Prosecutors admit error STEVENS CASE: "whistle-blower status" causes turmoil. By LISA DEMER

Published on January 15, 2009

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Prosecutors admit error STEVENS CASE: “whistle-blower status” causes turmoil. By LISA DEMER

Anchorage Daily News


On Wednesday, federal prosecutors revealed that Anchorage FBI agent Chad Joy was the person alleging misconduct in the Ted Stevens corruption investigation and also said he had been “denied whistle-blower status.”


On Thursday, they told the judge they were wrong on the second point.

A document filed in court late Thursday reveals the latest misstep for the prosecution in the case of former U.S. Sen. Stevens, convicted last year of seven felonies for failing to reveal gifts on federal financial disclosure forms.

Joy has accused another agent, Mary Beth Kepner, of becoming too close to witnesses, accepting “things of value,” and compromising the investigation by revealing too much information to outsiders, including her husband.

He also accused Nicholas Marsh, a federal trial attorney with the Public Integrity Section, of trying to keep critical evidence and witnesses from the Stevens defense. For example, Joy wrote that Marsh came up with a scheme to send a witness who was ailing and in Washington, D.C., for the trial back to Alaska without telling the defense or the judge, even though the defense had subpoenaed the same witness.

Joy’s complaint is quickly becoming a central element of efforts by Stevens for a new trial.

In December, prosecutors alerted U.S. District Judge Emmet Sullivan to Joy’s complaint but wanted it withheld from Stevens and his lawyers, as well as the public. The judge ordered that it be provided to the Stevens team in its entirety but ruled that most names and other identifying details should be blacked out from the copy made public.

At Wednesday’s hearing, the judge was angered when prosecutors told him that Joy didn’t qualify for whistle-blower status. Had he known that earlier, he would have handled the complaint differently last year, he said. He ordered a new version released with most of the deleted information restored.

“I want to know what your office knew and when,” Sullivan demanded at the hearing. He ordered that Attorney General Michael Mukasey sign a declaration under oath concerning who knew what when about Joy’s whistle-blower status.

But on Thursday, prosecutors admitted they got that part wrong and are asking that the judge back off his order for Mukasey to get involved.

“Government counsel was mistaken; they had misconstrued a letter sent to Agent Joy by OPR,” Patty Merkamp Stemler, chief of the U.S. Justice Department’s criminal appeals section, wrote. “We apologize for this error.”

“OPR” refers to the Justice Department’s Office of Professional Responsibility. In the Dec. 4 letter to Joy, the office said it would investigate his complaint but also said it didn’t have jurisdiction to investigate whether he was “entitled to relief as an aggrieved whistle-blower.”

That authority only kicks in when an employee alleges reprisal, and Joy hadn’t done that, H. Marshall Jarrett, counsel for the office, wrote in the letter. If he is subjected to or threatened with reprisal, the office would reconsider, Jarrett wrote.

An expert in whistle-blower law interviewed later Thursday said that there is no such thing as “whistle-blower status.”

Someone who files such a complaint is by definition a whistle-blower, said Michael Kohn, general counsel for the National Whistleblowers Center, in Washington, D.C. The protections don’t kick in unless the person suffers retaliation on the job, such as a bad evaluation, demotion or firing, Kohn said.

Whistle-blowers in general tend to get lumped in with the subgroup who are retaliated against because that’s what so often happens, Kohn said

“A common misconception is that whistle-blowers get some sort of status and that they can’t be discriminated against or harmed in their workplace when, in fact, it’s just the opposite,” Kohn said.

“Once you are identified as a whistle-blower, you essentially get a target put on your back because the protections are so anemic,” he said.

Even if a fired whistle-blower wins a case, the most the employee gets is back pay and the job back — there are no punitive damages, he said.

He hadn’t been following the whistle-blower complaint in the Stevens case, but he said that around the country the FBI has treated whistle-blowers poorly. In fact, FBI agents or officials who retaliate against whistle-blowers tend to be promoted up the ranks, he said. The nonprofit center has represented hundreds of whistle-blowers over the years, including some FBI agents, he said.

Joy had requested “whistle-blower protection status.”

“I don’t want to be punished for coming forward,” Joy wrote in the complaint. He also said, “I hoped my concerns could be looked into without my name being known as the one who started the mess, to avoid any possible retaliation.”

There are no specific confidentiality protections for whistle-blowers, though complaints aren’t automatically public, either, Kohn said.

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