constitutional law that the government must disclose to the defense information that is favorable to the defense, including material that impeaches a government witness," according to the brief authored by Sterling attorney Edward MacMahon Jr. of Middleburg, Va.
Furthermore, "the exculpatory or impeachment material must be disclosed sufficiently in advance of trial for the defendant to be able to make meaningful use of the information," MacMahon added.
Given the late date of the government's disclosures, it "plainly did not give Mr. Sterling the material enough in advance of trial that he could make effective use of it," the brief states. "As the court with comprehensive knowledge of the facts and the history of the case, the trial judge ruled that suppressing the testimony of the two witnesses to whom the most significant belatedly disclosed material related was most appropriate."
Sterling's brief does not address the issue of reporter's privilege, which Risen is fighting with the government. He only noted "the absurdity of moving in limine to admit the testimony of a witness when the government could not proffer what the testimony of the witness would be."
Since the government has never spoken to Risen, "the court should bear in mind that the government is raising this issue in a complete factual vacuum," Sterling said.
Reporter's privilege is nevertheless the most prominent issue in the government's 57-page reply brief, filed Tuesday.
Risen and his amici "argue that even if there is no 'reporter's privilege' in grand jury proceedings, there should be one in criminal trials," Justice Department attorney Robert Parker wrote. "There is no principled reason for such a distinction."
"Indeed, the government's interest in a reporter's testimony is arguably stronger at trial because the government's burden of proof is higher and the stakes (loss of liberty or even life) are greater."
Citing the Supreme Court's decision in Branzburg v. Hayes, which both parties cited heavily, the government said: "Branzburg's holding is clear: when a reporter 'undertakes not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question.' Risen and his amici disagree with the wisdom of this ruling, but it is the law."
"Sterling's criticism of the government's discovery priorities, made entirely in hindsight, is beside the point," the brief states. "The District Court found no evidence of bad faith in the government's disclosure, and there is simply no reason why Sterling's receipt of this information several days before trial merits the severest sanction of evidence suppression."
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