Trial Still On, But Prosecution Shaken

Live from the Ted Stevens Trial

Day Nine--October 2, 2008

Washington, D.C.--

The judge smacked the prosecutors hard but let the trial go on.

Judge Emmet Sullivan denied the defense’s request for a dismissal of the indictment or a mistrial, ruling that the government’s failure to disclose material to the defense was not so egregious that he needed to shut down the trial.

The judge did, however, grant the defense’s motion for a continuance until Monday morning. The delay gives the defense time to review the additional materials the judge ordered the prosecution to disclose before the defense cross-examines Bill Allen, the prosecution’s key witness against Sen. Ted Stevens.

Before deciding not to end the trial, the judge went back and forth for more than an hour late this afternoon in often impassioned discussions with the lawyers about how this violation happened, how badly it had hurt the defense, and what should be done about it.

Robert Cary, one of an apparent 13-member team of lawyers and paralegals in court for Stevens today, told the judge that trial “was broken and can’t be fixed.” Cary argued that the government’s conduct in not disclosing certain materials until the middle of trial had left the playing field permanently tilted against the defense.

Cary cited in particular the prosecution’s provision to the defense of a document that had information favorable to the defense blacked out. The judge called that action “shady.”

Chief prosecutor Brenda Morris claimed that “There was no nefarious intent” but just hasty mistakes, but Judge Sullivan came down hard on the prosecution.

Referring to the elite unit of Department of Justice prosecutors handling this case, the judge asked Morris “How does the court have any confidence that the Public Integrity Section has any integrity?”

The judge ordered the prosecution to give to the defense all reports by FBI agents made in the case and all grand jury transcripts, declaring that “The court has no confidence” in the prosecution’s ability to discharge its constitutional obligations to hand over exculpatory information to the defense.

Given the court’s ruling, Morris told the judge that the prosecution team had reported itself to the Office of Professional Responsibility (OPR), the watchdog outfit within the Department of Justice that polices ethical issues among its lawyers.

There was little discussion on the merits of the case in a dramatic day of hearings that drew a bevy of prominent onlookers. Lead defense counsel Brendan Sullivan did announce, however, that Allen was “an absolute liar” in his statement yesterday that Ted Stevens’ Bob Persons had told Allen that Stevens did not really want Allen to bill Stevens for the work VECO did in 2002 on Stevens’ Girdwood home.

The bottom line is that this day produced big victories for the defense. Stevens’ team at Williams & Connolly gets a wealth of new materials to mine for nuggets useful for impeachment or argument. (The result is essentially that the defense gets the advantage of the “open file” disclosure from the prosecution that the defense sought in this case from the beginning, an approach that the prosecution has to follow in state court under Alaska law.)

Additionally, the judge made it clear that he would allow the defense to have a tough curative instruction that basically announces to the jury that the government hid evidence.

Today’s events have left the prosecution back on its heels. The government’s five lawyers in the courtroom today had to face CNN cameras following their every move as they walked out of the courthouse, and thus endured the same kind of perp walk that Sen. Stevens has to do every day. The prosecution’s attorneys face both a microscope on what they turned over late and what they are just turning over now, as well as an internal investigation into how this incident happened.

Most people are of course sympathetic to those who have made mistakes at work under pressure, but the events so far in this trial makes you wonder why the prosecution indicted Ted Stevens this summer if the government wasn’t ready to proceed quickly to trial before the election. Given today’s blow-up, the defense’s push for a super-speedy trial might have been both a good tactical move legally as well as a way to give Stevens a chance to win acquittal before he faces the voters.