Wednesday, March 14, 2012

It's Coming Tomorrow--Appeals Court Refuses to Delay Release of Special Counsel's Report on Prosecutorial Misconduct in Ted Stevens Case


The court-appointed special counsel's report regarding allegations of prosecutorial misconduct in the Ted Stevens case will come out tomorrow, as a federal appeals court has denied a request to block the release.

The U.S. Court of Appeals for the District of Columbia Circuit has denied the motion for a stay (delay) filed by Eward Sullivan, who assisted in the prosecution of Stevens, a U.S. Senator for almost 40 years at the time of his trial in 2008.    The three-sentence order posted today states merely that Edward Sullivan "has not satisfied the stringent requirements for a stay pending appeal." 

The release tomorrow will come almost three years after the appointment in April of 2009 of Henry Schuelke, the former prosecutor and long-time private attorney in Washington, D.C., to investigate six lawyers involved in the Stevens prosecution.   The trial court took the extraordinary step of naming special counsel to investigate the six prosecutors to see if they should be charged with contempt of court after the Stevens case collapsed in the wake of revelations of failure by prosecutors to share evidence with the defense (a legal process known as "discovery").  

It's been a long wait for a long report.   The Schuelke report reportedly runs 500 pages, and its release tomorrow will come with responses filed by lawyers for "the Stevens Six" that will likely run over dozens if not hundreds of additional pages.    Much has happened in the interim.

The implosion of the Ted Stevens case due to discovery failures triggered a review of other prosecutions arising from the "POLAR PEN" federal probe into Alaska public corruption.    That review led to the Justice Department finding other failures of discovery in the cases of former State Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla) and a shortening of their prison sentences.   

The failures of discovery in the Stevens case also led to a heightened awareness of federal prosecutors' obligations for discovery in criminal cases around the country.

During the almost three-year delay between the start of the investigation and the release of the report, one of those six government lawyers under investigation--Nicholas Marsh--killed himself. After his suicide in September of 2010, Marsh's friends said he was bothered by the delays in the investigations into alleged prosecutorial abuses in the Stevens case.    

Marsh also labored under what his friends described as a "growing sense of dread" that he would be scapegoated for failures in discovery for which he believed he shared responsibility with higher-ups who looked likely to escape blame.    

The caption of the case on today's order indicates that the Justice Department joined William Welch--former head of the Department's Public Integrity Section and supervisor of Marsh and the rest of the Ted Stevens prosecution team at trial--in urging the court to release the special counsel's report.  

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