Prosecution Screws Up, Judge Blows Up, Trial Hangs in Balance

Live from the Ted Stevens Trial—Day Nine, October 2, 2008

Washington, D.C.--

Prosecutors are supposed to turn square corners, but this morning they hit a wall.

Fireworks erupted in court this morning after the government’s lawyers gave Sen. Ted Stevens’ attorneys a piece of evidence that the defense considers critical. The problem is that even the government admits that it was legally required to turn over the document before the trial started last week.

The controversy exploded after the defense said that just this morning the prosecutors provided an FBI report that Stevens’ lawyers claim goes to the core of the defense. The document said that key prosecution witness Bill Allen had told the FBI that Allen believed that Ted and Catherine Stevens would have paid Allen’s company VECO for the work VECO did remodeling their home if the Stevens had received bills for the work. This document appears to be at variance with the implication left earlier by Allen's testimony that he didn't bill the Stevens because Ted Stevens' friend Bob Persons had told him that Stevens really didn't want one.

Brendan Sullivan pulled out all the stops demanding that the court dismiss the indictment or at least declare a mistrial. Judge Emmet Sullivan called the government’s conduct “unbelievable” and pronounced himself “very, very concerned.”

The judge ordered both sides to submit written arguments on how the case should proceed, and set a hearing at 4:30 p.m. to hear oral argument and probably decide what happens now.

He then sent the jury home for the day.

Intensely emotional and even theatrical, the hearing this morning resembled closing arguments. The white-haired Brendan Sullivan grabbed at his chest and declared that the government’s failure was so disturbing that “my heart’s beating twice as fast as it should be for a 66-year-old man. This can’t happen in court.”

Violating the protocol in court that says lawyers should address the judge and not each other, Brendan Sullivan looked at the Department of Justice attorneys and implored them to “step up” and dismiss the case based on the concededly “gross error.”

Pepperpot lead prosecutor Brenda Morris jumped up and declared “"He's getting a fair trial, believe me, you're getting a great fair trial." She said that a “re-review” of documents in the government’s possession had led to discovery of the document last night, and she blamed the failure on “human error” arising in the all-out push to get this to trial less than two months after indictment.

The hearing hopscotched among three issues that loom large now: the cause of the mistake, the prejudice the mistake causes the defense, and the remedy the judge imposes for the mistake.

The first issue is whether the prosecution’s conduct was merely just a mistake, and that’s clearly what most bothered the judge. Judge Sullivan kept focusing on how “curious” and “very, very suspect” it was that the document had surfaced while Allen—the government’s key witness—was on the stand.

The judge uttered hot words that should make the prosecutors’ hearts turn stone cold: “It strikes me that it was probably intentional.”

Judge Sullivan asked Morris which person was responsible for the failure, but Morris said that the prosecution was a team and she wasn’t going to give anybody up.

Given the higher standard the prosecution must adhere to in criminal cases, this sentiment that the failure was too convenient to be a coincidence is the biggest risk for the government right now.

As to prejudice, Morris kept arguing essentially “No harm, no ultimate foul.” She acknowledged that the failure to turn over the document violated a court order. Morris contended, however, that the prosecution had given the defense before the trial a summary of Allen’s statements that contained the substance of what the document turned over this morning reported.

Brendan Sullivan characterized Morris’s argument as “disingenuous” and perhaps even “dishonest.” Brendan Sullivan said that the summary provided pre-trial said Allen believed that if they had been billed the Stevenses would not have paid VECO the entire cost of the home renovations, while the newly provided document said that the long-time CEO of VECO believed that the couple would have paid the company if they had received invoices.

Brendan Sullivan argued vehemently that the prosecution had not only violated the court’s order in this case but had also breached the defendant’s due process rights to get from the prosecution any exculpatory or impeaching information that goes to the question of guilt. (This kind of information is called “Brady material” after the seminal Brady v. Maryland decision in 1963 that established this constitutional doctrine.)

As to remedies, Brendan Sullivan went all-out for a dismissal of the indictment or a mistrial. Claiming that the judge could never put the toothpaste back in the tube with this jury, Brendan Sullivan said that if he had had that document before trial, he would have significantly changed his opening statement. Giving the defense additional time to prepare for Allen’s cross-examination would not suffice, said Brendan Sullivan, because as a defense attorney he needs to jump and try to undo as fast as possible what the prosecution’s achieved on direct examination.

The judge is clearly torn about what to do, and this is a much bigger deal than the earlier controversy about the prosecution’s role in sending witness Robert “Rocky” Williams back to Alaska without advising the defense or the court

Judge Sullivan is obviously angry and disturbed by the government’s conduct. The judge knows that he is under a microscope in this high-profile case, and he frequently points out that he has bent the lives of his court staff to get this trial going so fast after indictment after Stevens’ lawyers demanded it before the November 4 vote on the Senator’s re-election. For those reasons, it appears that the judge doesn’t want to grant a dismissal (which would end the case, because jeopardy has attached under the double jeopardy doctrine) or even a mistrial (as a new trial might not be able to start right away or end before the election).

The judge is concerned about Sen. Stevens’ rights as a defendant, and he wants to save the trial if he can find any way to do so. Your humble blogger hazards the prediction that Judge Sullivan finds some way to help the defense in front of the jury—perhaps by giving a toughly worded instruction or even by letting the defense give a second opening statement focusing entirely on the newly provided document. We’ll see at 4:30.