Status and Likely Outcome of Ted Stevens Post-Trial Litigation (Extended Version)

Anchorage, Alaska—

I have been asked repeatedly what is going on in the Ted Stevens case and what I think will happen next. Fortunately, I have recovered the post I wrote earlier. (Actually, Theresa Philbrick pointed out as kindly as possible that I had plugged the laptop into an inactive outlet, thereby letting the battery run down completely.) Anyway, here goes my best attempt to combine history with prediction:

1. Ted Stevens was convicted by a jury last October. Right after the jury verdict came in, Judge Emmet Sullivan set a status hearing for late February at which it was presumed the sentencing date would be scheduled. The trial judge’s decision reflected the reality that the defense attorneys would file a number of post-trial motions that would ask him to order a new trial or even dismiss the case.

2. The trial judge retains jurisdiction over the case until sentencing, when the case becomes ripe for appeal. Until sentencing, the trial judge retains the power to order a new trial or dismiss the case. (Dismissal would end this case altogether, as jeopardy has attached under the Double Jeopardy Clause.) Because sentencing has not occurred, we are still in the period of post-trial litigation and have not reached the period for appeal. An appeal of the jury verdict would be heard by the appellate court—in this case the U.S. Court of Appeals for the District of Columbia Circuit—and the appeal cannot start until sentencing occurs. (It's admittedly easy to get confused, because some of the likely points on appeal are the same that the defense is pressing now on Judge Sullivan in attempts to get him to order a new trial or a dismissal.)

3. In the period between the jury verdict and the time sentencing normally would have occurred, however, several things have occurred to throw off the schedule. Government witness Dave Anderson wrote a letter to Judge Sullivan asserting that his some of his trial testimony was false regarding an alleged prosecution promise of immunity. In a stunning development, FBI Special Agent Chad Joy—one of the lead investigators in the whole Alaska public corruption investigation—wrote an eight-page complaint alleging misconduct by fellow FBI agent Mary Beth Kepner and by prosecutors. The U.S. Department of Justice has struggled to respond to Joy’s allegations. Infuriated by what he perceived as unjustified delays and questionable statements to the court, Judge Sullivan has held three high-ranking prosecutors in contempt. The Department of Justice has assigned a new team of attorneys to respond to the allegations of misconduct.

4. The next event in court is a status hearing set for April 15, which will be preceded by the filing of a status report by each of the two sides.

5. The smell of blood in the water is strong in the nostrils of Ted Stevens' lawyers at Williams & Connolly, perhaps the nation's premier white-collar criminal defense law firm, which will work every angle to get Judge Sullivan to order a new trial or end the case. Those efforts will take a long time for the judge to sort out, and sentencing will probably not occur before July.

6. Although the possibility of a new trial or dismissal cannot be ruled out and the odds have gone up significantly since Joy’s complaint, the betting here is still that sentencing will eventually occur and the appeal will start.

7. While the appeal is pending, in a white-collar crime case with defendants fitting more of a mold than does Ted Stevens, the Department of Justice would try to use the extra powers that sentencing would confer to try to get Ted Stevens to make a deal. In a more common case, these efforts by the prosecution would include leaning on Ted Stevens to help the government make a case against Ted Stevens’ son Ben. (Former state Sen. Ben Stevens (R.-Anchorage) is a former President of the Alaska State Senate who made hundreds of thousands of dollars in consulting fees while serving as a legislator and whom former VECO executives Bill Allen and Rick Smith have testified that they bribed.) Particularly given what has happened after the trial, however, it is difficult to see Ted Stevens making a deal now that does not expunge the convictions and thus—as Ted Stevens would see it—clear his name. Moreover, there is no sign that either Ted Stevens or Ben Stevens has been cooperating against the other. So a deal between Ted Stevens and the prosecution seems a lot less likely here than in a more run-of-the-mill white-collar crime case.