Friday, January 16, 2009

Eve-of-Weekend Roundup on Post-Trial Filings in the Ted Stevens Case

Anchorage, Alaska

No fewer than 15 documents have appeared on the docket of U.S. v. Theodore F. Stevens in the past two days as the motions and orders fly hard and fast. Some of the language in the paperwork fit the characterization of this case given by the Wall Street Journal’s Law Blog, which has called it “Most Theatrical Trial of 2008.”


1. Judge Emmet Sullivan has stayed very angry concerning the Department of Justice’s conduct and explanations for that conduct. The savage tone is apparent in the court’s order today. That order addresses the government’s request for relief from the order issued Wednesday that Attorney General Michael Mukasey personally swear to internal departmental decisions on FBI Agent Chad Joy’s complaint about the handing of the Alaska public corruption investigations and the Stevens trial. The Department of Justice based that Motion for Reconsideration partly on the basis that the government’s lawyers had misunderstood and thereby accidentally misrepresented Joy’s status under federal whistleblower laws. Unfortunately for the prosecution, those statements in the Motion for Reconsideration further stoked the fires of Judge Sullivan’s fury.

Citing the heavy demands on the Attorney General’s time, the judge’s revised order allows the Attorney General to designate other high-level officials to make those personal declarations regarding Joy’s status under the whistleblower laws. Judge Sullivan also relents on his previously imposed deadline of noon today, but makes the new deadline 5 p.m. Saturday (i.e., tomorrow).

It’s not just the highly onerous deadline that’s a shocker in the order, however. There’s the tough language: The court references “a pattern of belated revelations followed by unsatisfactory, and possibly false, explanations from the government in this case….”

Even more ominously for the prosecution, Judge Sullivan’s order quotes more than 30 lines of a defense pleading setting out seven previous examples of alleged prosecution misconduct in the trial that the prosecution characterized as good faith mistakes. Just like it’s good news when the jury sees the case the way a trial lawyer would like, it’s bad news when the judge sees a trial lawyer’s alleged misconduct the way that lawyer’s opponent characterizes it.

Once again, we haven’t heard the prosecution’s full explanation regarding the concerns the judge has raised about the merits of Agent Joy’s complaint (particularly concerning alleged discovery violations in the Stevens trial), the Department of Justice’s handling of that complaint, and the representations made about that complaint in court. What’s striking, however, is that the government’s explanations appear to be digging it in deeper. Contrary to his previous pattern, the judge has stayed mad and gotten even madder. The scorching 13-page order issued today substantially increases the likelihood that the judge will overturn the convictions and order a new trial.

2. Seeing a chance to surf on the judge’s anger at the prosecution, the aggressive Williams & Connolly defense team has ridden that wave over the top. Ted Stevens’ attorneys have filed a proposed discovery plan, basically a list of things that the defense would like to get from the government to help the judge figure out what he should do to remedy prosecutorial misconduct he might determine has occurred. Complete with 33 items of document requests, this wish list doesn’t just represent a kitchen sink approach—Stevens’ lawyers have set up a bathtub big enough to hold all of their requests.

The defense asks, for example, for “[a]ll documents relating to the decision to seek an indictment of Senator Stevens in the District of Columbia instead of the District of Alaska.” Materials about this internal strategy decision are highly likely to be protected from disclosure.

In a more ridiculous move, the defense seeks “[a]ll documents relating to [FBI Agent Mary Beth] Kepner’s relationship with [Bill] Allen, including…any documents suggesting an inappropriate relationship between them, sexual or otherwise.” This request takes Agent Joy’s complaint about a comment Kepner allegedly made about wearing a skirt when Allen testified and raises it to silliness on stilts. If Judge Sullivan makes a factual finding that Mary Beth Kepner had sexual contact with Bill Allen, I will don my swim trunks and my gym shoes, paint the rest of my body in blue and gold paint, and run from Allen's house to the Federal Courthouse in Anchorage no matter what the weather. More generally, it’s harder for the Stevens team to claim that Kepner's relationships with Allen or any other source hurt Stevens' defense because Kepner never testified in the Stevens trial.

That’s it for now. The prosecution just filed its opposition to the defense’s motion for a new trial, and I will review that carefully with the original motion and probably post again on Monday. Happy Martin Luther King Day.

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