Wednesday, April 8, 2009

What Happened, What Did It Look Like, and What Does It Mean? (Part One)


The trial judge dismissed the Ted Stevens case as expected, but went on to blast the trial prosecutors’ failures in turning over evidence and to order up his own criminal investigation into that failure.

By all reports, it was quite a hearing yesterday. I was thousands of miles away from that hearing, so what follows is mostly based on the reporting of the Anchorage Daily News, the New York Times,, the Alaska Public Radio Network, National Public Radio, the Associated Press, the Washington Post, and the Los Angeles Times.

Let’s take the announcement, the atmospherics, and the ramifications in order.

The Judge Drops Another Bomb on the Shellshocked Justice Department

U.S. District Court Judge Emmet Sullivan announced that he had asked a private attorney to investigate the failures of the trial prosecutors to turn over evidence to the defense as legally required. That attorney will be Henry “Hank” Schuelke, a former Assistant U.S. Attorney who served as a prosecutor and a judge in the Army. (More on Schuelke in a later post.)

Judge Sullivan blistered the Department of Justice for its work in the case, stating that “In 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.”

The judge listed 10 specific instances of apparent missteps in the handling of evidence and witnesses by the trial prosecutors. (The best catalogue of the judge’s list is in the Anchorage Daily News, which has the most comprehensive coverage of the hearing.)

This selection of a special prosecutor by a trial judge to investigate charges of criminal contempt of court is extraordinary but explicitly allowed under Rule 42 of the Federal Rules of Criminal Procedure. As the New York Times pointed out, Schuelke will operate under the court’s authority and will gather evidence before recommending to the court whether to seek charges against six named prosecutors.

The six prosecutors under this newly announced probe include the five government lawyers who worked on the Ted Stevens trial: Public Integrity Section trial attorneys Nicholas Marsh and Edward Sullivan and Alaska-based Assistant U.S. Attorneys Joe Bottini and James Goeke. The other two lawyers under investigation are William Welch and Brenda Morris, who are the top two attorneys in the Public Integrity Section, which ran the investigation. Morris did double duty as the lead trial prosecutor as well as the Section's No. 2 lawyer.

The judge said “I have not pre-judged these attorneys for their culpability, and I hope the record will find no intentional obstruction of justice.”

Judge Sullivan's announcement yesterday means that there are two investigations of the Stevens trial prosecutors now—the one run for the last six months by the Department of Justice's Office of Public Responsibility (OPR) and the new one conducted by Schuelke. (The Anchorage Daily News also reported that the judge also stated that he would refer a complaint to federal prosecutors in Washington, D.C. that key prosecution witness Bill Allen's attorney signaled him to answer during Allen's testimony. Allen's attorney has denied the allegation.)

The judge’s blistering denunciation of Department of Justice failures in providing discovery the case of a federal detainee at Guantanamo Bay as well as that of the former 40-year U.S. Senator. The Associated Press reported that “During Tuesday’s hearing, Sullivan read a primer on criminal procedure, the kind of rudimentary lecture students normally receive during their first year of law school.” (Via Scott Horton’s blog in Harper’s magazine.)

Judge Sullivan’s denunciations and announcement of a special prosecutor to investigate prosecutors may affect a broader range of cases than just that of Ted Stevens. reports, for example, that federal judges are increasingly “fed up” with what they see as prosecutorial misconduct and may be less likely in the future to accept representations of government attorneys in criminal cases.

Next: What was it like in the courtroom?


Eric Rasmusen said...

Thank you for your good reporting on this trial. I hope you keep it up even though the focus is off Alaska and on Washington people.

Would you care to speculate on what would have happened if Holder hadn't pulled the plug, and Stevens had been prosecuted a second time? Would the prosecutorial misbehavior in the first trial have been admissible?
Would the new exculpatory evidence by itself have doomed the case?

Would the prosecution have dropped the house renovations and just focussed on the little stuff--the furniture, grill, massage chair, etc. -- which was so much more plausible a case?

hello said...

Thank you for your coverage and analysis. This non-Alaskan,non-DC lawyer appreciates it.

Cliff Groh said...

You're welcome, Eric Rasmusen, and thanks for your kind comments.

As to a re-trial, as a general matter I do not believe that the prosecutorial misconduct in the first trial would have admissible in a retrial. A number of observers believe that the government could have won a retrial, although opinion is obviously divided.

It strikes me that in a retrial the prosecution would probably have wanted to keep the home renovations in the case along with the other things of value.