Live from the Ted Stevens Trial--Day Six

September 29, 2008

Washington, D.C.--Monday starts as Friday ended, with the judge tongue-lashing the prosecution regarding witnesses.

Friday, the question was witness flow. The judge was unhappy that the prosecution’s inability to immediately produce another witness to testify forced a delay in testimony that day, and he threatened to declare the prosecution’s case over if that kind of thing happened again.

Today, the issue is more serious. The controversy is about the government’s role in sending a witness back to Alaska after it appeared that the witness might not help the prosecution’s case, and Judge Sullivan is steamed.

What set the judge off is told best in the first paragraph of “Senator Stevens’s Motion to Dismiss Indictment or for a Mistrial”:

The defense believed that Rocky Williams was a key government witness. The
government apparently thought so too. For the better part of the past two
weeks, the government has had Mr. Williams in Washington, D.C.,
interviewing him and preparing him to testify. Apparently, government counsel
did not like what they heard. They sent him back to Alaska last Thursday, the
day of opening statements.

The Senator’s lawyers filed this document by e-mail sent just before midnight last night (Sunday). The commitment to quality and aggressiveness in the Williams & Connolly firm is evident in both the writing and the timing of this motion: The 14-page memo, two-page affidavit, and three supporting pieces of documentary evidence were apparently assembled in less than 12 hours on a Sunday.

Rocky Williams was VECO’s superintendent/foreman for VECO on work done on Sen. Stevens’ home in 2000-2001, and Judge Sullivan says he is “flabbergasted” that the government “unilaterally” decided to help Williams leave Washington—particularly when the defense had subpoenaed him as well. There are suggestions that the government was motivated by concerns about Williams’ health, but the judge also at least entertains the defense’s argument that the government was trying to hide Williams after deciding that he would not be a helpful witness after all. The defense offered various points it claimed it learned from Williams for the first time in a call Williams made to defense counsel on Sunday afternoon that the defense claims cast doubt on the prosecution’s case against Stevens.

Among those allegedly exculpatory points that the prosecution was supposed to pass on to the defense but failed to do so are Williams’ statements that he worked substantially less in the renovations than his timecards showed and that Ted Stevens’ apparently sole interest in the remodeling job was to keep his wife Catherine happy. (Stevens’ defense attorneys had filed a document on Saturday arguing that the court should allow the defense scope for cross-examination of Rocky Williams about any alleged abuse of alcohol or drug abuse, but the switch in position the next day to contending that Williams possessed critical evidence for the defense that the prosecution was trying to conceal is surprising only to those not used to litigation or politics.)

The judge telegraphs strongly that he will not dismiss the indictment or grant a mistrial, but he is clearly bothered by the government’s conduct in unilaterally deciding to let Williams depart the jurisdiction while under subpoena by the defense. He calls what the government did “very, very disturbing” and says “Somebody’s treading in very shallow water here.” Judge Sullivan says he is interested in considering some other form of punishment for the prosecution, and orders both sides to file on that question.

The room gets more relaxed when we move towards bringing in the jury and hearing actual testimony by witnesses. The judge jokes that the mood had been so good because the Redskins had won on Sunday.

Six witnesses testified today, all who worked for VECO in some capacity related to the renovations of Stevens’ home. The first was the former VECO bookkeeper Cheryl Boomershine, whom the judge allowed the defense to bring back for additional cross-examination based on the new evidence the defense said it got from Rocky Williams over the weekend. Defense attorney Robert Cary got Boomershine to say that she doesn’t know if Williams worked all the hours on the home renovation that were shown on his timecards.

Brian Byrne was a carpenter who worked as a subcontractor for VECO installing the deck on the new lower level of the house as well a handrail inside the house. (Recall that the house was expanded primarily by jacking up the existing floor and putting in a new first floor.) Byrne says that he was hired directly by Allen, who said “a certain amount of discretion would be need to be used because it was the senator’s house” and because VECO was an oil-services company instead of a general contractor. Asked why he thought Allen would have said that, Byrne responded “I’m not really sure, other than the appearance of impropriety I believe is what he was concerned about.”

The day’s testimony illustrated the saying that a trial features two sides each trying to stage its own play for the jury at the same time. The prosecution’s play casts Ted Stevens as a villain who takes hundreds of thousands of dollars in free benefits from VECO, particularly in the home renovation, and then hides them. In the prosecution’s play, Stevens happily took those benefits, some of which appear gilded or excessive.

Cecil Dale, an electrician, says that he installed elaborate rope lighting at the Stevens chalet. Another electrician, Daniel Johnston, testifies that because “the Senator was maturing” VECO directed him to put in a switch that would allow Stevens to turn the lights on a salmon statue sitting on Stevens’ porch without having to reach down to plug it in.

The defense pressed its counternarrative in cross-examination, and that opposing story makes Bill Allen the bad guy. In the defense’s play, Allen gives Ted Stevens stuff he doesn’t want before Stevens can stop him. When those things are not clearly defective—like a light or a roof heating system that malfunction shortly after installation—they are so garish and over-the-top that a classy guy like Stevens wouldn’t have wanted them.

Among the three defense attorneys who cross-examine prosecution witnesses today, it is Beth Stewart who stages the defense play most effectively. She gets Dale to say that the outdoor lighting VECO installed was so bright that it irritated the neighbors and could be seen 1,000 feet up the ski slopes at that resort town. And she gets a witness to say that Allen also arranged for the same elaborate rope lighting that went onto Stevens’ house to go onto his own house and his son’s. Stewart does this with just the right touch that conveys a mocking tone without seeming heavy-handed.

There are again five lawyers prominent in court today for Ted Stevens: lead lawyer Brendan Sullivan; three who cross-examine (Robert Cary, Alex Romain, and Beth Sullivan); plus the so far silent Craig Singer, the writer of zingy motions who appears to play the traditional Williams & Connolly role of the attorney called “Worse Yet” (as in “Worse Yet, the government…”) (Read Evan Thomas’s fine The Man to See, a biography of firm founder Edward Bennett Williams, for more on how Williams employed the lawyer originally known as “Worse Yet.”)

The prosecution went in court with Brenda Marsh, Nicholas Marsh, and Joe Bottini, with Edward Sullivan and James Goeke doing a lot of holding down the fort back in the office throughout the trial.

After testimony ended and the jury left, the day ended with legal arguments over the evidence to be allowed in when Bill Allen testifies, apparently starting tomorrow. The defense really wants some freedom to question Allen about any effect he thinks his testimony might have in getting the feds to keep him from being prosecuted for sex with an underage girl, an allegation that Allen has denied. Judge Sullivan appears inclined to allow the defense some latitude in questioning Allen about possible bias he might have over the investigation into the allegation, although the judge is concerned about touching off a mini-trial on the allegation and sensitive that allowing the defense to identify the alleged crime might inflame the jury against Allen.

The evidentiary shoe then goes on the other foot. The defense really does not want Bill Allen to list by name all the state legislators he has admitted that he bribed, because one of them is Ted Stevens’ son Ben Stevens, and suggests that the only purpose of having Bill Allen name Ben Stevens as a bribe-taker in this courtroom is to inflame the jury improperly against Ted. The judge takes both questions under advisement.

Those who can focus on the trial while the stock market swoons will get to hear seven witnesses tomorrow before Bill Allen testifies, which is supposed to begin at about noon. His appearance will be one of the highlights of the trial, and he is likely to be on the stand for at least two days.