CDR: Lee Free - Judge Apologizes For Government's Conduct

[David Lesher]

JUDGE PARKER Dr. Lee, you have pled guilty to a serious crime. It's
a felony offense. For that you deserved to be punished. In my
opinion, you have been punished harshly, both by the severe
conditions of pretrial confinement and by the fact that you have
lost valuable rights as a citizen.

Under the laws of our country, a person charged in federal court
with commission of a crime normally is entitled to be released from
jail until that person is tried and convicted. Congress expressed
in the Bail Reform Act its distinct preference for pretrial release
from jail and prescribed that release on conditions be denied to
a person charged with a crime only in exceptional circumstances.

The executive branch of the United States government has until
today actually, or just recently, vigorously opposed your release
from jail, even under what I had previously described as draconian
conditions of release.

During December 1999, the then-United States attorney, who has
since resigned, and his assistants presented me, during the
three-day hearing between Christmas and New Year's Day, with
information that was so extreme it convinced me that releasing you,
even under the most stringent of conditions, would be a danger
to the safety of this nation. The then-United States attorney
personally argued vehemently against your release and ultimately
persuaded me not to release you.

In my opinion and order that was entered Dec. 30, 1999, I stated
the following: "With a great deal of concern about the conditions
under which Dr. Lee is presently being held in custody, which
is in solitary confinement all but one hour of the week, when
he is permitted to visited his family, the court finds, based on
the record before it, that the government has shown by clear and
convincing evidence that there is no combination of conditions
of release that would reasonably assure the safety of any other
person and the community or the nation."

After stating that in the opinion, I made this request in the
opinion right at the end: "Although the court concludes that
Dr. Lee must remain in custody, the court urges the government
attorneys to explore ways to lessen the severe restrictions
currently imposed upon Dr. Lee while preserving the security of
sensitive information."

I was very disappointed that my request was not promptly heeded
by the government attorneys.

After December, your lawyers developed information that was
not available to you or them during December.  And I ordered
the executive branch of the government to provide additional
information that I reviewed, a lot of which you and your attorneys
have not seen.

With more complete, balanced information before me, I felt
the picture had changed significantly from that painted by the
government during the December hearing. Hence, after the August
hearing, I ordered your release despite the continued argument
by the executive branch, through its government attorneys, that
your release still presented an unacceptable extreme danger.

I find it most perplexing, although appropriate, that the executive
branch today has suddenly agreed to your release without any
significant conditions or restrictions whatsoever on your
activities. I note that this has occurred shortly before the
executive branch was to have produced, for my review in camera,
a large volume of information that I previously ordered it
to produce.

>From the beginning, the focus of this case was on your motive or
intent in taking the information from the secure computers and
eventually downloading it on to tapes. There was never really
any dispute about your having done that, only about why you did it.

What I believe remains unanswered is the question: What was the
government's motive in insisting on your being jailed pretrial
under extraordinarily onerous conditions of confinement until
today, when the executive branch agrees that you may be set free
essentially unrestricted? This makes no sense to me.

A corollary question I guess is: Why were you charged with the
many Atomic Energy Act counts for which the penalty is life
imprisonment, all of which the executive branch has now moved to
dismiss and which I just dismissed?

During the proceedings in this case, I was told two things:
first, the decision to prosecute you was made at the highest
levels of the executive branch of the United States Government
in Washington, D.C.

With respect to that, I quote from a transcript of the Aug. 15,
2000, hearing, where I asked this question.  This was asked
of Dr. Lee's lawyers: "Who do you contend made the decision
to prosecute?"

Mr. Holscher responded: "We know that the decision was made at
the highest levels in Washington. We know that there was a meeting
at the White House the Saturday before the indictment, which was
attended by the heads of a number of agencies. I believe the No. 2
and No. 3 persons in the Department of Justice were present. I
don't know if the attorney general herself was present. It was
actually held at the White House rather than the Department
of Justice, which is, in our view, unusual circumstances for
a meeting."

That statement by Mr. Holscher was not challenged.

The second thing that I was told was that the decision to prosecute
you on the 39 Atomic Energy Act counts, each of which had life
imprisonment as a penalty, was made personally by the president's
attorney general.

In that respect, I will quote one of the assistant U.S. attorneys,
a very fine attorney in this case this was also at the Aug. 15
hearing. This is talking about materials that I ordered to be
produced in connection with Dr. Lee's motion relating to selective
prosecution. The first category of materials involved the January
2000 report by the Department of Energy task force on racial
profiling: "How would that in any way disclose prosecutorial
strategy?"

Miss Fashing responded: "That I think falls more into the category
of being burdensome on the government. I mean if the government if
we step back for just a second I mean the prosecution decision and
the investigation in this case, the investigation was conducted
by the F.B.I., referred to the United States attorney's office,
and then the United States attorney's office, in conjunction
with well, actually, the attorney general, Janet Reno, made the
ultimate decision on the Atomic Energy Act counts."

Dr. Lee, you're a citizen of the United States and so am I, but
there is a difference between us. You had to study the Constitution
of the United States to become a citizen. Most of us are citizens
by reason of the simple serendipitous fact of our birth here. So
what I am now about to explain to you, you probably already know
from having studied it, but I will explain it anyway.

Under the Constitution of the United States, there are three
branches of government. There is the executive branch, of which
the president of the United States is the head. Next to him is the
vice president of the United States. The president operates the
executive branch with his cabinet, which is composed of secretaries
or heads of the different departments of the executive branch. The
vice president participates in cabinet meetings.

In this prosecution, the more important members of the president's
cabinet were the attorney general and the secretary of the
Department of Energy, both of whom were appointed to their
positions by the president.

The attorney general is the head of the United States Department
of Justice, which despite its title, is a part of the executive
branch, not a part of the judicial branch of our government.

The United States Marshal Service, which was charged with
overseeing your pretrial detention, also is a part of the executive
branch, not the judicial branch.

The executive branch has enormous power, the abuse of which can
be devastating to our citizens.

The second branch of our national government is the legislative
branch, our Congress. Congress promulgated the laws under which
you were prosecuted, the criminal statutes. And it also promulgated
the Bail Reform Act, under which in hindsight you should not have
been held in custody.

The judicial branch of government, of which I am a member, is
called the third branch of government because it's described in
Article III of our Constitution.

Judges must interpret the laws and must preside over criminal
prosecutions brought by the executive branch.  Since I am not a
member of the executive branch, I cannot speak on behalf of the
president of the United States, the vice president of the United
States, their attorney general, their secretary of the Department
of Energy or their former United States attorney in this district,
who vigorously insisted that you had to be kept in jail under
extreme restrictions because your release pretrial would pose a
grave threat to our nation's security.

I want everyone to know that I agree, based on the information
that so far has been made available to me, that you, Dr. Lee,
faced some risk of conviction by a jury if you were to have
proceeded to trial. Because of that, I decided to accept the
agreement you made with the United States executive branch under
Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure.

Further, I feel that the 278 days of confinement for your offense
is not unjust; however, I believe you were terribly wronged by
being held in custody pretrial in the Santa Fe County Detention
Center under demeaning, unnecessarily punitive conditions. I am
truly sorry that I was led by our executive branch of government
to order your detention last December.

Dr. Lee, I tell you with great sadness that I feel I was led astray
last December by the executive branch of our government through
its Department of Justice, by its Federal Bureau of Investigation
and by its United States attorney for the district of New Mexico,
who held the office at that time.

I am sad for you and your family because of the way in which you
were kept in custody while you were presumed under the law to be
innocent of the charges the executive branch brought against you.

I am sad that I was induced in December to order your detention,
since by the terms of the plea agreement that frees you today
without conditions, it becomes clear that the executive branch
now concedes, or should concede, that it was not necessary to
confine you last December or at any time before your trial.

I am sad because the resolution of this case drug on unnecessarily
long. Before the executive branch obtained your indictment on
the 59 charges last December, your attorney, Mr. Holscher, made
a written offer to the office of the United States attorney to
have you explain the missing tapes under polygraph examination.

I'll read from that letter of Dec. 10, 1999. I quote from that
letter:

"Dear United States Attorney Kelly and First Assistant Gorence:
I write to accept Mr. Kelly's request that we provide them with
additional credible and verifiable information which will prove
that Dr. Lee is innocent. On the afternoon of Wednesday, Dec. 8,
Mr. Kelly informed me that it was very likely that Dr. Lee will
be indicted within the next three to four business days. In our
phone conversation, Mr. Kelly told me that the only way that we
could prevent this indictment would be to provide a credible and
verifiable explanation of what he described as missing tapes.

"We will immediately provide this credible and verifiable
explanation. Specifically we are prepared to make Dr. Lee
immediately available to a mutually agreeable polygraph examiner
to verify our repeated written representations that at no time
did he mishandle those tapes in question and to confirm that he
did not provide the tapes to any third party.

"As a sign of our good faith, we will agree to submit Dr. Lee to
the type of polygraph examination procedure that has recently been
instituted at the Los Alamos Laboratory to question scientists. It
is our understanding that the government has reaffirmed that this
new polygraph procedure is the best and most accurate way to verify
that scientists are properly handling classified information."

At the inception of the December hearing, I asked the parties
to pursue that offer made by Mr. Holscher on behalf of Dr. Lee,
but that was to no avail.

MR. STAMBOULIDIS Your Honor, most respectfully, I take issue with
that. There has been a full record of letters that were sent back
and forth to you, and Mr. Holscher withdrew that offer.

JUDGE PARKER Nothing came of it, and I was saddened by the fact
that nothing came of it. I did read the letters that were sent
and exchanged. I think I commented one time that I think both
sides prepared their letters primarily for use by the media and
not by me. Notwithstanding that, I thought my request was not
taken seriously into consideration.

Let me turn for the moment to something else. Although I have
indicated that I am sorry that I was led by the executive branch to
order your detention last December, I want to make a clarification
here. In fairness, I must note that virtually all of the lawyers
who work for the Department of Justice are honest, honorable,
dedicated people, who exemplify the best of those who represent
our federal government.

Your attorney, Mr. Holscher, formerly was an assistant United
States attorney. The new United States attorney for the district
of New Mexico, Mr. Norman Bay, and the many assistant United States
attorneys here in New Mexico and I include in this Mr. Stamboulidis
and Mr. Liebman, who are present here today have toiled long
hours on this case in opposition to you. They are all outstanding
members of the bar, and I have the highest regard for all of them.

It is only the top decision makers in the executive branch,
especially the Department of Justice and the Department of Energy
and locally, during December, who have caused embarrassment by
the way this case began and was handled. They did not embarrass
me alone. They have embarrassed our entire nation and each of us
who is a citizen of it.

I might say that I am also sad and troubled because I do not
know the real reasons why the executive branch has done all of
this. We will not learn why because the plea agreement shields
the executive branch from disclosing a lot of information that
it was under order to produce that might have supplied the answer.

Although, as I indicated, I have no authority to speak on behalf
of the executive branch, the president, the vice president, the
attorney general, or the secretary of the Department of Energy,
as a member of the third branch of the United States Government,
the judiciary, the United States courts, I sincerely apologize
to you, Dr. Lee, for the unfair manner you were held in custody
by the executive branch.



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