Monday, November 10, 2008

Considerations in Evaluating the Fairness of the Ted Stevens Trial


I have been repeatedly asked whether I thought the Ted Stevens trial was fair. I offer here a lengthy lawyer’s answer based on my observation of the trial and my more than 20 years as an attorney (including more than three years as a state prosecutor).

An evaluation of the trial’s fairness needs to include consideration of the following factors:

  1. the lack of any right for a defendant to be tried in his home state for alleged offenses that clearly occurred thousands of miles away;

  2. the U.S. Department of Justice’s discretionary and judgment-based system for satisfying its constitutional obligation to give exculpatory evidence to the defense;

  3. the defense’s request for an extremely expedited trial given the large amounts of evidence involved;

  4. the defense team’s very substantial skill, experience, and resources; and

  5. the judge’s throwing out of some of the prosecution’s evidence and instruction to the jury that the reason for the exclusion of some evidence was due to the failure of the prosecution to meet its obligations.

As a legal matter, Ted Stevens had no right to be tried in Alaska for these offenses. I will not go over all the legal arguments that the defense and the prosecution have fought over in court for weeks, but it is important to address one of the most frequently heard complaints from Alaskans. No matter how it seems to those on the Last Frontier, this trial concerned paperwork that Ted Stevens submitted to the Senate in Washington, D.C. If federal appellate courts reverse these convictions, the grounds for reversal will not include the trial court’s denial of the motion to change venue.

The federal system for discovery appears to create more potential for discovery violations than does the system used in Alaska state courts, particularly in cases with a lot of evidence. The prosecutors made a number of mistakes in turning over to the defense some evidence that could have been interpreted as exculpatory (legalese for tending to negate guilt). In letting the case be decided by the jury, Judge Emmet Sullivan showed that he didn’t believe that the prosecutors’ errors fundamentally hampered the excellent defense lawyers’ ability to represent their client.

The prosecutors’ mistakes did not mostly appear to be intentional. Those errors instead seemed primarily to reflect a combination of two factors: the policy for providing exculpatory evidence followed by the U.S. Justice Department and the extremely expedited nature of this trial.

I have an unusual perspective on this prosecution because although I have litigated several civil cases in federal court in my two decades as an attorney, my entire experience in criminal law has been in the Alaska state courts. Prosecutors in Alaska basically follow an “open file” policy in which the government gives the defense essentially everything in the prosecutor’s files with very slight exceptions such as strategy memoranda. As a prosecutor, I found that this practice minimizes problems with discovery.

The U.S. Department of Justice, on the other hand, does not follow this “open file” practice in satisfying its constitutional obligation to turn over evidence to the defense. Citing factors such as the risks to national security and witness security, the U.S. Attorney’s Manual speaks of “the reasoned and guided exercise of prosecutorial judgment and discretion” in describing how government lawyers disclose exculpatory material to the defense.

In this case, the prosecution seemed mainly to be concerned that if it just handed over to Ted Stevens’ lawyers all the evidence gathered in the investigations of Alaska public corruption, the defense would then find a way to leak that information to attorneys for some of the other targets in those ongoing probes.

Maybe it’s just because I’ve never practiced criminal law in the federal system, but it has always struck me that the Alaska approach was better. Asking people to make discretionary decision can lead to problems in such a sensitive area.

Given the amount of evidence, this trial happened very, very fast. The almost ungodly speed with which this trial occurred also played a factor in the discovery problems in this case. This trial started at the defense’s request less than two months after the announcement of the indictment, when under normal circumstances a trial featuring all these acres of evidence would have come nine to 12 months later.

Noting that the prosecution had consented to this breakneck pace, Judge Sullivan rejected out of hand any suggestion from the government that the discovery snafus could be blamed on the very speedy trial in this case. As a practical matter, however, the highly expedited nature of this trial did seem to contribute to the discovery issues that arose in that it is generally a bad idea to ask people to make a large number of important discretionary decisions under great time pressure.

This defense was skilled, effective, and very high-end. As I have before, comparing this defense to that seen in courts every day all around the country is like comparing a jet plane to a tricycle. There were at least six lawyers working on this defense at all times, and I think there were probably closer to 10. Brendan Sullivan, the lead defense attorney, is probably the leading white-collar criminal defense lawyer in the United States. He reportedly bills at $1,000 per hour, befitting a lawyer who went for about three decades with no client ever going to jail. I estimate that this trial cost at least $200,000 per week, and the total cost of the defense is getting close to $2 million so far.

The prosecution’s errors led the judge to trim the government’s case and criticize the prosecution in front of the jury. After the defense brought the government lawyers’ errors to his attention, Judge Sullivan horsewhipped the prosecutors in court outside the presence of the jury. In front of the jury, his responses were more mild. He did throw out some evidence and gave the jury an instruction blaming the prosecution for excluding some of that evidence. Appellate courts will take the trial court’s rulings into consideration in deciding the defendant’s appeal.


Unknown said...

Thanks for your excellent insight throughout the trial Cliff. Your perspective as an attorney provides an invaluable component. I am very interested to see your take on the various follies that have permeated our political system at home. Welcome back.

hello said...

Thank you for your insight.