Sunday, October 19, 2008

What the Prosecution and the Defense Might Do in the Rest of the Trial

Live from the Ted Stevens Trial, Between Day 18 and Day 19

Washington, D.C.—

Chief prosecutor Brenda Morris has told the judge that she expects to spend perhaps another hour cross-examining Ted Stevens on Monday morning. Depending on what comes up in the remainder of the cross-examination, lead defense attorney Brendan Sullivan may have some questions for his client on redirect examination.

Following Stevens’ testimony, it appears that the trial will proceed to closing arguments on Monday. As the side carrying the burden of proof, the procedure is for the prosecution to go first. After the defense makes its argument, the prosecution gets the last word to rebut the defense’s closing.

What will the two sides do at the end of the trial?


In the remainder of the cross-examination, the prosecution will aim for the same goal it will seek in closing: Hammer on the evidence most damaging to Stevens. Some of that evidence has already come into the record from chief prosecution witness Bill Allen's testimony, taped conversations between Allen and Stevens, and the cross-examinations of Stevens' wife Catherine and Stevens' friend Bob Persons.

The government can do more during the cross-examination of Ted Stevens, however, to pound home evidence favorable to the prosecution. The best evidence for the government that could be elicited on cross-examination of Stevens would come from making him set out:

  • The substantial improvements made to Stevens’ Girdwood home and the additional repairs made there;
  • Stevens’ extensive opportunities to learn about those improvements and repairs between 1999 and 2006; and
  • Stevens’ frequent contacts with Bill Allen during and after the making of those improvements and repairs, particularly their annual vacation-style “Boot Camps” and other face-to-face meetings together.
The best way the prosecution might demonstrate this evidence is to make a graphic during the cross-examination with four columns like this:

Year / Improvements and Repairs Added / Days Stevens Spent in Girdwood / Days Stevens Spent with Allen

Although the courtroom is filled with state-of-the-art video technology, the best way to make this graphic would be the old-school method of using a marker pen on a simple pad mounted on an easel in front of the jury.

This graphic would be a timeline that could help summarize a flood of testimony and exhibits for the jury. Making Stevens help fill out that graphic by giving answers to a series of short, precise questions would be like preparing a punchlist.

On closing argument, the prosecution could supplement that simple timeline/punchlist by adding one photograph of each improvement to illustrate the graphic. As one observer pointed out, the before and after photographs of the home could constitute some of the most damning evidence against Stevens.


The defense’s task is in some ways more psychological than presentational. The prosecution has got a mountain of facts, but the defense wants to get the jury to focus on feelings. Lead defense attorney Brendan Sullivan will likely try to get his client to calm down and stay in control during the remainder of cross-examination. The Senator and his lawyer will continue to do everything they can to get the jury to zero in on Allen’s concealment of his role in providing valuable things to Stevens instead of on the opportunities Stevens had to learn what Allen had done.

Stevens and his attorney need to show somehow that the Senator felt sorry for his brain-injured friend Allen and let his sympathy cloud his judgment in dealing with the VECO chief. It’s a tough task, but that’s why Ted Stevens retained Brendan Sullivan and the top-flight Williams & Connolly firm.

The defense closing can probably be summarized by the acronym "BIBTOB." That is, Brendan Sullivan will likely argue or imply that Ted Stevens was:

Betrayed by his former friend Allen and by his own inattentive wife Catherine
Isolated by his long distance from Girdwood most of the year
Busy from all his duties in the Senate
Too honest to conceal anything knowingly, as his character witnesses testified
Old and distracted
Beneficient in allowing Allen and others to use the Girdwood chalet

Brendan Sullivan will likely rely on several matters revealed during the trial to bolster these themes. As summarized by Brent Kendall in an article in the Wall Street Journal, those points helpful to the defense include the apparently excessive and unnecessary costs incurred in VECO's work renovating the chalet, the confusion Allen showed in his testimony, and Allen's potential motives to shade his testimony to help the prosecution. Sullivan will also argue that the prosecution can't be trusted, citing the judge's instruction regarding evidence excluded from the case due to the prosecution's failure to meet its obligations to give certain evidence to the defense. Sullivan may even ask the jury to discount Allen's testimony given that the judge angrily announced in open court that someone was sending signals from the audience while Allen testified.

If you want to see the closings, knowledgeable court personnel recommend getting in line by at least 8:30 a.m. outside the courthouse.

1 comment:

Unknown said...

If history serves as a lesson, the defense and prosecution may change.The argument that the prosecution had to prove malicious intent was a Might I say that however difficult the defense might be this time.


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