It’s No Joke—Ted Stevens Walks on April Fool’s Day (Part Two)

Anchorage—

What misconduct does it appear that the prosecutors committed?

The instances of misconduct by prosecutors that caused these convictions to evaporate legally all fell broadly into the category of giving the defense access to evidence under the control of the prosecution. Our system holds prosecutors to special standards not applied to other lawyers who litigate and try cases. Those special obligations flow from the power the government has to bring criminal charges under our system and the protections our law gives to those charged with crimes. The law requires the prosecution to turn over—or “discover”—evidence to the defense in criminal cases, and failure to do so is a discovery violation.

The defense had complained repeatedly about discovery violations during the trial, and Judge Sullivan had excoriated the prosecutors again and again for not following the legal rules and his orders regarding discovery. This process kept going in post-trial litigation, so much so that one Washington correspondent told me that he would not be surprised if at the next hearing the judge ordered the government lawyers to drop down and do 50 pushups.

The controversy over alleged government misconduct accelerated during that post-trial litigation after the uncovering of a complaint by Special Agent Chad Joy, an FBI agent based in Anchorage. This eight-page document alleged numerous errors by Joy’s colleague Mary Beth Kepner during the federal probe into Alaska public corruption.

Two of Joy’s allegations were particularly critical for Ted Stevens’ defense. Joy charged that Kepner—the investigation’s lead agent—decided to withhold a statement of key prosecution witness and long-time VECO CEO Bill Allen that the defense could have used to hurt Allen’s credibility. Joy also alleged that Public Integrity Section Trial Attorney Nicholas Marsh “inappropriately created [a] scheme” to use the poor health of VECO veteran Rocky Williams as an excuse to send Williams back to Alaska from Washington, D.C. on the eve of trial without notifying either the court or the defense after deciding not to use him as a witness. The defense also had subpoenaed Williams, who died in Anchorage two months after the trial ended, apparently of liver disease.

Then came what the Attorney General used as the nail in the coffin—today’s revelation that the new team of government lawyers had discovered notes taken by two prosecutors of a previously unreported pre-trial interview of Allen. Today’s court filing states that these newly uncovered interview notes show that Allen stated then that he could not recall talking with Bob Persons—a Girdwood restaurant owner and friend of Ted Stevens who served as the caretaker of Stevens’ Girdwood home—about giving a bill to Stevens for the renovations VECO employees did at Stevens’ home.

These notes were very problematic for the prosecution. Although the notes showed that Allen couldn’t remember a conversation with Persons five months before the trial, at the trial Allen gave testimony about such a conversation that helped the prosecution and harmed the defense. Allen testified at the trial that Persons told him to ignore a note Stevens wrote Allen asking that the VECO chief send the Senator a bill because “’Ted’s just covering his ass.’” Ted Stevens’ state of mind was critical in the trial, because his receipt of many valuable things—primarily from Bill Allen and/or VECO—that were not paid for and did not show up as gifts or loans on his mandatory Senate disclosure forms was not really disputed by the defense.

The notes are problematic as well because the provision of Allen’s statements about Ted Stevens to the defense has come up repeatedly as a source of discovery issues, both at the trial and in Joy’s post-trial complaint.

Why are these apparent instances of misconduct so important?

As this blog has noted before, prosecutors are supposed to turn square corners. The traditional statement is that prosecutors are expected to strike blows that are hard but fair.

Anchorage attorney Wev Shea, who served as Acting U.S. Attorney for the District of Alaska, has been writing articles for weeks calling the prosecution of Ted Stevens “corrupt” and “unethical.” While the Attorney General’s statement released today was careful not to accuse any particular government lawyer of misconduct, General Holder’s complete disposal of this case shows an acceptance of a dark view of what the trial prosecutors did in this case.

Conservatives sympathetic to Ted Stevens ask what would happen to a criminal defendant who didn’t get to put on a $2 million defense to help him—in the words of Stevens’ lawyers, “Any citizen can be convicted if prosecutors are hell-bent on ignoring the Constitution and willing to present false evidence.” Liberals wonder why those conservatives only seem to worry about government abuse of power when it is applied against someone like them. Both questions are worth pondering tonight.

Why did the trial prosecutors commit this apparent misconduct?

These problems seemed to flow from three causes: the incredible speed with which this trial occurred following the indictment, the discretionary system for discovery in the federal system, and an apparently untempered zeal among the prosecutors to stamp out public corruption.

This blog has commented before on the unusual speed of this trial and the odd effects of that speed. It was apparently Ted Stevens’ personal decision to plead for a trial that started so soon after the indictment that the verdict could come before the election. Ted Stevens was indicted in late July, and the trial started less than two months later. If the defendant had not demanded that the trial begin so fast, it probably wouldn’t have started yet.

The speed of this trial seemed to interact in negative ways with the discretionary system for discovery in the federal system. In Alaska, there’s essentially an “open file” policy in which basically all the evidence the prosecution possesses is turned over to the defense. In the federal system, by contrast, somebody goes over every page of every document and makes a variety of discretionary decisions about whether to give it up. This case appeared to involve thousands and thousands of pages of evidence. Making discretionary decisions in a fevered atmosphere of speed is a recipe for trouble, and this case seems to show that.

If there was some form of malice—as opposed to carelessness or neglect—in these discovery problems, it may have come from prosecutors who wanted to win too much. All good trial lawyers have a keen competitive spirit, but the attorneys in the Department of Justice’s Public Integrity Section sometimes also appear to have a deep desire to smash public corruption by any means necessary. A missionary zeal layered on top of the normal fighting blood can make for a dangerous combination, and that combination may have produced some distorted judgments.

What would have happened in the trial if this apparent misconduct had not occurred?

Ted Stevens’ lawyers confidently suggested today that the jury would have acquitted the defendant if the prosecutors had not cheated: “In essence, the government tricked the jury into returning a tainted verdict against the Senator based on false evidence.”

The answer to the hypothetical question of “What if?” is not so clear, however. Asking whether the prosecutors in the Ted Stevens case would have secured a conviction without engaging in misconduct is like asking whether baseball superstar Barry Bonds would have hit all those home runs if he hadn’t taken the steroids that a lot of evidence suggests that he took. It’s pretty clear his natural skills and clearly clean period of performance would have led him to hit hundreds of homers, but would Bonds have passed Babe Ruth’s legendary all-time record without the aid of performance-enhancing drugs?

Similarly, the prosecution had a strong case and a relatively low bar to clear under the statute. The government presented at trial numerous e-mail messages and other evidence showing that Ted Stevens knew that Bill Allen and people who regularly worked for VECO were arranging for—and performing--a lot of the work at his home in Girdwood, a ski town about 40 miles southeast of Anchorage. While Ted Stevens and his wife paid well over $100,000 for the renovations at his chalet, it’s undisputed that the Stevenses never paid Allen or VECO anything. Similarly, the prosecution showed that Bob Persons and Bob Penney also provided valuable things to Stevens that the Senator did not disclose.

Also easing the government’s burden was the relatively low bar the prosecution had to clear under the relevant statute. Recall that all the government had to show to get a conviction in this case was that Sen. Stevens had received more than about $300 a year in undisclosed gifts or liabilities. Given this low bar, all this evidence would make the case against Stevens difficult to defend against even if the defense had gotten every page of every document in the government’s possession the day the indictment was announced.

Just like most analysts seem to agree that the closeness of the election returns show that Sen. Stevens would have been re-elected if he had not been convicted eight days before, a survey of journalists who covered the trial would likely show that most would say that the jury would have convicted him of at least some of the seven counts even if the defense had all of the evidence in the government’s possession.

The more important point, however, is that the prosecution’s conduct appears to have tainted the trial and the verdict, just like a baseball superstar’s use of steroids taints his records, no matter how much talent he has. Barry Bonds is not going to the Hall of Fame, and the prosecutors of Ted Stevens are not going to see him be sentenced on
any felony convictions.

What does today’s decision mean for the trial prosecutors?

Both the Department of Justice’s court filing and the Attorney General’s statement noted that the issues of prosecutorial misconduct in the Stevens trial have been referred to the Department’s Office of Professional Responsibility for an internal investigation. Although OPR reviews are sometimes inconclusive, you can bet that this one will be watched closely. The trial prosecutors are under a giant microscope, and their position is very unpleasant.

What does today’s decision mean for the defense team?

Despite the grim faces at the defense lawyers’ press conference today, you can bet they were cheering and slapping hands behind the scenes. This is a very big win for Williams & Connolly and the battalion of attorneys and paralegals who worked on this case for the defense. Particularly happy would be Stevens’ lead attorney Brendan Sullivan, who went about 30 years without ever having a client spend a day in jail. That record—incredible for a criminal defense attorney—was broken recently, but with today’s decision Brendan Sullivan is on another streak.

What effect will today’s announcement have on the federal investigation?

Former State Senate President Ben Stevens (R.-Anchorage) and U.S. Rep. Don Young (R.-Alaska) are probably breathing a little easier tonight, as they likely figure that the probe will at least slow down now. (Although numerous media reports have stated that Ben Stevens and Don Young are under investigation in the federal probe into public corruption in Alaska, neither has been criminally charged and both deny wrongdoing.) That speculation is sound, as the Public Integrity Section has only about 25-30 lawyers and three of them—or approximately 10 percent—were involved in the Ted Stevens trial. Along with those three lawyers, the two FBI agents—Kepner and Joy—apparently most active in the probe are also ensnarled in the internal Department of Justice investigation into alleged misconduct.

The Department of Justice may also be more wary of Allen as a witness, and any such wariness would also help at least some of the potential defendants in “POLAR PEN,” the federal investigation into public corruption in Alaska that has run at least four years this month.

Some weeks ago, a former federal prosecutor told me that if the Department of Justice discovered substantial misconduct by prosecutors involved in handling “POLAR PEN,” there was a good chance that the Department would close down the entire federal investigation into Alaska public corruption. I thought his speculation was so wild I did not even refer to it on this blog. I still find his prediction unlikely, but it doesn’t seem so far out in the blue yonder tonight.

What effect will today’s announcement have on Ted Stevens’ legacy?

Two things seemed likely to me when I heard the announcement this morning:

1. Today—on what would have been his 83rd birthday—my father would have called his old friend Ted Stevens and congratulated him on the news.

2. The chances that Ted Stevens’ name stays on Alaska’s largest airport just went up.

I would add that as a legal matter lead Stevens lawyer Brendan Sullivan was correct today when he said the upcoming voiding of the convictions means that Stevens “is innocent of the charges, as if they'd never been brought."

And Ted Stevens himself said in a statement released through his lawyers that “I always knew that there would be a day when the cloud that surrounded me would be removed. That day has finally come.”

As a matter of history, however, the answer may be different. Posterity will weigh the Senator’s half-century of public service to Alaska as well as evidence that came out at the trial and other information that may arise in the ongoing investigation into the conduct of Ted Stevens’ son Ben Stevens. It will be all of us that will have a share in how that legacy is shaped.

So I decided to throw it open to you. What do you think will be the legacy of Ted Stevens, and how will today’s announcement affect that?

I’ll print any answers you want printed subject to some reasonable length limitations. Please let me know if you authorize the printing of the response (even if edited for length) and the printing of your name. To get you started, I will offer this assessment sent to me tonight by a reader of this blog (I’ll print the name if the reader agrees):

“Ted Stevens did a lot for Alaska. Near the end of his career, he accepted a lot of favors from a corrupt contractor named Bill Allen. Stevens probably would have paid for the favors if Allen had billed him, but Allen didn’t bill him and Stevens should have reported the favors on the Senate gift reporting forms. The federal prosecutors had no business indicting him so close to the 2008 elections. He made tactical mistakes by demanding that trial take place before the election, and by testifying in his own irascible way, and a jury convicted him. The voters turned him out of office. Because the federal prosecutors made so many mistakes in how they handled the case, they agreed to vacate the conviction and dismiss the criminal charges. Ted Stevens’ legacy is like Brendan Sullivan’s former client’s, Oliver North’s: he did something wrong, but prosecutors’ errors tainted his trial and his convictions were set aside. That’s not to say that Ted Stevens shouldn’t have reported Bill Allen’s favors on those Senate reporting forms.”

What do you think, folks?