Wednesday, October 8, 2008

Cut Up, But Still Punching

Live from the Ted Stevens Trial, Day 12

Washington, D.C.--

The judge horsewhipped the prosecution late in the afternoon on a day that had gone so well.

For most of the day, the government introduced scores of notes and e-mails showing Ted Stevens’ close involvement with the renovations to his Girdwood home that are at the center of this case.

The detailed presentation likely bored close observers of the case who already had heard it from pre-trial skirmishing, but plugged-in lawyers and well-informed reporters were not the intended audience. The jury was probably impressed, given that all those communications—many extensive—tend to refute the Senator’s contention that he was too busy as Chairman of the Appropriations Committee or too far away to stay in the loop about the extensive remodeling.

Some of those details may stick with the jury, too. Concerned about the threat of Y2K, Stevens announced in 1999 that he gotten Allen to arrange for the installation of a back-up generator—and the Senator never paid for it.

Stevens’ designated caretaker Bob Persons told the Senator about the possibility that Bill Allen would have a Jacuzzi put into the home. Allen did so, and Stevens never paid for it.

After much argument, the government also got admitted evidence of Stevens’ involvement in a Florida condominium deal.

The evidence this morning on Stevens’ knowledge concerning the home renovations came from an FBI agent from Sioux Falls, South Dakota (!) reading the e-mails and notes into the record.

Evidence of Stevens’ involvement in his personal finances generally, however, came in through a stipulation between the two sides setting out in writing what a Senate employee had to offer about her handling of the Senator’s bills. The judge’s reading of this stipulation into the record probably left that employee the happiest person in Washington today, because she certainly could not have looked forward to being grilled about all that she—a federal employee—did personally for the Senator, including paying his personal bills.

Then Judge Emmet Sullivan performed major surgery on the government’s case without anesthesia.

Pronouncing himself highly troubled by prosecution failures to turn over evidence to the defense, the judge ruled that evidence on business records concerning two VECO employees’ work on a remodeling project at U.S. Sen. Ted Stevens’ home would be stricken from the case.

A clearly angry Judge Sullivan also threw out evidence of an alleged sweetheart car deal between Stevens and disgraced VECO CEO Bill Allen, essentially buying the defense argument that the prosecution had withheld a critical piece of evidence to make the defense look bad in front of the jury.

The orders fell far short of the dismissal or mistrial that the defense had sought, but these sanctions got served with a special sting for the prosecution.

The judge declared that he will instruct the jury regarding the VECO timesheets that the government presented records that the prosecutors knew were not true. The jury will also be instructed that the car evidence cannot be considered because the government should have provided material evidence and did not do so.

The defense had alleged more than a half-dozen violations of discovery obligations—some of constitutional dimension—but the court focused on two problem areas for the prosecution: timesheets and a check for a Land Rover.

Two key workers for VECO on the residential renovation were Dave Anderson and Rocky Williams, who served basically as the job’s foreman. Prosecutors had introduced VECO timesheets showing Anderson having worked hours even though Anderson had given grand jury testimony that he had been out of town for some weeks that the timesheets had him working at Stevens’ Girdwood chalet. The defense complained vehemently that it was unfairly hindered in its cross-examination of the VECO bookkeeper testifying about the company’s timesheets because the prosecution did not disclose Anderson’s grand jury testimony until after the bookkeeper left the witness stand.

Prosecutors responded to this defense claim with a variety of arguments. One was that even without Anderson’s grand jury testimony about being out of town for weeks during some seven weeks the timesheets showed he was working on Stevens’ home, the defense could effectively challenge any record of Anderson’s work because the government had given Stevens’ lawyers “multiple reports of Anderson being falling-down drunk on the job.”

Another prosecution argument was that the defense was not harmed by any inflation of the hours spent on the job by Anderson when other evidence showed that perhaps a dozen other VECO employees worked on the site without their hours being shown.

These defenses of the prosecution failed massively. “It’s very troubling that the government would use records that they knew were false,” Judge Sullivan said.

While striking Anderson’s timesheets, the judge also threw out those of Rocky Williams. In doing so, the court essentially accepted the defense’s contention that the prosecution committed misconduct in letting Williams leave the District of Columbia to go back to Alaska shortly before trial without advising the court or opposing counsel.

The evidence regarding the transaction whereby Stevens got a brand-new Land Rover from Allen in return for a 1964 Mustang and $5,000 also went into the wastebasket.

The defense complained it extensively cross-examined Allen to suggest that he did not pay $44,000 for the Land Rover as he testified, but instead paid some lesser amount. On redirect examination, the prosecution produced a check from Allen for $44,339.51, thereby showing the defense up.

The problem was that the prosecution did not give the defense a copy of the check until after Allen left the witness stand, and the judge labeled that conduct “inexcusable.” In excluding all evidence of the vehicle transaction, Judge Sullivan accepted the defense’s argument that the prosecution had “sandbagged”—or trapped—the defense lawyers into challenging Allen on the Land Rover’s price before flourishing the check and making the defense look disingenuous.

Stevens’ hard-charging defense team scored a big victory this afternoon. Judge Sullivan’s rulings do not kill the case the way dismissal would have or delay it badly as a mistrial likely would have, but the curative instructions will hurt the government’s case. The judge will effectively tell the jury that the prosecution had been dishonest on one matter and failed to meet its responsibilities on another.

Tomorrow morning the defense will start offering evidence after the judge reads the jury the prosecution-wounding instructions and the government rests.

As many as 15 witnesses will testify for the defense tomorrow. The list starts with former Secretary of State Colin Powell, who presumably will vouch for Stevens’ character and may also discuss how demanding the Senator’s duties are. Similar testimony is likely to come from Sen. Daniel Inouye, D.-Hawaii, long known as Stevens’ best friend in the Senate.

Buoyed by his record, your humble blogger hazards additional predictions:

1. Despite its impressive length—32 pages, along with 33 pages of attachments—the defendant’s Motion for Judgment of Acquittal that was filed tonight will be denied. (This motion apparently took an attorney—Craig Singer, a former U.S. Supreme Court clerk who is the primary motions writer for the defense--well over 20 hours of work to prepare.)

2. This case will not go to the jury before Wednesday of next week.

The Department of Justice is bloodied but by no means down for the count. The outcome of this case will depend a lot on what is to come, particularly the testimony of Catherine Stevens and Bob Persons.


marxlaw said...

Great stuff Cliff! I'm hooked. Absolutely great coverage. I need to find you some Dominick Dunne glasses for christmas I think... keep up the good work. B

David F said...

Thanks Cliff. It'd be hard to make sense of it all without your analysis. David F

Unknown said...

Cliff, what's up with the "possible terms of service violation" notice Blogspot has put up? We are concerned over at Mudflats.
Is pressure being put on you by persons who want to suppress you or is this a false complaint designed to make it otherwise more difficult for you to get your blogging out to the public?