Jeffrey Sterling, the former CIA officer accused of leaking information on a dodgy CIA operation to deal Iran flawed nuclear blueprints, has been waiting for 3 years for his day in court. Since October 2011, the case has been on hold for various appeals.
Most of the coverage on that delay has focused on reporter Jim Risen’s unsuccessful efforts to quash a subpoena requiring him to testify.
But the really dramatic hold up came when — days before his trial was supposed to start in 2011 — Sterling learned derogatory information about two key witnesses against him. The judge in the case, Leonie Brinkema, was so cranky about the way the government improperly dropped that information on Sterling after her deadline and just before the trial, she ruled the government would not be able to call those two key witnesses. In July 2013, the Fourth Circuit reversed that decision on appeal.
Sterling’s complaint 3 years ago about this information was that he didn’t have sufficient time to investigate the circumstances of the derogatory information on the CIA witnesses against him before his trial was scheduled to start.
So you’d think — to make up for their earlier error, which had gotten them scoldings from both Brinkema and the Fourth Circuit — the government would provide that information to Sterling in timely fashion.
You’d be wrong.
In a filing last month, Sterling revealed that his lawyers started asking for this information in January. Yet the government still hasn’t given Sterling anything more than a summary of what these key witnesses did.
Three years have passed since the government first notified Mr. Sterling and the Court of the [derogatory, called Giglio] material it possessed. To date, Mr. Sterling has not received a single document. Instead, he has only two letters from the government summarizing the Giglio.
The filing provides details about why the evidence will be so important for his case: because he would use it to show the witnesses against him — including his former supervisor — have mishandled classified information themselves, one of the things Sterling is accused of!
[T]he government has stated that it will put forth evidence under Fed. R. Evid. 404(b) that Mr. Sterling has mishandled classified documents in the past. Plainly, the probative value of any evidence that Mr. Sterling did so diminishes rapidly with the concurrent evidence that the government’s own witnesses, including his superior, did precisely the same.
Indeed, in a much earlier filing, Sterling argued that the conduct of at least one person (Sterling’s original filing on this is sealed, so it is unclear whether this person would be called as a witness) was actually worse than what Sterling is accused of.
Mr. Sterling showed that the conduct of Person A was more egregious, Person A was not prosecuted, Mr. Sterling had sued the CIA for discrimination, and Mr. Sterling was prosecuted.
The government, however, maintains that the evidence that key witnesses against Sterling have mishandled classified information isn’t relevant to his case.
[T]he information it disclosed is not admissible impeachment under the Federal Rules of Evidence, and the underlying source documents are therefore not discoverable.
It plans to fight Sterling’s demand they turn over the CIA files on these witnesses. Judge Brinkema has scheduled a classified hearing on November 20, roughly 50 days before the scheduled start of the trial, to hear their argument.
Of course, in addition to trying to prevent Sterling from obtaining enough information to discredit the witnesses against him, the government is trying to hide the degree to which at least several CIA officers tied to this case have detrimental reports involving classified information in their personnel record. If so many people at the CIA mishandle classified information, then why is Sterling on trial for doing so?