Wednesday, April 1, 2009

It’s No Joke: The Attorney General Asks the Court to Erase the Convictions Against Ted Stevens

Anchorage, Alaska—

This case is over.

In an astonishing development, the Department of Justice has requested that the court set aside the jury verdicts against Ted Stevens and dismiss the indictment against him with prejudice.

The bombshell came in a three-page filing this morning that cites the Department’s discovery of evidence that the trial prosecutors should have turned over to the defense. Today’s filing says this evidence was uncovered last week by the new team of government lawyers brought in to investigate allegations of prosecutorial misconduct during the trial. The newly discovered evidence casts doubt on the veracity of critical evidence against Stevens provided by key prosecution witness Bill Allen. In the face of that new evidence, the motion filed today acknowledged that one of the government’s own previous filings was “inaccurate.”

There is so much to sort through here that this blog post will be in a question and answer format. This is Part One of a two-part post.

What is the effect of this decision on the guilty verdicts against Ted Stevens that the jury in Washington, D.C. delivered last October?

This case is dead, and the jury verdicts will be quickly voided as a matter of law. The filing this morning is formally couched as a motion by the government in which the prosecution asks the court to set aside the verdict and dismiss the indictment with prejudice, but that is definitely just a formality. In a verdict announced last October, a jury in Washington, D.C. found former U.S. Sen. Ted Stevens (R.-Alaska) guilty of seven counts of failing to disclose gifts and/or loans on annual Senate forms. That case is not only lying on the ground with a stake in its heart, it’s been buried so far under the surface of the earth the world’s best oil and gas driller couldn’t get to it.

Until this morning, the case was in post-trial proceedings before the judge decided post-trial motions and either went to sentencing or granted the defense some relief. That’s still officially true, but Judge Emmet Sullivan will obviously grant the government’s request now. He set a hearing for April 7 at 10 a.m. at which that is almost certain to occur.

Was this decision by the government to kill the case expected?

Not by me. As readers of this blog—and viewers of my C-SPAN TV appearance—will recall, I predicted that Judge Sullivan would ultimately not grant the defense motions and would instead sentence Ted Stevens, thus setting up a lengthy appeal.

So much for that prediction—and so much for my failure of imagination. I never considered the possibility that the Department of Justice would pull the plug on its own case.

It appears that today’s announcement amazed most other observers as well.

So congratulations goes to those who at least predicted that Judge Sullivan would either order a new trial or dismiss the indictment. One was Jeff Levin, a New Hampshire lawyer who told me some weeks ago that he thought that Special Agent Chad Joy’s allegations about the prosecution’s conduct that came out after the trial would lead the judge to dismiss the case.

Why did the Attorney General make this decision to kill the case, particularly after the federal government devoted so many years and so many dollars to this prosecution?

Let’s start with the statement issued this morning issued by Attorney General Eric Holder and then go to the analysis of National Public Radio’s Nina Totenberg, who broke this story early this morning.

General Holder said that based on a “careful review,” he had concluded that “certain information should have been provided to the defense for use at trial.” Based on that conclusion and “in consideration of the totality of the circumstances of this particular case,” he determined that it was “in the interest of justice” to dismiss the indictment and end the case.

Totenberg’s report suggests additional factors in Holder’s decision to kill the case:

1. The increasing drumbeat of allegations of misconduct by DoJ attorneys as well as by an FBI agent would lead to “more ugly hearings” in front of Judge Sullivan.

2. Holder holds a particular place in his heart for the Public Integrity Section, the DoJ unit where the Attorney General began his legal career and the outfit which has handled the investigation and prosecution of Ted Stevens and others caught up in the federal probe into public corruption in Alaska. The two top-ranking attorneys in the Public Integrity Section were among the three Department of Justice lawyers held in contempt by Judge Sullivan in post-trial proceedings. The hearings coming up appeared likely to tarnish the reputation of that unit as well as the Department in general.

3. Holder is well-acquainted with Judge Sullivan, with whom he served on the bench as a fellow judge on the Superior Court of the District of Columbia before they both rose in government, and the Attorney General was disturbed by the harsh denunciations the trial judge has issued against the prosecution team.

4. Stevens is 85 now.

5. Stevens is no longer in the Senate, having been defeated in a re-election bid occurring eight days after the jury returned the verdicts.

6. “Perhaps most importantly, Justice Department officials say Holder wants to send a message to prosecutors throughout the department that actions he regards as misconduct will not be tolerated.” According to sources contacted by Totenberg, Holder “was horrified by the failure of prosecutors to turn over all relevant materials to the defense.”

I would add these additional speculations about today’s announcement. Today’s announcement of the discovery violation uncovered last week could be seen as either the nail in the coffin for Holder or just a post to hang his hat on so as to justify getting out of a case that he felt he had to end.

Additionally--as noted by Jason Zengerle of The New Republic--noted, it was easier for the Obama administration to admit errors that occurred under a past regime than to confess that it itself had made mistakes. This last factor was not a reason for today's announcement, but obviously made it less painful.

Does the decision announced today show that the Department of Justice prosecutors in the Bush administration deliberately made mistakes to help Ted Stevens?

No, and I would not address this question if I did not see it raised so much. The trial prosecutors clearly wanted the jury to convict Ted Stevens. A hidden agenda to go into the tank was not the problem.

Does the decision announced today show that Democratic-leaning lawyers in the Department of Justice made up the case against Ted Stevens out of whole cloth just to get him out of office?

No, and I would not address this question either if I did not see or hear it repeatedly. Under the analysis of anyone who understands government, the case against a sitting U.S. Senator was so important that very high-ranking officials in the Bush administration’s Justice Department—including the Attorney General—must have reviewed the case before authorizing the search warrant on Ted Stevens’ house, let alone his indictment. It is highly likely that President George W. Bush was personally made aware of the status of the case before the search warrant and before the indictment.

Coming up in Part Two: Why did the trial prosecutors commit this apparent misconduct? What would have happened in the trial if this apparent misconduct had not occurred? What does today’s decision mean for the trial prosecutors? What does it mean for the defense team? What effect will today’s announcement have on the federal investigation? What effect will today’s announcement have on Ted Stevens’ legacy?

(UPDATE--Edited to avoid repetition. Thanks, Bob Weinstein.)


hello said...

Great analysis, thanks from a lawyer in a completely separate jurisdiction that also values the rule of law!

nauseousnative said...

As an Alaska Native, an Alaska State resident, and a taxpaying female voter, I am disappointed threefold in the dismissal.

My first thought was how did Stevens bribe the government officials behind the dismissal? He had enough clout to push the trial to start quickly, something that does not happen at any level of the justice system...He's been around a looooong time, long enough to have dirt on quite a few people who may have grown into powerful positions.

I was wondering if you could tell me who was paying for Stevens’s attorneys? With the dismissal does this mean that we the taxpaying "voters" will pay for both the prosecution and the defense fees?

Thank you,
Nauseous Native in Alaska