Delta Force Fights the Battleship in the Singles Bar for Blue-Eyed Huskies

Live from the Ted Stevens Trial, Day 13

Washington, D.C.--

You know it’s a big day when a welder with an alleged drinking problem bumps the former Secretary of State.

Four significant developments occurred in the Ted Stevens trial today:

1. The judge softened the curative instruction discussed yesterday by deleting the announcement that the government knowingly presented false testimony.

2. The judge allowed the prosecution to present helpful testimony from an obviously vulnerable witness who the defense did not cross-examine.

3. The judge denied the defendant’s Motion for Judgment of Acquittal.

4. The defense started presenting witnesses.

All this action makes for an almost novella-length post. To compensate, this blog unveils an innovation--chapter headings.

They Didn’t Lie, But They Did Fail to Meet Their Responsibilities

The prosecutors got back a lot of what it looked like they had lost yesterday. Judge Emmet Sullivan had calmed down overnight, and his more moderate mood was evident in his announcement to the lawyers of a modified curative instruction he would give when striking some evidence.

This modified instruction was good for the government, because in it Judge Sullivan removed the statement he had included in yesterday’s version that said that the prosecutors presented evidence “that the government knew was not true.” In the version the judge actually gave the jury, the explanation for the instruction to disregard certain evidence was changed to “The government had an obligation to provide certain evidence to the defendant and did not do so.”

This revised version seemed more consistent with legal precedents cited by the prosecution in a Motion for Reconsideration filed last night, and the judge’s announcement reduced the sting of the instruction for the government.

The judge told the jury that the prosecution’s case was losing the evidence about the car transaction and the evidence from a VECO bookkeeper about two employees’ timesheets showing their work at Sen. Stevens’ home in Girdwood. The judge also told the jury that the prosecution’s failure to meet its obligations caused that striking of evidence. But the judge did not tell the jury that the reason for the exclusion was the prosecution’s knowing presentation of false evidence.

The Department of Justice had just dodged a big bullet.

The Balance of Power

The moment that followed showed a fundamental difference between the two sides in this case. The prosecutors had a hard time deciding how to proceed, and got Judge Sullivan to give them repeated breaks while they huddled.

The lengthy delay suggested that the prosecution team is like a battleship run by committee, while the defense team is more like the U.S. Army’s elite Delta Force.

The prosecution has access to the powers, assets, and resources of the mighty federal government. Subject to some constraints, federal prosecutors can wiretap telephone calls and meetings, unleash FBI and IRS agents to track down evidence, and decide who to charge with crimes.

The defense has none of these things. To even up the score some, the defendant in a criminal case does have certain constitutional and other institutional advantages such as the right to discovery from the prosecution, the presumption of innocence, the right not to be forced to testify, and the requirement that the prosecution prove guilt beyond a reasonable doubt.

This case shows what happens when the advantages the defense enjoys are exploited to the maximum. Comparing the defense Williams & Connolly is putting on in this case to what you see every day in courtrooms around the country is like comparing a jet plane to a tricycle.

The number of people working each day on the trial for each team is probably roughly similar, as each side has a dozen or more on the case. The way they are organized is obviously different, however.

The Williams & Connolly operation resembles a squad of commandos operating behind enemy lines—tough, ruthless, and decisive. The troops are a little upgraded in rank (and in pay) from what you’d see in your actual military, but the structure is instantly recognizable. Brendan Sullivan is the commanding officer, Rob Cary is the executive officer, Beth Stewart and Alex Romain are the weapons specialists, and Craig Singer is the nerdy intelligence expert brought along for his foreign language skills. (Think Saving Private Ryan.)

The prosecution, on the other hand, seemed early today like a nuclear-armed warship run by co-captains worried about how the top brass will judge their performance. There’s a lot of firepower, but less mobility than you'd like. The difficulty this morning in figuring out whether to put on long-time VECO welder Dave Anderson—or just rest the government’s case—appeared to show a weakness in this team of excellent prosecutors.

But just when you might be thinking that when it gets to close quarters, bet on the guy who knows who to use the combat knife, the government makes one of its best moves yet.

His Uncle Might Say He’s an Alcoholic, But the Nephew Knows His Stuff

The prosecution calls Dave Anderson, and he is the most effective witness in the trial so far.

Anderson did much of the work on Stevens’ home that the Senator got for free. Putting the former VECO welder on the stand, however, might seem a crazy decision by the prosecution. Anderson’s uncle—former VECO CEO Bill Allen—has told the jury that Anderson was an alcoholic, and just yesterday the prosecution told the judge outside the presence of the jury that there were multiple reports that Anderson had been “falling-down drunk” on the Stevens renovation job site.

Moreover, Anderson has testified before the grand jury that he was in Oregon for some seven weeks that his timesheets recorded him as working on the renovation at Stevens’ home in Girdwood.

But the jury doesn’t see a drunk or a worker who apparently fudged his timesheets.

Instead, the man appearing in court is a knowledgeable tradesman who gives a comprehensive and detailed recounting of the work VECO did on Stevens’ home. Prosecutor Joe Bottini is particularly effective in getting Anderson to go over a series of photographs to show the various stages of construction and the work VECO contributed at each stage.

Those stages of remodeling included taking off an existing deck, jacking up the house, laying a new foundation, installing the flooring, putting up a new upper deck and lower deck, and installing an escape platform and retractable escape ladder that Anderson personally demonstrated to the Senator. Anderson testified that VECO did not do all the work on the remodeling done in 2000-2001, but it was clear that VECO had done many, many things at Stevens’ home.

To top it off, this guy with well-documented personal problems turns out to have a natural folksy charm that triggers laughter (“We had a compactor rodeo”). Unlike most lay witnesses, Anderson frequently looks straight at the jury while testifying about what he keeps calling “the charlet.” Oddly enough, he is a better summary witness regarding the government's case than the colorless FBI agent the prosecution put on to do that job yesterday.

Anderson’s testimony contained some nuggets for the defense as well. He stressed that the remodeling job was Allen’s project aimed at making Stevens’ life easier, and Anderson also said that the Senator made few appearances at the job site while the renovation was occurring.

Anderson’s account of his own work might make him seem slow, and an observer might be justified in concluding that he was too inefficient to hire for your own home remodeling job. But overall Anderson was the best witness the prosecution presented.

And then came the most astonishing moment of the trial. Everybody’s ready for a slashing cross-examination featuring accusations of drunkenness and dishonesty. The defense may also allege that Anderson is shading his testimony based on a falling-out with Allen after Allen’s girlfriend left him to go off with his nephew Anderson. A full-blown country & western song seems ready to bust out in the middle of this frontier opera.

But no. The defense instead chooses not to cross-examine Anderson, and he walks out of the courtroom.

Two explanations may account for the failure to cross-examine Anderson.

One is that the defense will call him as their witness in the defense case. The second is that the defense sees Anderson as like his uncle Allen—a double-edged sword for both the prosecution and the defense—and thinks that other things brought before the jury will be sufficient to discredit him. Those other things will include Allen's testimony that Anderson was an alcoholic, as well as Bob Persons' expected testimony about Anderson’s liquor consumption on the job. Those other things will also include the curative instruction, which will tell the jury to disregard the timesheets of Anderson and the VECO bookkeeper's testimony about those timesheets.

The prosecution may not have brought up the discrepancy on Anderson's hours because it didn't want to draw attention to the fact that the government allowed the VECO bookkeeper to testify about Anderson's timesheets without revealing that Anderson had told the grand jury something substantially at variance with what the timesheets showed.

Based on what we saw today, it is difficult to believe that the jury will buy any defense argument that Anderson was so drunk on the job all the time that he was worthless in both his product on the site and in his memory now. Similarly, he obviously spent so much time at Stevens' home—even identifying the vehicles of various VECO workers in a number of photographs—that the jury will not end up concluding that the misadventure with his timesheets means that he cannot be trusted about whatever he says happened at the job site.

The Wonky Prosecutor Beats the Wonky Defender

The government concluded its case, and Judge Sullivan hears oral arguments on the defendant’s Motion for Acquittal while the jury cools its heels in the jury room.

The hearing on the motion runs perhaps an hour and seemed longer to many observers. As is often true of lawyers who are best at writing arguments for judges, the analytical abilities of Nicholas Marsh for the government and Craig Singer for the defense seem to exceed their intuition. Put another way—and understand that I can say this because I make much of my living writing briefs—appellate and motions attorneys often seem like the kind of people who don’t do as well in singles bars as the most celebrated trial lawyers do.

Both counsel did fine jobs, and Marsh won as he was supposed to. The law tells the judge to draw every inference in favor of the government’s case when the defense asks for a judgment of acquittal, which would take the case away from the jury. This built-in procedural edge for the prosecution in the middle of the trial is flipped at the end, because the jury can only convict if the government proves the case beyond a reasonable doubt.

The War Hero Springs the Mousetrap, and the Dogs Bark Mockingly at the Prosecutors

The defense finally calls the first of what will be dozens of witnesses for Ted Stevens.

That first witness is not Colin Powell, as previously announced. The former Secretary of State and Chairman of the Joint Chiefs of Staff had to be put off until tomorrow due to conflicts after Anderson testified unexpectedly. Instead, first up for the defense is Sen. Daniel Inouye, D.-Hawaii.

With almost a half-century in office, Inouye is one of the longest-serving U.S. Senators ever. After establishing that Inouye won the Medal of Honor in World War II, Brendan Sullivan guides the Hawaiian through his long friendship with Stevens—the two veteran lawmakers call each other “brother,” and Stevens’ youngest daughter calls Inouye “Uncle Dan.”

Inouye is in the courtroom to serve as a character witness for Stevens, and he vouches completely for that character. “I can assure that his word is good. As far as I’m concerned, it’s good enough to take to the bank.”

Other Senators have “absolute faith” in Stevens, Inouye declares.

Marsh tries to cross-examine Inouye, and the prosecutor walks right into a trap. Inouye announces that he trusted Stevens from the start due to their common backgrounds as World War II veterans who faced incredible danger serving their country. As Inouye’s unit took the war’s highest casualties, Stevens flew with the Flying Tigers, an outfit that lost half its pilots.

That mention of Stevens’ wartime heroism on cross-examination could of course be just a coincidence. It also could have been the result of a plant that allowed the defense to get Stevens’ risky World War II service into evidence without calling the Alaska Senator and thereby exposing him to cross-examination.

The day wraps up with three Alaskans talking about dogs, and the trial gets an injection of Alaska color.

Musher Dean Osmar, dog-breeder David Monson, and Alaska State Balladeer James “Hobo Jim” Varsos all give testimony designed to make the point that the Siberian husky that Stevens got as a gift was worth far less than the prosecution suggests. Osmar and Monson know their sled dogs: The former has won the Iditarod and the latter has taken the Yukon Quest crown, and Monson's late wife was Iditarod legend Susan Butcher.

Osmar said he originally donated the dog for a charity auction because of its perceived low value. He said the dog was the runt of the litter, and was particularly unappealing for mushers because it was a blue-eyed female with light coloring. It might be an old wives’ tale, but the word around the campfire has been that such dogs tend to be “wheezers” that end up with breathing problems.

Some media coverage of the day’s events have a distinctly canine flavor. The ABC News website, for example, headlined its story “Senator, Sled Dog Champs, ‘Hobo Jim’ Testify at Stevens Trial.”

Puppies might be well-nigh irresistible to the press, but let’s not overlook Brendan Sullivan’s sharp tactical moves in witness selection today. He started off the defense case with the venerable Sen. Inouye to make the point that Ted Stevens is too respected for anyone to think that he intentionally concealed hundreds of thousands of dollars in freebies. Then Sullivan followed up with testimony about the dog, because the testimony about the animal's low value helps him make fun of the government’s case as excessive and even silly.

The prosecution, on the other hand, hopes that the jury is ultimately swayed more by Dave Anderson talking about home renovations than by mushers discussing dog values. There’s a lot more building and a lot more barking to go before this trial goes to bed.

Administrative Notes: The next post may not go up until early Saturday afternoon East Coast time, as I have been running pretty hard and could take Friday evening off. In the meantime, I would love advice from anybody with experience using this Blogger format on how to get removed the annoying screen that appears when you first click on this site. I already e-mailed the message that was supposed to eliminate the problem by now, but the screen remains. Thanks.