Wednesday, January 14, 2009

The Ted Stevens Trial Allegations Get Personal and Draw a Highly Unusual Response

Anchorage, Alaska—

The judge looking at the new complaints against the prosecution team in the Ted Stevens trial released a much less redacted version of the FBI agent’s would-be whistleblower complaint disclosing many of the names and details blacked out in the document released last month. Judge Emmet Sullivan also issued a highly unusual order showing substantial anger and skepticism at the Department of Justice’s treatment of that complaint.

The substantially less redacted version of the complaint confirms some of what this blogger had predicted based on the originally redacted version: Chad Joy is the FBI agent who filed the complaint seeking whistleblower protection, and his co-worker—fellow FBI Special Agent Mary Beth Kepner—is the main target of the complaint.

I called the document prepared by Joy “a would-be whistleblower complaint” because the Department of Justice determined early last month that Joy would not receive whistleblower protection. After Judge Sullivan learned today that the Department had advised Joy as early as December 4 that the Department would not give Joy such protection, the judge announced that he had previously thought that either Joy already had the protection or that his whistleblower status was still in limbo pending an internal investigation by the Department.

Judge Sullivan said that he would have treated Joy’s complaint differently over the last month if he had known that the Department had not afforded Joy whistleblower protection. The judge’s obvious anger at the Department’s delays and statements that the court apparently considers unforthcoming led him to issue a strikingly uncommon order for a District Court Judge.

Judge Sullivan directed Attorney General Michael Mukasey to personally sign a declaration under oath to be filed no later than noon this Friday that details all those within the Department of Justice who knew about the complaint, what they knew, and when they knew it. The order also tells the Attorney General to address in the declaration “all decisions, correspondence, and communications” within the Department about Joy’s whistleblower status.

Turning to the substance of the complaint, it’s easier to see what Joy is alleging in the new, less redacted version released today. Joy’s allegations mostly center on his co-worker Kepner and her alleged proclivity to get too close to sources. That closeness supposedly led Kepner to take from sources things of value, including a painting of her dog and house-hunting assistance from someone related to a source. Although that source is unnamed in the complaint, it’s clear that the allegation is that Frank Prewitt’s wife provided the painting. Additionally, Joy charges that a former source of Kepner’s gave her husband a job as a security guard at the Port of Anchorage.

In the category of inappropriate conduct with sources, Joy also asserts that Kepner ate meals with Prewitt (and apparently his wife) at Prewitt’s home, met Prewitt repeatedly with Kepner’s husband present, and gave another source access to Kepner’s own home when Kepner was not present. Joy says he heard that Kepner golfed with VECO Vice President Rick Smith. To curry favor with VECO CEO Bill Allen—a man who apparently likes women in skirts—Joy alleges that the normally slacks-wearing Kepner wore a skirt on a day that Bill Allen testified. More generally, Joy claims that Kepner talked too much to sources and unnecessarily disclosed matters about the investigation and the FBI’s methods.

Joy’s complaint states that he is alleging “serious violations of policy, rules, and procedures as well as possible criminal violations,” but it’s clear that some of his accusations are much more serious than others. If the FBI brass believes all of these allegations, they will at a minimum harm Kepner’s career even though most of those charges listed so far—particularly those not involving gifts—would not directly aid Ted Stevens in his efforts to get a new trial or a dismissal of the indictment. What can more obviously help Stevens, however, are some other claims made by Joy regarding the ways the prosecution provided access to evidence during Stevens’ trial.

Joy alleges that the prosecution team made explicit decisions to hold back evidence from the defense in three instances that caused Judge Sullivan to chastise the government at the trial. Two appear particularly significant. Joy says that Kepner made the decision to withhold what appears to have been a statement of Allen’s. Joy also alleges that Public Integrity Section Trial Attorney Nicholas Marsh “inappropriately created [a] scheme” to use Rocky Williams’ poor health as an excuse to send him back to Alaska from Washington, D.C. on the eve of trial after deciding not to use him as a witness without notifying either the court or the defense, even though the defense had Williams under subpoena as well. (Williams died in Anchorage on December 30, apparently of liver disease.)

I’ll close with three observations/predictions:

1. The judge is pissed (to use the technical term offered by another attorney observer). Judge Sullivan appears to be concerned that the prosecution has pulled a fast one on him. This concern shows up in another order he issued today allowing the defense to use the new information made public today to file by January 26 a revised motion seeking either dismissal of the indictment or a new trial along with additional discovery and an evidentiary hearing.

2. The newly released version of the Joy complaint and the judge’s strong reaction to his discovery of the prosecution’s handling of that complaint have increased the chances that the judge will order a new trial or dismiss the indictment, but those odds have not reached 50 percent. During the five-week trial, Judge Sullivan showed a pattern of blowing up with dramatic rhetoric when he first learns of prosecution mistakes, thinking it over, and then coming back and imposing a well-considered and lesser penalty. The prosecution is under a microscope now, but that doesn’t necessarily mean that the judge will ultimately smash the government, particularly if the prosecution provides satisfactory explanations/denials of the serious allegations in Joy’s complaint. Recall that we haven’t yet heard the prosecution’s side of the story on the merits—expect a hefty filing with long affidavits within the next few weeks from the United States.

This controversy over Agent Joy’s complaint may slow down the ongoing federal investigations into public corruption in Alaska, but those investigations are likely to continue unless there is strong evidence of misconduct by prosecutors as opposed to just FBI agents.

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