Justice Department lawyers prosecuting a former CIA agent for leaking classified information allegedly lagged in turning over evidence that would help the intelligence operative with his defense, causing the judge to bar a pair of government witnesses from testifying.
Word of the previously undisclosed ruling comes in a document the Justice Department filed late Wednesday with a Virginia-based federal appeals court. The document sets out issues that will be raised in a government appeal. It says the U.S. Court of Appeals for the Fourth Circuit may be asked to consider "whether the district court erred in striking the testimony of two government witnesses for the late pre-trial disclosure of potential impeachment information about these witnesses."
The circumstances surrounding the delay in turning over material to the Sterling defense team aren't clear, since the lower court judge's ruling is still under wraps. Nor is it clear how significant the material is and how much it would have helped Sterling.
But the very fact that the Justice Department has chosen to appeal on that point indicates prosecutors there disagree with some element of the judge's decision.
Lapses by federal prosecutors in sharing evidence that could help defendants fight charges against them has been a nagging theme in recent years. The issue broke into public view in 2009, when Attorney General Eric Holder abandoned the prosecution of the late Alaska Republican Sen. Ted Stevens, citing problems with sharing information with the lawmaker's defense team. And that episode, which has been the subject of investigation by ethics investigators and a special prosecutor, resonated on Capitol Hill earlier this week, as Stevens's friend and longtime colleague Sen. Orrin Hatch (R-Utah) raised the failures in the case all over again, saying he had "never seen a greater injustice to a member of Congress."
Prosecutor William Welch, one of the people who supervised the prosecution of Ted Stevens, is now leading the case against the former CIA official, Jeffrey Sterling. Sterling has been indicted on 10 felony counts for allegedly sharing information with New York Times reporter James Risen, which Risen used in a book about the CIA during the Bush administration. The case had been scheduled for trial last month in Alexandria, Va., but the Justice Department stopped that process in its tracks by appealing several unfavorable rulings by the lower court judge, including the alleged late turn-over of materials to Sterling's defense team.
Barry Pollack, a lawyer for Sterling, told NPR "I can't comment until the basis for the judge's ruling is made public."
The Justice Department had no immediate comment.
The Sterling case has been a focus of intense attention as part of the Obama administration's unprecedented crackdown on leaks of defense information, as well as the precedent it could set in government efforts to compel reporters to testify about their alleged sources.
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