The persecution of Ted Stevens

I don’t think much attention has been paid to the story of the scathing report that has been submitted to the court on the government’s prosecution of the late Republican Senator from Alaska, Ted Stevens. The jury returned a judgment of conviction on multiple felony counts of failing to report gifts 8 days before the 2008 elections. Senator Stevens narrowly lost his bid for reelection to Democrat Mark Begich because of the convictions.

The Wikipedia entry on Senator Stevens helps me to recall what happened next:

In February 2009, FBI agent Chad Joy filed a whistleblower affidavit, alleging that prosecutors and FBI agents conspired to withhold and conceal evidence that could have resulted in a verdict of “not guilty.” In his affidavit, Joy alleged that prosecutors intentionally sent a key witness back to Alaska after the witness performed poorly during a mock cross examination. The witness, Rocky Williams, later notified the defense attorneys that his testimony would undercut the prosecution’s claim that his company had spent its own money renovating Sen. Stevens’s house. Joy further alleged that the prosecutors intentionally withheld Brady [i.e., exculpatory] material including redacted prior statements of a witness, and a memo from Bill Allen stating that Sen. Stevens probably would have paid for the goods and services if asked. Joy further alleged that a female FBI agent had an inappropriate relationship with Allen, who also gave gifts to FBI agents and helped one agent’s relative get a job.

As a result of Joy’s affidavit and claims by the defense that prosecutorial misconduct caused an unfair trial, Judge Sullivan ordered a hearing to be held on February 13, 2009, to determine whether a new trial should be ordered. At the February 13 hearing the judge held the prosecutors in contempt for failing to deliver documents to Stevens’s legal counsel. Judge Sullivan called this conduct “outrageous.”

The following April, Attorney General Holder ordered the Department of Justice to ask the court to set aside the verdict and dismiss the indictment based on the government’s misconduct. The motion was granted by the trial judge with the effect that Senator Stevens’s convictions were vacated.

The trial judge commissioned his own investigation into the government misconduct in the prosecution of Senator Stevens. Now the investigator appointed by the judge has filed his report with the court, although the report is not to be made public until next January. Charlie Savage’s New York Times story on the investigator’s report bears reading in its entirety. Here it is:

A court-appointed investigator has found that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial, a federal judge disclosed on Monday.

But the 500-page report by the investigator, Henry F. Schuelke, recommends that none of the Justice Department officials involved in the case be prosecuted for criminal contempt of court because the judge who presided over the trial, Emmet G. Sullivan, of Federal District Court in Washington, did not issue an order specifically instructing prosecutors to obey the law by turning over any exculpatory evidence.

In an order on Monday, Judge Sullivan said he intended to make the full report public as early as January, after government and defense lawyers have had a chance to review it and make any arguments for keeping parts of it secret. But he also offered a preview of what Mr. Schuelke says he found after reviewing 150,000 pages of documents and interviewing dozens of witnesses.

The judge quoted Mr. Schuelke as saying that the investigation and prosecution of Mr. Stevens, an Alaska Republican, had been “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

Mr. Schuelke also “found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed — at least to the court and to the public — but for their exhaustive investigation.”

The case against Mr. Stevens centered on accusations that he lied on his disclosure forms by failing to report a gift of home remodeling from an oil-field services company. Mr. Stevens maintained that he intended to pay for the work. Shortly after he was convicted in 2008, Mr. Stevens narrowly lost his re-election bid; he was killed last year in a plane crash.

In 2009, a Federal Bureau of Investigation agent filed an affidavit alleging that prosecutors had failed to turn over potentially exculpatory evidence to the defense, as required by law, and Attorney General Eric H. Holder Jr., then new to the job, made an extraordinary request to set aside Mr. Stevens’s conviction.

Judge Sullivan did so, and appointed Mr. Schuelke to investigate what had happened and whether it amounted to criminal contempt of court. The Office of Professional Responsibility in the Justice Department also opened an internal investigation.

While Mr. Schuelke did not recommend prosecuting the prosecutors for criminal contempt, he offered “no opinion,” the judge noted, as to whether “one or more of the subject attorneys” might instead be charged with obstruction of justice.

After the Stevens case melted down, members of the government’s trial team and the head of the public integrity section of the Justice Department, William Welch, came under intense scrutiny.

Among other things, both Mr. Welch and his deputy chief, Brenda Morris — who had led the trial team — were reassigned, along with two other lawyers from the section. One of the lawyers, Nicholas A. Marsh, committed suicide last year. The other, Edward Sullivan, who played a supporting role in the case, was reassigned for a period but rejoined the section as a prosecutor this year after the Office of Professional Responsibility “fully exonerated” him in its own report, according to his lawyer, Brian Heberlig. That report has not yet been made public.

A spokeswoman for the Criminal Division of the Justice Department, which includes the public integrity section, said the government was studying Mr. Schuelke’s report and had no immediate comment about its contents.

The story so far leaves a number of threads hanging. Savage only touches on the political context of Stevens’s prosecution. Beyond the question of culpability and punishment of the attorneys involved lies the obvious question of motive. What if anything beside the overwhelming desire to win might have induced government attorneys to pursue the case against Senator Stevens in this fashion? It is a question to which we will have to return if and when the report is made public next year.