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On the prosecution of Senator Stevens

Joshua Waxman is a prominent Washington attorney and friend of the late Nicholas A. Marsh, the federal prosecutor who had been involved in the botched prosecution of Senator Ted Stevens. Marsh committed suicide last year during the separate Department of Justice and court-ordered probes of misconduct in the prosecution of Senator Stevens. My recent post on the New York Times story occasioned by the completion of the still-secret report on the court-ordered probe of prosecutorial misconduct in the case prompted this message from Mr. Waxman:

There are three main points of which I think readers should be aware. First, I think it is important for people to understand that the Stevens case was not a case of partisanship run amok – it was after all the Bush Justice Department that indicted Stevens and the Obama Justice Department that dismissed the indictment.

Nor was it a situation where prosecutors unfairly targeted an innocent man. Even if one were to exclude all evidence concerning Bill Allen and VECO, the other evidence presented in the case overwhelmingly supports Senator Stevens’ guilt as to the charges against him, which alleged that he failed to report on his Senate disclosure forms some gifts or liabilities greater than $260, as required by law. Indeed, as I set forth in my letter published in the Summer 2011 issue of the ABA Litigation Journal, among the most damning evidence in the case relates to a $2695 vibrating Shiatsu massage chair that Stevens received from his friend, Robert Persons, but he never reported on his disclosure forms.

Stevens took the stand during his trial and, in implausible testimony, claimed that the chair was not a gift, even though it was still at his home seven years later. Stevens testified that he never used the chair and had no idea how it had gotten into his house, but emails he sent stating his wife and daughter had a hard time getting him out of the chair after he kept falling asleep in it, and directing his staff where to place the chair in his home directly contradicted his testimony.

The subsequent investigations of the prosecutors have ONLY related to exculpatory information concerning renovations to Stevens’ home performed at no cost to Stevens by VECO and Bill Allen, and there is no assertion that any of this other evidence, such as the massage chair, is in any way tainted by any allegations of misconduct. Regardless of what mistakes were made during the prosecution of the case, the evidence was overwhelming as to Stevens’ guilt concerning the crimes for which he was charged.

Finally, as for the report concerning the conduct of the prosecutors, I may have more to say about that when the time comes, but for now I would just caution everyone to consider the circumstances under which the report and these investigations were conducted. One of the prosecutors, Nicholas Marsh, committed suicide during the pendency of the investigations and since Nick is therefore not available to set the record straight, it may be important to critically examine the actual underlying evidence to ensure that proper conclusions were made, not simply decisions made out of convenience based on circumstances that developed.

I understand that Nick endeavored to properly fulfill his obligations and took his ethical duties very seriously. In fact, Nick once insisted that he send $13 to someone who sent him a mug as a gift, because he wanted to ensure that he didn’t violate any of the government’s ethics rules. I would be happy to share more information and comments about the report if and when it is released publicly.

I think Mr. Waxman for his message and his permission to share it with our readers.

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