Monday, November 21, 2011

UPDATED WITH MORE NEWS AND SPECULATION--Judge Sullivan Announces Special Counsel Found "Widespread" and "At Times Intentional" Misconduct by Ted Stevens Prosecutors, but Recommends No Prosecution for the Prosecutors


The trial judge in the Ted Stevens case has issued an order summarizing a report by special counsel investigating whether prosecutors involved in that case should be prosecuted for criminal contempt of court.    U.S. District Judge Emmet G. Sullivan states that special counsel "concluded that the investigation and prosecution of Senator Stevens 'were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness...'" 

Judge Sullivan states, however, that Special Counsel Henry F. Schuelke, III does not recommend charging anyone for criminal contempt because the trial judge never gave a specific "clear and unequivocal" order for the prosecutors to follow the law on sharing evidence with the defense (a process known as "discovery" in the law).   

The judge will allow the review of the report by the Department of Justice, "the subject attorneys," and the lawyers for Senator Stevens before deciding how much to release.    Although that review process will run on at least until January, Judge Sullivan's order makes clear his desire to release to the public as much of the report as possible.

Those are the headlines from today's 12-page order.   Now for some details and analysis:

1.   This order and the report it is based on are blistering for those involved with the investigation and prosecution of Ted Stevens.    According to the order, Schuelke and his co-investigator William B. Shields “found that at least some of the concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial.”   Judge Sullivan's order says that special counsel found "significant, widespread, and at times intentional misconduct."

2.    Although the report does not further describe any of the information that was improperly withheld from the defense, it is clear that much of it has not been officially disclosed.    It is also clear that some of that information relates to allegations of sexual abuse of minor(s) by Bill Allen, that person only referenced in the report as "the government's key witness." 

3.    The announced decision not to prosecute any prosecutors for criminal contempt based on the lack of a "clear and unequivocal" order from the trial judge to the prosecutors to follow the law on discovery seems--with all due respect--to be a dodge.    A better way to understand the lack of prosecution comes in the report's use of the word "systematic" to describe the discovery failures.   The collapse of the Ted Stevens prosecution produced an orgy of fingerpointing among the government attorneys involved, and some of those fingers pointed at the cultural attitudes about discovery within the Justice Department's Public Integrity Section.    Veteran Washington lawyer Schuelke may have decided it was too difficult--or unfair--to single out individual prosecutors for prosecution in this situation.  

Additionally, the suicide last year of former Ted Stevens prosecutor Nicholas Marsh may have brought more complications to efforts to hold any government attorney criminally responsible for the misconduct found in the Schuelke report.   Some of the remaining prosecutors under fire seemed susceptible to the temptation to dump it all on the dead guy, and that possible defense might have been a factor in stopping any prosecution of a prosecutor for criminal contempt.   

The judge's order includes a footnote stating "Mr. Schuelke 'offer[s] no opinion as to whether a prosecution for Obstruction of Justice under 18 U.S.C. Sec. 1503 might lie against one or more of the subject attorneys and might meet the standard enunciated in 9-27.220 of the Principles of Federal Prosecution.'"    Although this footnote seems to kick the ball into the Justice Department's court, this blogger says that no prosecutor in the Ted Stevens case will face any prosecution for any offense related to this matter.

4.   The court's order sets out deadlines for a process to release various materials.   Those sealed materials include transcripts and pleadings in the cases of former state legislators Pete Kott and Vic Kohring as well as Ted Stevens.   The order also references materials from the prosecution of former Anchorage businessman Josef Boehm.   That case involved Bambi Tyree, whom Allen is alleged to have had sexual relations with when Tyree was underage.

5.   The judge really wants to release as much as possible of this 500-page report, for which Schuelke and Shields reviewed more than 150,000 pages of documents and conducted  numerous witness interviews and 12 depositions over two and a half years.   About a third of the 12-page court order is devoted to laying out arguments and legal precedents justifying why the report should be made public.    This order sets up a big battle over disclosure, as the Justice Department and some or all of the attorneys whose conduct is scrutinized will not want some of the report released.

6.  In addition to the probe by the special counsel appointed by Judge Sullivan, the Department of Justice's Office of Professional Responsibility ("OPR") has conducted a separate and parallel investigation in its role as DoJ's internal ethics watchdog.    The Associated Press reported today that "a lawyer familiar with the investigation" said that OPR's draft report found that Department of Justice attorneys Joseph Bottini and James Goeke, as well as FBI agent Mary Beth Kepner, "engaged in misconduct" in the Ted Stevens trial.   The AP report has similar information to an NPR report last year.    Although Attorney General Eric Holder told the Senate Judiciary Committee earlier this month that OPR "had just about finalized" its report, the AP reported today that "lawyers familiar with that investigation" said that it remained open.     Whatever the status of the OPR report, it is far more likely that significant portions of the court-ordered special counsel report conducted by Schuelke and Shields will be released publicly than it is that the Justice Department will make available the OPR report.   

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