The Stephens Certification

The Stephens certification is also referred to as an affidavit and a declaration in various documents in this case. Louis F. Stephens was Paul Bergrin's private investigator in this case and the certification included defense witness statements and referred to each witness as DW-1, DW-2, DW-3 etc... and not by actual names. Of course the reason for listing the defense witnesses this way was a real fear of government retaliation against the witnesses.

In my last post, I stated that the Stephens certification was not filed in camera by the defense. I must correct that statement as it was indeed filed in camera. The certification was filed by Mr. Lustberg, the defense stand-by counsel; however, Paul Bergrin did not intend for it to be filed in camera.

Think about it for a minute. Why would the defense want this certification with witness statements concerning outrageous government misconduct filed under seal?

It will eventually be unsealed in the appeals. By that time, the leverage with it is lost. I honestly don't know what legal basis exists for it to have been sealed in the first place. I could see if it was filed ex parte for the court's eyes only for purposes of ruling on the motion so as not to give away the defense work product to the government, but the affidavit was given to the government the day it was filed.

The sealing didn't protect the defense; it hurt the defense. The result was disclosure of the defense's work product while keeping the government from being exposed for conduct that was not just outrageous and unethical but illegal and which mirrored much of the conduct the government accused Paul Bergrin of. The allegations in the affidavit offered the court a preview of what the defense's witnesses would have offered in a hearing.

I am surprised that none of the journalists following the case and trial raised hell about why the affidavit was allowed to be kept under seal. Isn't the public entitled to know the truth? Isn't the public entitled to have an opinion as to whether Judge Cavanaugh did the right thing when he ruled the way he did, denying the defense an opportunity to bring witnesses in front of the court about whether the prosecution was tainted? Where is the transparency?

Scroll to page 11 of the opinion and see the heading entitled, B. Bergrin's Motion to Convene a Hearing on Prosecutorial Misconduct:

Bergrin Order and Opinion 19 September 2012

For a better understanding of the specific content of the Stephens certification, scroll to page 31 and read through page 37 under the heading, III. The court should hold a hearing on the government's misconduct in this matter to determine whether the charges should be dismissed or other sanctions imposed:

Bergrin Omnibus Motion Defense 21 August 2012

In so far as Mr. Lustberg filing this certification in camera is concerned, I must imagine that there was prior discussion with prosecutors and this was their request or demand. At any rate, there is no reason for the certification to be sealed today.

The court should have granted a hearing to see if the government engages in its own acts of witness tampering, encouraging - not just suborning - perjury, and obstructing justice. Instead, when it was presented with very serious allegations rising to the level of criminal acts, the court closed its eyes. In doing so, the court shirked its duty to ensure that a fraud was not perpetuated on the court and on the jury. I guess justice really is blind. Willfully blind in this case.