Sunday, December 28, 2008

Discovery Discussion--and How Criminal and Civil Cases Differ


A commenter (thanks, Alaska) asked questions about how discovery works, and I am posting my response here because these questions seem to come up frequently.

Discovery is a process required under American law in which one side gives information on the case to the other side. Discovery rules vary by jurisdiction.

In criminal law, discovery was traditionally one-way: The prosecution gave evidence to the defense, but the defense gave nothing to the prosecution. Recently, however, some jurisdictions--including Alaska--have required the defense to provide some discovery to the prosecution. It is still true, though, that the prosecution provides much more information to the defense than the other way around.

The list of what discovery the prosecution is automatically required to provide under Alaska law includes copies of any written and recorded statements made by the defendant; any papers or documents which the prosecution intends to use at trial; any papers or documents which were obtained from or belong to the defendant; and any material or information which tends to negate the guilt of the defendant as to the offense.

An example of what Alaska law requires the defendant to produce to the prosecution is the name, address, and written report of any expert witness. Another example of the limited discovery from the defendant required under Alaska law is that the defendant must give the prosecution advance notice of defenses including alibi, entrapment, and duress.

As this blog has discussed before, the federal rules for discovery require less discovery from the prosecution than Alaska law does.

The prosecution in criminal cases--whatever the jurisdiction--generally has to provide automatically more information than any party has to provide in civil cases of any kind. There generally is a different discovery process in civil matters such as employment mediations than exists in criminal cases.

There are other differences in the ways that criminal cases and civil cases proceed. Civil cases often drag on a long time, while speedy trial rules keep all but the most serious and complicated criminal cases moving along much faster. Civil cases tend to feature depositions and written requests like interrogatories and requests for production. A higher percentage of criminal cases are tried than civil cases.

After handling both kinds of litigation, I have said that lawyers are always preparing to try civil cases but somehow the trial almost always gets derailed by a settlement or some other resolution sort of trial. Attorneys in criminal cases, however, did not get to prepare as much but are often actually going to trial. This is particularly true with misdemeanors. Lawyers handling felonies--particularly a very well-financed team like the attorneys at Williams & Connolly in white-collar crime cases--often do have more time to prepare more like lawyers in civil cases.

Tuesday, December 23, 2008

A Whistleblower's Complaint Fuels the Defense's Fire


Ted Stevens just got the biggest Christmas present he will receive this year.

An FBI agent who has worked on the Alaska public corruption investigation has alleged that at least two members of the prosecution team against Sen. Stevens engaged in various acts of misconduct.

The unnamed FBI Special Agent states in a complaint seeking whistleblower protection that “I have witnessed or learned of serious violations of policy, rules, and procedures as well as possible criminal violations.”

The alleged misconduct mostly falls into three categories:

1. Specific acts that prejudiced Stevens in his trial. The complaint charges that one or more federal employees intentionally withheld discoverable materials from the defense and schemed to prevent an important witness—VECO employee Rocky Williams—from testifying after the prosecution determined that his testimony would be unfavorable.

2. Improperly close relationships between federal employees and cooperating witnesses in the ongoing criminal investigations into Alaska public corruption. These allegations include taking artwork, getting help in getting a job for a federal employee’s relative, and accepting house-hunting assistance from a confidential source’s relative.

3. Procedural mistakes in handling paperwork. The whistleblower agent’s complaint includes allegations that the FBI and the Department of Justice’s Public Integrity Section have not properly processed boxes of materials collected during the Alaska investigation.

The allegations appear in a complaint prepared by an unnamed FBI Special Agent to facilitate a request for whistleblower protection against retaliation at work, and the Department of Justice filed the document with the court. The complaint is public because U.S. District Judge Emmet Sullivan ordered it released late yesterday afternoon.

The heavily redacted version of the complaint released publicly does not name either the whistleblower or the people the agent is complaining about. Some insights are available, however, through a close reading of the eight-page, single-spaced complaint.

The complaint says that the whistleblower agent made the complaint in part because a book mentions that FBI agent multiple times. Cooperating witness Frank Prewitt published this September a book about his role in the Alaska public corruption scandal that discusses at length the actions of two FBI agents: Mary Beth Kepner and Chad Joy. The heavily redacted complaint says “_________ drew and provided _____ large original drawing of _________ dog as a gift.” Prewitt’s book says that Kepner told Prewitt that her supervisor had met with her regarding a dog portrait that Prewitt’s wife had given to Kepner as a Christmas present, a portrait that Prewitt’s book says his wife painted.

This whistleblower’s complaint is highly significant. It hurts the prosecution because the charges come from the inside. The whistleblower agent states that the agent has worked for years on the Alaska public corruption investigation (codenamed “POLAR PEN,” apparently because—as the Anchorage Daily News noted—the probe started by looking into private prison lobbying efforts). This complaint is in an entirely different league from dark speculations, innuendo, or fulminations on appeal coming from a team of lawyers. For the defense, this complaint is like having a defector walk into your country’s security service with sensitive secrets. For the prosecution, it’s never good to have a key employee with extensive knowledge of the case switch sides on you and blow the whistle.

The complaint is also damaging to the prosecution because some of the allegations against government agents either mirror the actual charges against Ted Stevens or track the defense’s repeated complaints during the trial. As Judge Sullivan noted in his 29-page order directing the release of the complaint, the prosecution’s proof of Stevens’ guilt at trial included evidence that the Senator had accepted artwork and help in getting a job for a relative. And both during and after the trial the defense has relied on charges that the prosecution had repeatedly hidden the ball to request either a dismissal or a new trial.

Although the release of this whistleblower’s complaint is the best news Stevens had had in a while, we have not heard the government’s response to these allegations. The Department of Justice has presumably been conducting an internal investigation of this complaint, which originated as a document aimed at getting whistleblower protections for an employee. The government’s response to these allegations may include denials as well as aspersions on the motivation of the employee making the complaint.

The defense received an unredacted copy of the complaint last week and has already jumped on it. A new motion for dismissal or—alternatively—a new trial appeared less than an hour after the release of the complaint. The aggressive team at Williams & Connolly had already filed several post-trial motions seeking dismissal, a new trial, and/or an evidentiary hearing. One of the grounds relied upon by the defense motions is a letter from prosecution witness Dave Anderson alleging that the prosecution suborned perjury. (The prosecution has responded at length to deny Anderson’s allegations. The government contends that a person identifiable as former legislator Jerry Ward—the father of Anderson’s girlfriend—has been manipulating Anderson in an attempt to prevent prosecution of Ward.)

Going back to the whistleblower’s complaint, much of the document centers on allegations that at least one of the investigators got too close to a half-dozen sources. Convicted briber and star prosecution witness Bill Allen is the only one of those sources named in the redacted version of the complaint, but the evidence strongly suggests that Prewitt is another of those six.

These allegations raise the age-old conflict between experience and coziness. Spending a lot of time with people will help gain information and trust, and some of that is natural in any situation. On the other hand, certain relationships call for an arms’ length distance—such as that between FBI agent and cooperating witness.

The release of this complaint is rife with implications. It delays the sentencing and appeal process in the case of Sen. Stevens. Given Stevens’ strong interest in clearing his name and the boost that this complaint will give his lawyers’ efforts to do so, the complaint’s release may make it even less likely that he will seek a pardon from outgoing President Bush before January 20th.

Attorneys for others in the crosshairs of the ongoing federal investigation have to be licking their lips with glee. Release of this complaint will likely open the door to more disclosure of the federal agents’ interactions with Allen and other cooperating witnesses like Prewitt. Those already convicted at trials may well add these allegations to their appeals, and those not yet charged might see the probe slow down as the Department of Justice deals with these allegations.

Once again, the complaint offers only one side of what in some places sounds like a list of objections to a co-worker’s approach. Although the release of this complaint is just the latest in a series of self-inflicted wounds suffered by the government in the Ted Stevens case, we will learn a lot about how serious this injury is when the government files its response to the latest defense motion.

Tuesday, December 9, 2008

Rod Blagojevich Shocks This Blog Back Into Action


Like the rest of those who care about law and politics, your blogger sits agog at the charges announced against Gov. Rod Blagojevich, Democrat of Illinois. It's been all over the news today--the story of a Governor allegedly so dedicated to selling his office that he essentially put up for auction the U.S. Senate seat vacated by Barack Obama even after Blagojevich had reason to know that the feds were tapping his phones. In the words of U.S. Attorney Patrick Fitzgerald, it was “a political corruption crime spree.”

Hubristic, stupid, insane—commentators’ characterizations are numerous for this man who muses about running for President in 2016 even after he knew key associates were talking to federal prosecutors and he was under a Department of Justice microscope.

This blogger was struck by the similarities of this Illinois scandal with some of what we have seen uncovered in the federal investigations into the Alaska public corruption scandals. Like Gov. Blagojevich, Rep. Tom Anderson--an Anchorage Republican who served in the Alaska State Legislature--appeared to keep committing crimes even after each of them knew the feds were watching. (Anderson had even been a cooperating witness—that is, a person who wires up at the FBI’s direction in phone conversations and meetings with unsuspecting suspects—before backing out on his deal and doing unusual legislative favors for Bill Allen of VECO, the corporation that had paid Anderson tens of thousands of dollars in consulting fees.)

And as occurred in Alaska with several legislators, the federal government apparently has evidence of the Illinois Governor and his chief of staff committing crimes on tape. In both Alaska and Illinois, the evidence was unusual because in many public corruption cases the taped evidence consists of people admitting that they had committed crimes in the past, not of them actually doing it contemporaneously. Such contemporaneous evidence—catching people in the act on tape—shows that the investigation is long-running and that the perpetrators are unusually clueless.

A final irony common to the investigations in both states is a high degree of formal education among the public officials caught. Every one of the five public officials convicted in the Alaska public corruption scandals so far has at least one advanced degree, and three of them have law degrees. Both the Illinois Governor and his chief of staff—also charged today—are lawyers. Blagojevich was a prosecutor and a Member of Congress before he ran for Governor as a reformer in reaction to the record of his predecessor, who now sits in federal prison for bribe-taking and other crimes.

Illinois has a sorry history of public corruption. A number of municipal governments—including Chicago’s—have had unfortunate problems with dishonesty, and the last 50 years has seen two of the Land of Lincoln’s Governors go to prison for crimes committed while in office and a third incarcerated for offenses committed after his term in office. In 1970, $800,000 in cash was found in the hotel room of the Illinois Secretary of State when he died—with some of it stuffed in shoe boxes—a fact some thought odd given that in a lifetime of public service he had never earned more than $30,000 a year. (One politician cracked that “It will take a big man to fill his shoe boxes.”)

This terrible tradition in Illinois seems linked to both the state’s historically lax campaign finance laws and an ingrained culture of corruption that led elites in both political parties to expect that public officials would steal. Alaska would do well to try to avoid both of those contributing factors.

Administrative Note: I’m back in Alaska and back posting. Look forward to discussions of the post-trial motions of Ted Stevens and the pre-trial appeal of Bruce Weyhrauch, among other hot topics.

Monday, November 24, 2008

The Jurors Speak

Berkeley, California—

As an earlier post noted, several jurors in the Ted Stevens trial have been speaking to the press. Their comments shed light on the effectiveness of the strategies and tactics the prosecution and defense used in the five-week trial on charges of failure to follow Senate reporting requirements on gifts. (Thanks to Del Quentin Wilber of the Washington Post, Jesse J. Holland of the Associated Press, Joe Palazzolo of Legal Times, and Colleen Walsh—a juror who has her own blog called “juror 11 explains all” at

Here are the major points that come out of the jurors’ remarks:

1. Ted Stevens hurt himself by testifying. "He looked fragile for most of the trial, and then he testified, and, man, he became this lion," Walsh told the Washington Post. "I thought, 'Wait a minute, if the defense is trying to portray this man as a sympathetic character who didn't know what was going on in his life, why did they put him on the stand and he could recall everything that happened except the gifts?' "

To the two jurors and the two alternates that the Washington Post interviewed, while on the witness stand the Senator “came off as evasive, arrogant and combative, and his answers did not jibe with the evidence.”

Interviews identified at least four statements by Stevens that jurors found incredible:

a. He said that he believed that two employees of the now-defunct oil-services giant VECO that worked on his Alaska home renovation project—Rocky Williams and Dave Anderson—were moonlighting for him or another contractor while laboring on the remodeling.

b. He said that a $2,700 massage chair he received was just a loan, although it was still in his Washington home seven years after he got it.

c. He said that he had not returned items that he had not asked for and in most cases he did not want, including furniture, a professional gas grill, and a salmon statue.

d. He said that even though long-time VECO CEO Bill Allen kept giving Stevens things Stevens did not want, he never changed the locks on the chalet in Alaska to prevent the oil-services titan from putting even more things in the home.
Walsh told the AP that another aspect of the testimony not helpful to Stevens was that “he was kind of demeaning to the lawyer”—showing that Stevens’ aggressive jousting with lead prosecutor Brenda Morris was counterproductive.

“It was kinda interesting to see him shoot himself in the foot,” said Brian Kirst. An alternate who did not deliberate after sitting throughout the trial, Kirst has spoken about the deliberations and the verdict with friends on the panel.

2. Ted Stevens’ frail appearance during the trial probably helped the defense more than all the impressive character testimony his lawyers offered. The defense was that Stevens did not keep track of the renovations to his home and did not stay on top of the household finances, so he was not aware that VECO or Allen had provided much of the work on those renovations without being paid for it. Jurors said the way Stevens sat silently at the defense table for almost five weeks while listening to the testimony on headphones tended to support the notion that he was an elderly grandfather type who relied on others to handle many of his affairs. This image was of course destroyed by the belligerence and detailed memory that the Senator showed on the stand.

The star-filled list of character witnesses—including former Secretary of State Colin Powell—did not, by contrast, make any difference with the jury in its view of the case. Walsh told Legal Times that “We really liked Colin Powell, but the facts still said that [Stevens] got gifts and didn’t report them.” The character testimony never even came up during deliberations, according to Walsh’s comments to Legal Times.

3. Catherine Stevens’ testimony did not help the defense. The defense relied heavily on the theme that Sen. Stevens had assumed that his wife Catherine was responsible for getting and paying the bills for the home renovation, which would mean that he did not knowingly conceal the fact that Allen had arranged for VECO to do tens of thousands of dollars of work on the house.

Catherine Stevens’ appearance on the stand, however, did not advance the jury’s acceptance of this critical defense theme. The jurors apparently zeroed in particularly on her statement that she had not gotten a contract with the construction company she believed was doing most of the work as well as on her incessant complaints about the quality of the work. According to the Washington Post, “Jurors realized she was not closely supervising the project and ignored her testimony….”

4. The taped comment regarding jail time hurt. The prosecutors played a taped phone call that Allen initiated at the feds’ request after he had been confronted and agreed to cooperate with the government’s investigation. In the call, Stevens told Allen that the worst they could expect was “a little time in jail.” During closing arguments, lead defense attorney Brendan Sullivan contended that listening to all the FBI tapes of the Stevens-Allen conversations played at the trial showed that the comment referred to possible exposure over campaign contributions, not the unreported gifts that Stevens was charged with in this case.

This explanation was unavailing, as two jurors told the Washington Post that Stevens’ comment was a telling admission.

5. The defense attorneys’ apparent beliefs that Juror #9 was relatively favorable to the defense and that Juror #11 was likely to be pro-prosecution were both correct. The first full day of jury deliberations, the rest of the jury asked that the judge remove Juror #9 for being disruptive and unable to follow the instructions. This development was widely seen around the courthouse as helpful for the defense. Juror #9 expressed the view that Stevens could not be convicted for not reporting gifts he had not wanted in the first place, and also said that she was concerned about sending the Senator to prison. These reservations did not of course prevent that juror from ultimately convicting Stevens, of course. Juror #11—Walsh—told Legal Times that another juror responded to the first concern by saying “If you get a sweater for Christmas that you don't like, and you don't return it, you still got a gift even if you hate the sweater.” As to the second issue, the Washington Post reported that Walsh said the other jurors told Juror #9 that deciding on punishment was the judge’s job, not the jury’s.

After Juror #4 (Marian Hinnant) left during jury deliberations, the defense’s stated preference was either to wait for that juror to return or to go with 11 jurors rather than adding an alternate to replace Juror #4. It was public information that such alternate would have been Juror #11—Walsh—who sat through the evidence and the arguments before being put on standby status before deliberations started. Speculation was that one of the defense’s concerns about adding the alternate was that Walsh would tend to favor the government, and the jury did return guilty verdicts on all counts in less than six hours of deliberation after the judge installed Walsh in place of Juror #4.

6. The jurors’ acceptance of the government’s case was shown by the way that individual jurors parroted lead prosecutor Brenda Morris’s characterizations of the evidence. It’s a trial lawyer’s dream for jurors to see the case so much the way the lawyer wants them to see it that the jurors describe the case in the words the lawyer has given them. Brenda Morris got to that point. Walsh repeated Morris’s description of Stevens as a “lion,” turning against the defense the statement by Sen. Orrin Hatch in his character testimony for Stevens in which he called the Alaska Senator a “lion of the Senate.” Similarly, Morris had said in her closing argument that Catherine Stevens “is still recovering from the bus he threw her under” and another juror told the Washington Post that Catherine Stevens did not “get the memo about getting thrown under the bus.”

7. The judge’s criticism of the prosecutors for failing to disclose some evidence to the defense as legally required did not affect the jury’s verdict. During the trial, Judge Emmet Sullivan repeatedly lambasted the government’s lawyers for failing to meet their obligations to turn over evidence to the defense. The court excluded some evidence from the trial as punishment for some of those failures, and gave the jury an instruction that it could not consider some evidence because the government had failed to meet those discovery obligations. With the exception of that one instruction, however, all of the court’s criticism of the prosecutors occurred outside the presence of the jury, and the little bit of it that was given to the jury did not seem to make a difference to the jury’s decision. Walsh told Legal Times that this one instruction was never discussed, except in passing, as the jurors read the instructions at the beginning of deliberations. “We were told to focus on the facts. That’s what we did,” Walsh said.

A final observation reflects the unusual twist that one juror is actually blogging about her experiences in the trial. That would be Juror #11, who sat through all the evidence and argument and was then excused before deliberations started. Juror #11—now revealing herself to be Walsh, a program assistant for a church—was named Alternate #1 and was brought back to join the deliberation in place of Juror #4, who had left to go to horse races in California.

Walsh is now walking through the trial on her blog. The blog is colorful—she reveals that she gave pop-culture nicknames to the lawyers like “Mr. Burns” for Brendan Sullivan, “Rosie Perez” for Brenda Morris, and “Perfume McPhee” for prosecutor Nicholas Marsh (for wearing excessive cologne one day).

Despite its fun, Walsh’s blog is a development that has got to disturb the prosecution. It’s one thing to give brief interviews to the press, as some other jurors have done in this case and in previous cases. It’s another thing to give a detailed recounting of the evidence, which can trip up even a prolific note-taker like Walsh appeared to be.

She has already made significant factual errors in describing a meeting recounted by the trial’s first witness, VECO employee John Hess. Walsh states on her blog that Ted Stevens met at the Double Musky restaurant with Bill Allen and Hess to review plans drawn up for the home renovation project, and also strongly suggests that Bob Persons—the Double Musky’s owner and Stevens’ eyes and ears on the remodeling—was present at the meeting. Actually, the meeting was at Jens’, a restaurant in midtown Anchorage, and Persons was not present.

Courts traditionally don’t want to know too much about what happens in jury rooms, and the prosecutors would certainly be happy if Walsh found herself too busy to keep going with her blog.

Administrative Note: As this post’s byline suggests, I’m traveling. I’m also visiting relatives and friends. Posting is likely to be lighter than usual until my return to Alaska on December 5. Happy Thanksgiving.

Thursday, November 20, 2008

Will Ted Stevens Take a Pardon or Fight on with His Appeal?

Portland, Oregon—

As noted earlier this week, Ted Stevens has not ruled out seeking a pardon from President George W. Bush. The pardon would wipe out his felony convictions and eliminate the risk that District Court Judge Emmet Sullivan would sentence him to prison.

A pardon would not reverse the convictions, however—it would just erase them. As such, a pardon would not provide Stevens with what he seems to want most, which is a clearcut vindication of his innocence through a successful appeal that would allow Stevens to say that his name had been cleared. (This assumes that a successful appeal would not be followed by another trial and another conviction—which is a tricky assumption.)

Timing is also an issue. Stevens’ opportunity for a pardon would appear to evaporate with President Bush’s departure from office on January 20. Stevens cannot begin his appeal until after his sentencing, which will not occur before a status hearing set for February 25. (Another assumption here: This blog predicts that Judge Sullivan will not overturn the jury’s guilty verdicts, and will instead sentence Stevens and thereby let him proceed with his appeal.)

The above analysis leads to two questions:

1. Will Ted Stevens take a course that most people convicted of felonies would think was insane, and turn down the opportunity to get a pardon so that he could pursue his appeal?

2. In 20 years, what will be remembered most: The impressive record of achievement in public service over more than five decades—including 40 years in the U.S. Senate—or the felony convictions that contributed heavily to the end of his career?

Ted Stevens and the Senate Bid Goodbye to Each Other

Portland, Oregon--

This morning saw sad and moving tributes to Ted Stevens as he spoke on the Senate floor for the last time.

It was a difficult end to a 40-year Senate career coming the day after Stevens conceded defeat in his bid for re-election.

Stevens Reviews His Contributions to Alaska and the Nation

Stevens laid out what he had done for Alaska in helping to take it from basically “an impoverished territory” to a “great state.” Stevens said “Where there was nothing but tundra and forest, today there are now airports, roads, ports, water, and sewer systems, hospitals, clinics, communications networks, research labs, and much, much more.”

Along with these contributions made primarily through federal appropriations obtained by Stevens, the longest-serving Republican Senator ever highlighted his role in important Alaska-focused legislation such as the Alaska Native Claims Settlement Act of 1971, the 1973 law allowing the construction of the Trans Alaska Pipeline, and the Magnuson-Stevens Act in 1976.

“To hell with politics. Just do what’s right for Alaska,” was the motto Stevens said that he tried to follow throughout the four decades in the Senate.

Stevens also said that he was proud of his work on military spending, particularly in his role in sharing leadership of the Senate Appropriations Committee’s Defense Appropriations Subcommittee with his “brother” Sen. Daniel Inouye, D.-Hawaii.

At the end of his prepared speech of close to 1,500 words, the Senator made only oblique reference to his conviction the week before the election of seven felony counts for violation of financial disclosure requirements.

Stevens said that “I look forward with a glad heart and with confidence in [God’s] justice and mercy….I still see the day when I can remove the cloud that currently surrounds me.”

Other Senators Take Turns Praising Stevens’ Career

Following a lengthy standing ovation from every Senator on the floor, more than a dozen
Senators spoke about Stevens’ contributions. The comments ranged from fellow Alaska Republican Lisa Murkowski’s straightforward cataloguing of specific ways the man called “Uncle Ted” had improved Alaskans’ lives (such as bringing a washeteria to Golovin and eliminating honey buckets from a number of Alaska villages) to jokey anecdotes like those of Kansas Republican Pat Roberts, who noted that at least one of Stevens’ staff members called him “the Mad Penguin” behind his back.

The most poignant comments came from the long-time colleagues who seemed to be cheering up the man as well as celebrating him. Hawaii Democrat Daniel Inouye said “Stand tall, Ted,” and told him that someday Alaska Natives would be singing songs of praise for him.

“We all make mistakes,” said West Virginia Democrat Robert Byrd. “I have made more of them than I have hair follicles.” On his 91st birthday, Byrd was one of several Senators crying on the floor during the hour or more that the tributes consumed.

Politics Can Bring a Lot of Strangeness

The scene was odd as well as sad. The first two speakers coming after Stevens were the two party’s leaders in the Senate, Democrat Harry Reid of Nevada and Republican Mitch McConnell of Kentucky. Reid spoke movingly of Stevens’ fine personal qualities, and McConnell said that no Senator in history had ever done more for his state than Stevens had done for Alaska.

Reid had announced before the election that Stevens’ felony convictions meant that he would be forced to leave the Senate if he were to be re-elected, however, and McConnell had called for Stevens to resign. Only two days before the hour of tributes on the Senate floor, there were reportedly enough votes among Senate Republicans to kick Stevens out of that body’s GOP caucus. If he had been re-elected, all of his colleagues would have had to make a difficult vote on expelling Stevens from the Senate if he had been re-elected. This morning’s proceedings had the feel of a funeral: As much as they were sorry for Ted Stevens personally and genuinely impressed by his work, a number of Senators in both parties clearly seemed to be glad that they could honor him after Alaska voters had spared them the tough decision on whether to keep him politically alive.

Tuesday, November 18, 2008

Tough Times for a Tough Man


Ted Stevens has this evening lost the U.S. Senate seat he has held for 40 years. His Senate Republican colleagues postponed a vote this morning about kicking him of his party’s caucus, correctly guessing that the voters would not re-elect him and thereby let them off the hook on a difficult decision. Jurors are speaking out and suggesting that his own testimony might have been the biggest factor in their conviction of him on seven felony counts last month.

It’s a very sour 85th birthday for a man who has given so much to the Alaskans he has served for four decades in the Senate and for years as a state legislator, federal prosecutor, and U.S. Department of Interior official before that.

“I haven’t had a night’s sleep for almost four months,” Stevens told reporters this morning. “I wouldn’t wish what I’ve been through on anyone, [even] my worst enemy.”

The Election Results: Begich Beats Stevens

The Anchorage Daily News and the Associated Press called the election late today for Democratic challenger Mark Begich, and the Anchorage Mayor has declared victory over Stevens. Begich is more than 3,700 votes ahead with only about 2,500 votes left to count.

That lead is more than a percentage point of the vote in low-population Alaska, and the margin exceeds the margin that would entitle Stevens to a state-funded recount. Although Stevens or the Alaska Republican Party could ask for a recount that they paid for, the Daily News has pointed out that Alaska’s move to mostly machine balloting has meant that recent recounts have only produced slight changes in the final tally.

Begich’s victory over Stevens represents a substantial turnaround in two weeks. The morning after Election Day, Stevens led Begich by about 4,000 votes with 99 percent of the precincts reporting, which means that there has been almost an 8,000-vote swing against the veteran Senator in the absentee, early, and questioned ballots that have been counted since then.

The news cheered Democrats around the country by giving them a 58-vote majority in the Senate, with a recount in Minnesota and a runoff election next month in Georgia that still might give the Democratic Party a filibuster-proof 60 votes.

Ted Stevens’ Legacy in Alaska and in Congress

The biggest change of all, however, is the stunning fall of Stevens. He was “Uncle Ted” on the Last Frontier, the man who brought hundreds of billions of federal dollars back to the state, so much that federal funding in Alaska was often called “Stevens money.” He has made major contributions to Alaska’s government, economy, and society in legislation ranging from the Alaska Native Claims Settlement Act to the bill providing for the construction of the Trans Alaska Pipeline. The Anchorage airport—by far the state’s largest—is named after him, and a civic group named him “Alaskan of the Century” in 2000. His vote-getting prowess was such that Stevens at least once won every precinct in the state.

Stevens’ longevity, hard work, and ability had made him a Capitol Hill powerhouse as well as an Alaska icon. He was once third in line for the Presidency, and while he served as Senate Appropriations Committee Chairman some saw him as the most powerful Member of Congress.

The Generational Split in Views of Stevens

The 46-year-old Begich said that his defeat of Stevens—38 years his senior—represented a generational shift in Alaska politics, and exit polling did show that Begich did much better among voters under 30.

Although there is less precise data about sentiments in the Senate, it did seem that there was something of a generational difference in attitudes towards their long-time colleague as well. It has been Sen. Jim DeMint, a South Carolina Republican who has been in the Senate only since 2005, who has been pressing the hardest for Stevens’ removal from the Republican caucus after his felony convictions. The Alaska Republican’s fiercest defender in the Senate, on the other hand, is his close friend Sen. Daniel Inouye, D.-Hawaii, a fellow World War II veteran who has served even longer in the Senate than Stevens.

What had to be galling to Stevens, though, was that those Senators who suggested that his convictions meant that he had to leave the body included long-time colleagues like Arizona’s John McCain and Kentucky’s Mitch McConnell. Observers reported that a number of Senators in both parties—including some veterans—were privately rooting for Alaska’s voters to keep Stevens from returning to the Senate so that they would not have to face difficult votes on expelling him from the Republican caucus or the Senate itself. One long-time Alaska politician who contemplated the situation said that he was reminded of the old saying “If you want a friend in Washington, get a dog.”

The Jurors’ Comments on the Trial: Ted Stevens Taking the Witness Stand Was a Big Mistake

If Stevens hadn’t been convicted eight days before the election, the polls and the closeness of the vote count both suggest that he would have won the election and remained in good standing among his Senate colleagues. Some of those jurors who convicted him have been talking to the Washington Post and the Associated Press over the last few days, and their comments have got to rub the salt in deeper.

There is a longer post to come on what those jurors are saying, but the nickel version is:

1. Ted Stevens hurt himself by testifying.

2. Catherine Stevens’ testimony did not help her husband’s cause.

3. Stevens’ statement to Bill Allen caught on an FBI tape that they might have to serve a little jail time was harmful to the defense.

Stevens keeps announcing that the judicial process needs to run its course, and that process would include a motion to overturn the verdict and then an appeal. With a status hearing on setting the date for the sentencing put off until February 25, the entire judicial process would run perhaps two years as his skilled and high-priced defense team tries to take the case all the way to the U.S. Supreme Court.

Is There a Pardon in Ted Stevens’ Future?

There was a straw in the wind today that Stevens might have a shorter timeline, however. This morning, the press reported that he had denied that he would seek a presidential pardon from President Bush. Later in the day--but before it became clear that Stevens had lost his reported that Stevens had clarified that his response to the question of whether he would seek a pardon was “No comment” rather than “No.”

Monday, November 17, 2008

Lies, Racehorses, and the Wayward Juror


Red Smith was right: “Reality has strangled invention.”

And although the old-time sportswriter was speaking about the New York Giants’ stunning victory in the baseball game featuring “the Shot Heard ‘Round the World,” that horseracing fan would particularly appreciate the latest turn in the trial of U.S. Sen. Ted Stevens.

Background: The Juror Who Left

The juror who froze up one of the country’s most-publicized trials by leaving deliberations supposedly to go to her father’s funeral went to the track instead.

The day after the jury got the case, the judge held an after-hours hearing to announce that a juror had left Washington, D.C. to deal with a family emergency.

The next morning, Judge Emmet Sullivan reported at another hearing outside the presence of the jury that he had spoken twice with the juror. That juror—Juror No. 4—had told the judge him that her father had died and that she was on her way to his funeral services in California.

Reporting these conversations, Judge Sullivan said “I told her that having lost my own father a couple of years ago, I knew what she was going through….I left it at that and told her godspeed.”

As Roll Call reported, at that point the courtroom fell silent “and remained quiet for more than a minute.”

Judge Sullivan recessed the trial for the day and ultimately dismissed Juror No. 4 when he could not reach her again after the night she announced that she was leaving. The court replaced Juror No. 4 with Alternate No. 1, a juror who had served all through the trial and then went on standby status during the deliberations. As newly constituted, the jury convicted the Alaska Republican of all charges in less than six hours of deliberations.

Those verdicts came down on Monday afternoon, October 27, and some assumed that the question of what happened to Juror No. 4 was over. But Judge Sullivan didn’t let it go, and he scheduled a hearing for Juror No. 4 for November 3 to explain why she had not stayed in contact with the court after the first phone calls the day she announced she was leaving.

The Post-Trial Hearing on Why the Juror Didn’t Keep Contact with the Court

At the hearing, Juror No. 4 appeared under her actual name, Marian Hinnant, and her actual story turned out to be deeply weird.

The whole “Dad’s dead” story was false, she told the court. Hinnant left the trial because she
had a plane ticket to go to the Breeders’ Cup World Championships at the famed Santa Anita Park outside Los Angeles. (And as the Washington Post reported, her father is alive and well in North Carolina.)

Hinnant’s trip to the Breeders’ Cup added—in the words of Erika Bolstad in the Anchorage Daily News—“yet another bizarre twist to a story that has no lack of them.” The Breeders’ Cup had a race that included a horse owned by key government witness Bill Allen’s son, who had received immunity from prosecution as a result of Allen’s cooperation with the feds in their investigations into public corruption in Alaska. The Daily News reported that the horse—which finished next-to-last—is the half-brother of So Long Birdie. This thoroughbred was once owned by a partnership that included Stevens, Allen, and Allen’s son as well as two Alaska businessmen who figured prominently in the trial—real estate developer and sportfishing promoter Bob Penney and restaurant owner Bob Persons.

Chief federal prosecutor Brenda Morris had used the defendant’s part ownership of a racehorse as a key theme in the government’s rebuttal closing argument, telling the jury that Ted Stevens had gambled on hiding his gifts from Allen and had lost.

After apologizing for lying, Hinnant told the court what the Associated Press called “a long rambling story about horses, which included references to horse breeding, the Breeders' Cup, drugs, President Ford's son Steven and her condo in Florida being bugged.”

Although her court-appointed attorney was unsuccessful in keeping his client quiet during the hearing, Judge Sullivan seemed to take pity on her and did not order her punished for her misconduct.

When the hearing ended, Hinnant gave an impromptu press conference to a trailing pack of reporters as she walked towards the subway station hundreds of feet from the courthouse. She told the journalists that she believed Stevens was guilty, but “He didn’t do anything any of the other Congressman and Senators hadn’t done.”

Implications of the Strange Behavior of the Juror Who Loved Horse Races

It’s unclear what effect this strange incident will have during the motion for a new trial to be made to Judge Sullivan and the appeal that will follow the sentencing if Judge Sullivan denies that motion. Prosecutors will point out that the jury that convicted Stevens on the last day of deliberations did not include this apparently disturbed individual. The defense attorneys, on the other hand, will use the odd facts around Juror No. 4 to add to the atmospherics of their pleadings, trying to paint a picture that the trial was a circus whose result can’t be trusted. As Libby Casey of the Alaska Public Radio Network reported, Sen. Stevens’ lawyers followed Hinnant into the subway station even though the reporters did not.

Legal experts contacted by the Washington Post and the Anchorage Daily News predicted that the misconduct by this juror would have little effect on any motion to overturn the verdict or any appeal.

Campaigning hours after the hearing, Stevens tried to turn the news of the bizarre juror to his political advantage. The Senator cited Hinnant’s lies and odd behavior to suggest that his trial was unfair and that he should be re-elected to his seventh full term despite the guilty verdicts.
At the election the next day, Stevens performed much better against his Democratic opponent—Anchorage Mayor Mark Begich—than all the polls predicted. Although the election’s outcome is
still in doubt, some have speculated that publicity about the odd juror had indeed helped Stevens.

Thursday, November 13, 2008

Bill Weimar Takes His Medicine Like a Man--But Would You Want to Be that Man?


Retired private prisons magnate Bill Weimar was sentenced to six months in prison and six months of home confinement at a subdued proceeding yesterday in which vanilla-coating and contrition were the orders of the day.

Weimar’s journey to the defendant’s seat in federal criminal court was long and strange:

· Civil rights activist in the 1960s
· Firebrand leader of the “Ad Hoc” insurgents who tried to take over the Alaska Democratic Party in 1972
· Repeat political candidate
· Owner of a Last Frontier corrections empire
· Retiree in Montana since 1999

And starting in January: Prisoner.

The Setting: It’s Lonely for this Defendant

The mood was somber and restrained. Right from the get-go, there was a reminder that white-collar cases look more like big-dollar civil cases than the regular run of criminal proceedings. All the people at the counsel tables—including the defendant—wore dark business suits, and all the lawyers and the accused shook hands with each other before the judge came in.

These courteous expressions took place in a courtroom that was desolate by the standards of the Alaska public corruption cases. There were only about a dozen people in the room just before the sentencing started, and even with the late arrivals there were never more two dozen. It was a far cry from the throngs of reporters and paparazzi that followed the Ted Stevens trial in Washington, and a smaller turnout than appeared at other sentencings in the Alaska public corruption cases.

What was particularly surprising about the few people in the courtroom for Weimar’s sentencing, however, was that except for the defendant and his attorney it appeared that everyone there was either a federal employee or a member of the media. Even though Weimar lived in Alaska for 30 years before moving to Montana in 1999, not one friend or family member appeared to have come to support him as he faced prison. And the only letter in the file about the sentencing is from the administrator of a Montana domestic violence abuse prevention program who says that Weimar’s free work would be welcome community service.

The Facts of the Case

Weimar’s case is different from several of the other Alaska public corruption cases, as his Seattle-based attorney David Bukey took pains to point out. There were no wads of cash handed to legislators, and the government does not allege any long-running schemes to funnel money or gifts to an office-holder.

Instead, Weimar used telephone calls and the mails back in 2004 to arrange to pay $20,000 of an Alaska legislative candidate’s campaign costs. His concealment of that payment involved going to post offices in three Montana towns in two days to mail that money to a campaign consultant in three separate packages of less than $10,000 apiece. One of those packages carried a $3,000 check, and each of the other two packages contained $8,500 in cash. (Note to big cash handlers: Banks have to report to the IRS cash transactions of $10,000 or more, and it’s illegal to break up a transaction into parts of less than that amount to avoid this limit.)

Federal prosecutors call that conduct “Conspiracy to Commit Honest Services Mail and Wire Fraud” and “Structuring Financial Transactions,” and both those things are felonies.

The proceeding was fairly dull because the feds had Weimar dead to rights. The Department of Justice had the bank records, and also had the 68-year-old on tape in phone calls with the candidate and the consultant. With the evidence staring him in the face, Weimar pleaded guilty and sat down for a thorough debriefing with the FBI to tell what he knew about other potential crimes.

With no dispute over the facts or the intent, all that was left was characterizations of the defendant’s past life and the seriousness of this conduct.

The defense lawyer did a solid job of presenting Weimar’s view of his personal history and his offenses. Setting aside a case arising out of his 1960s civil rights activism, Bukey said his client had led a “crime-free life” until these offenses. Weimar was a “good man” and an “optimistic man” who through a “regrettable, sad, ironic” turn of events made a “series of very poor judgments” in 2004 that put him in court now.

The major disagreement the defense had with the prosecution was why Weimar did it. The defense—particularly the defendant—saw the case as a man who went wrong out of a misguided effort to help an old friend of more than 30 years who had limited means to fund a campaign. As Weimar told the court in his allocution, his friendship with that candidate was so long and strong that he had spent Christmas and Thanksgiving holidays with the candidate’s family.

Assistant U.S. Attorney Joe Bottini viewed the defendant’s motivations a little differently. Although by 2004 Weimar had basically retired from the private prisons industry after selling five Alaska halfway houses and moving to Montana, he still had a dog in the hunt in the construction of a private prison in the 49th State. If the company to which Weimar had sold out got a contact for that prison, Weimar would receive approximately $5.5 million. (That amount was a pittance compared to the value of the contract, pegged at $1 billion for 25 years in an article by Tom Kizzia in the Anchorage Daily News.)

Construction of the private prison required approval by the Alaska Legislature. During his previous service in the legislature, the candidate secretly funded by Weimar had always supported efforts to privatize prisons. Given that history and the big financial incentive for Weimar, his actions in paying a $20,000 campaign debt for that candidate were merely an attempt to buy influence with a politician, Bottini said.

As Bottini stated in the government’s sentencing memorandum, "Weimar's conduct here was serious—he took deliberate action to illegally fund a State Senate candidate's campaign with the full expectation that this was going to pay off for him in the future once the candidate was elected."

Bottini also disputed the significance of Weimar’s thorough debriefing with the FBI of the details of his relationships with politicians after the feds confronted him his criminal conduct.

While the prosecutor said that he personally found that history “fascinating,” Bottini contended that the defendant should not receive a reduced sentence for his cooperation because it had not increased the government’s knowledge of other crimes. “The bottom line was that it didn’t advance the ball one inch for the government.”

Weimar Takes Personal Responsibility

After Bottini spoke, Weimar got his chance to speak directly to the judge. He spoke without notes, although his voice faltered on occasion.

Weimar stressed that “This was my fault….This was me and me alone.” Particularly given his background in operating prisons, “I should have known better.” (Unlike his attorney’s sentencing memorandum, Weimar did not mention his law degree, which would have underscored even more the opportunities he had to learn about how to avoid committing crimes.)

While running halfway houses and drug rehabilitation programs, he helped set up behavior modification sessions, which often focused on criminal thinking errors. Weimar said “This was a criminal thinking error.”

The Judge Imposes Sentence

U.S. District Court Judge John Sedwick bought Weimar’s version of his own life. “This is obviously a sad day for Mr. Wiemar, but it’s also a sad day for everyone in the courtroom,” the judge said.

Given the defendant’s hard work, success, and contributions to the community, the judge considered it “basically astonishing” that he had committed these crimes.

“Really, this offense is the only thing that I can see in the record that would be of concern to anybody in a negative way,” the judge said. “Mr. Weimar is somebody who appeared by all accounts to be a very honest and upright hardworking individual who made an effort as best he could to assist others—people who ended up in situations he’s in now.”

On the other hand, Weimar’s crimes were serious, particularly his concealment of the $20,000 campaign contribution. "It was the kind of offense that does great damage to our community allows for the corruption of a public process that we all really depend upon," Judge Sedwick said.

Balancing his view of Weimar’s laudable past life and the seriousness of the offenses, the judge gave him a sentence closer to what the defense requested than what the prosecution asked for.

Judge Sedwick handed down a sentence of six months in prison followed by six months of home confinement. During that period of confinement at his Montana home, Weimar can leave for a few limited purposes, including volunteering at a domestic violence program aimed at rehabilitating offenders.

The court added a $75,000 fine to the sentence. The entire presentence report was sealed, but the judge observed that it showed that Weimar had a "substantial annual income and net worth." Noting that the crime was motivated by money, Judge Sedwick said that a significant fine was needed to deter “well-heeled” and “successful” people from similar conduct.

Lessons from this Sentencing

The entire proceeding was significant on a number of levels in what it revealed about the ongoing corruption probes in the 49th State and what it didn’t reveal about Bill Weimar.

The deliberate pace of the investigations of the Alaska public corruption scandals was again on display, as Weimar will go to prison for crimes he committed more than four years before. The federal criminal investigations into the 49th State’s public corruption started when Barack Obama was a state legislator, and it is likely to be well into his Presidency when the feds close up shop on those cases.

Others in the feds’ crosshairs are the persons referenced as Consultant A and Candidate A in the Weimar case’s charging documents. Although still not officially identified, the consultant appears to be a Seattle-based campaign specialist. Various media accounts have fingered former Sen. Jerry Ward, an Anchorage Republican, as the legislative candidate who received Weimar’s illegal help in 2004. (Weimar’s illegal help was unsuccessful, as Ward lost that race.)

Neither Ward nor the Seattle-based campaign consultant has been charged. Ironically, the tangled connections that Ward has with Bill Allen and VECO—another partner in the push for private prisons in Alaska—may have complicated the investigation and slowed down any charging decisions the feds may make about the former legislator.

The big private prison sought by Weimar, VECO, and others never came to Alaska, and the proposal is now dead. Those years of efforts did bring at least one prescient comment by then-Rep. Eric Croft, D.-Anchorage, at a 2004 legislative hearing. After complaining about repeatedly seeing “sole-source, pre-arranged, heavy-money deals that go to specific contractors,” Croft predicted that "We are going to see somebody indicted and probably imprisoned over this series of proposals."

But the most unusual aspect about Weimar’s sentencing was the way it only scratched the surface of a person whose life trajectory has been stranger than that of anybody else in the Alaska public corruption scandals.

Bill Weimar’s 68 years on this planet have been much racier and richer than the depiction offered by his defense attorney. The gap between the man described in court and the man known by numerous Alaskans was substantially greater than in most criminal sentencings. As is common in letters of recommendation, singles ads, and obituaries, some of the juiciest parts of his life were left out at this proceeding.

Long-time Weimar subordinate Philip Munger expressed a particularly dark view on his blog in August when the feds announced the charges against his former boss:

If I were Bill, I'd hire a first-rate bodyguard very, very soon. Bill may be one
of the dirtiest operators in Alaska history. What he's been charged with today
by the U.S. Department of Justice isn't the tip of the iceberg. It is the tip of the
tip of the iceberg.

Weimar's past creative manipulation of funds touches both major political parties
in Alaska.


Munger’s suggestion that Weimar’s knowledge of dirty deeds committed by others as well as himself puts him at risk seems overblown given the prosecution’s statement at Weimar’s sentencing that he hadn’t given the feds anything that the government didn’t know already.

You don’t have to go as far as Munger, however, to know that the sentencing was a very sketchy portrait of an intriguing and troubling figure.

Intelligent and calculating, this 6’4’’, 250-pound force of nature was a chameleon across the decades. Most people could not imagine going from civil rights activist, antiwar organizer, and insurgent Democratic Party powerbroker to a multimillionaire operator of private prisons and a drug-testing laboratory. Weimar’s vision and narrow dedication to himself, however, helped make him successful in several endeavors.

His voice stayed deep and husky and his manner remained intense even as his jetblack hair turned whitish gray, but the shifts in his lines of work and in his political associates were much more significant than any change in his appearance.

Weimar’s inability to get elected to the legislature despite repeated tries showed the limitations of most backroom operatives: The kind of strategist who can get others elected often lacks the kind of one-on-one personal appeal to voters that can make himself successful at the polls.

Like many others, Weimar turned from the pursuit of political power to the pursuit of wealth in the 1980s, and he got rich. It wasn’t just his entrepreneurial instincts and hard work that made the money for him, though—it was also the transactional nature of his personal relationships (his ties to Ward appear to be an example).

Near the end of his seventh decade, however, this approach seems to have netted him a lot more money than friends.

If you were 68 years old and going to court to face being sent to prison for a number of months, what would you want more: a big house on a big spread on a Montana lake and your own yacht, or even one person who would show up at your felony sentencing because they cared about you?

Monday, November 10, 2008

Considerations in Evaluating the Fairness of the Ted Stevens Trial


I have been repeatedly asked whether I thought the Ted Stevens trial was fair. I offer here a lengthy lawyer’s answer based on my observation of the trial and my more than 20 years as an attorney (including more than three years as a state prosecutor).

An evaluation of the trial’s fairness needs to include consideration of the following factors:

  1. the lack of any right for a defendant to be tried in his home state for alleged offenses that clearly occurred thousands of miles away;

  2. the U.S. Department of Justice’s discretionary and judgment-based system for satisfying its constitutional obligation to give exculpatory evidence to the defense;

  3. the defense’s request for an extremely expedited trial given the large amounts of evidence involved;

  4. the defense team’s very substantial skill, experience, and resources; and

  5. the judge’s throwing out of some of the prosecution’s evidence and instruction to the jury that the reason for the exclusion of some evidence was due to the failure of the prosecution to meet its obligations.

As a legal matter, Ted Stevens had no right to be tried in Alaska for these offenses. I will not go over all the legal arguments that the defense and the prosecution have fought over in court for weeks, but it is important to address one of the most frequently heard complaints from Alaskans. No matter how it seems to those on the Last Frontier, this trial concerned paperwork that Ted Stevens submitted to the Senate in Washington, D.C. If federal appellate courts reverse these convictions, the grounds for reversal will not include the trial court’s denial of the motion to change venue.

The federal system for discovery appears to create more potential for discovery violations than does the system used in Alaska state courts, particularly in cases with a lot of evidence. The prosecutors made a number of mistakes in turning over to the defense some evidence that could have been interpreted as exculpatory (legalese for tending to negate guilt). In letting the case be decided by the jury, Judge Emmet Sullivan showed that he didn’t believe that the prosecutors’ errors fundamentally hampered the excellent defense lawyers’ ability to represent their client.

The prosecutors’ mistakes did not mostly appear to be intentional. Those errors instead seemed primarily to reflect a combination of two factors: the policy for providing exculpatory evidence followed by the U.S. Justice Department and the extremely expedited nature of this trial.

I have an unusual perspective on this prosecution because although I have litigated several civil cases in federal court in my two decades as an attorney, my entire experience in criminal law has been in the Alaska state courts. Prosecutors in Alaska basically follow an “open file” policy in which the government gives the defense essentially everything in the prosecutor’s files with very slight exceptions such as strategy memoranda. As a prosecutor, I found that this practice minimizes problems with discovery.

The U.S. Department of Justice, on the other hand, does not follow this “open file” practice in satisfying its constitutional obligation to turn over evidence to the defense. Citing factors such as the risks to national security and witness security, the U.S. Attorney’s Manual speaks of “the reasoned and guided exercise of prosecutorial judgment and discretion” in describing how government lawyers disclose exculpatory material to the defense.

In this case, the prosecution seemed mainly to be concerned that if it just handed over to Ted Stevens’ lawyers all the evidence gathered in the investigations of Alaska public corruption, the defense would then find a way to leak that information to attorneys for some of the other targets in those ongoing probes.

Maybe it’s just because I’ve never practiced criminal law in the federal system, but it has always struck me that the Alaska approach was better. Asking people to make discretionary decision can lead to problems in such a sensitive area.

Given the amount of evidence, this trial happened very, very fast. The almost ungodly speed with which this trial occurred also played a factor in the discovery problems in this case. This trial started at the defense’s request less than two months after the announcement of the indictment, when under normal circumstances a trial featuring all these acres of evidence would have come nine to 12 months later.

Noting that the prosecution had consented to this breakneck pace, Judge Sullivan rejected out of hand any suggestion from the government that the discovery snafus could be blamed on the very speedy trial in this case. As a practical matter, however, the highly expedited nature of this trial did seem to contribute to the discovery issues that arose in that it is generally a bad idea to ask people to make a large number of important discretionary decisions under great time pressure.

This defense was skilled, effective, and very high-end. As I have before, comparing this defense to that seen in courts every day all around the country is like comparing a jet plane to a tricycle. There were at least six lawyers working on this defense at all times, and I think there were probably closer to 10. Brendan Sullivan, the lead defense attorney, is probably the leading white-collar criminal defense lawyer in the United States. He reportedly bills at $1,000 per hour, befitting a lawyer who went for about three decades with no client ever going to jail. I estimate that this trial cost at least $200,000 per week, and the total cost of the defense is getting close to $2 million so far.

The prosecution’s errors led the judge to trim the government’s case and criticize the prosecution in front of the jury. After the defense brought the government lawyers’ errors to his attention, Judge Sullivan horsewhipped the prosecutors in court outside the presence of the jury. In front of the jury, his responses were more mild. He did throw out some evidence and gave the jury an instruction blaming the prosecution for excluding some of that evidence. Appellate courts will take the trial court’s rulings into consideration in deciding the defendant’s appeal.

Friday, November 7, 2008

Ethics Test for Lawyers


Here is an ethics presentation for Alaska lawyers that I prepared in the form of a test. Regular readers of this blog will recognize that the facts in the questions strongly resemble the facts that came out in connection with a well-publicized trial that concluded last month.

You are free to submit answers if you want, but there will be no prizes awarded.

Ethics Test for Lawyers—Questions Ripped (Mostly) from the Headlines

1. You are a prosecutor on a high-profile case in which the trial is scheduled to last a month. You have brought an important witness more than 3,000 miles from his home to the site of the trial seven days before the trial is to begin. You know that the witness is under subpoena by both the prosecution and the defense. You have interviewed the witness repeatedly. You observe that the witness is in poor health, and he tells you that he is under a doctor’s care back at home.

Which of the following is your best course of action under the Alaska Rules of Professional Conduct?

a. Advise defense counsel of the situation.
b. Ask the court for guidance on an ex parte basis.
c. On the fourth day of trial—the day the prosecution begins presenting evidence—tell the witness to contact defense counsel and arrange for the witness to return home that day without ascertaining whether the witness reached defense counsel.

2. (Note: This question contains at least one hypothetical premise.) You are a criminal defense attorney heading a team representing a client who is one of the nation’s most powerful men, was recently third in line for the presidency, used to be a federal prosecutor, and is old enough to be your father. Your firm is perhaps the pre-eminent criminal defense law in the country. You bill $1,000 per hour, befitting a record in which you went about 30 years with none of your clients ever going to jail. (One magazine has even said that your counterattacks against the government have put more prosecutors in jail than their indictments have put away your clients.) With a half-dozen or more lawyers assisting you, the cost of the defense is running at least $200,000 per week.

You have lined up a number of character witnesses for your client, including the most admired man in the land. Based on your expertise and your evaluation of the case, you have recommended that your client exercise his constitutional right not to testify. You have no reason to believe that your client will commit perjury, but it is your opinion that his testimony will harm his chances of acquittal. Despite your vigorous objection, he insists upon taking the witness stand.

Which of the following is your best course of action under the Alaska Rules of Professional Conduct?

a. File a motion to withdraw as counsel.
b. Ask the court for guidance on an ex parte basis.
c. Work with the client to help him present his testimony in the most effective way you can muster, and particularly urge to refrain from criticizing the questions from an African-American female prosecutor in front of a jury that is composed mostly of African-American females.

3. You are a judge presiding over a criminal trial on a seven-count indictment. One incident identified in the indictment involves a swap of vehicles, and the relative value of the vehicles is an important issue in the trial. The defense has invested substantial effort on cross-examination in trying to impeach a key witness’s testimony on the amount he paid for one vehicle. The prosecution waits until redirect examination to produce a check for the vehicle that supports the witness’s version, thereby making the defense look silly and disingenuous in front of the jury. It comes out the next day that the prosecution did not give the defense a copy of the check until after the witness left the stand, and the defense claims that it has been “sandbagged” by the prosecution.

What step should you take to remedy this discovery violation?

a. Dismiss the indictment.
b. Declare a mistrial.
c. Fine the prosecutors.
d. Instruct the jury that all evidence regarding the vehicle transaction has been stricken from the record.

4. Discuss the following:

“Prosecutors in Alaska basically follow an ‘open file’ policy in which the government gives the defense essentially everything in the prosecutor’s files with very slight exceptions such as strategy memoranda. The U.S. Department of Justice, on the other hand, does not follow this ‘open file’ practice in satisfying its constitutional obligation to turn over evidence to the defense. Citing factors such as the risks to national security and witness security, the U.S. Attorney’s Manual speaks of ‘the reasoned and guided exercise of prosecutorial judgment and discretion’ in describing how government lawyers disclose exculpatory material to the defense. The federal approach to discovery increases risks of discovery violations, particularly when a case with thousands of pages of evidence is tried less than two months after the indictment is announced.”

5. Based on everything you know about the law and about human nature, which policy should the governing law express regarding the receipt of gifts by government officials from government contractors and persons regularly seeking considerations from the government?

a. Mandatory disclosure of all gifts is the best approach.
b. Mandatory disclosure of any gift above a stated de minimis level is the best approach.
c. Prohibition of all gifts is the best approach.
d. Receipt of any gift is acceptable as long as no discovery occurs.

6. You are counsel to an Alaska-based corporation with more than $500 million in annual revenues and operations in more than half a dozen countries. The long-time CEO asks you to draft an agreement between him and a relative that provides in part that he shall pay his relative $30,000. The agreement that he requests you draft also provides that neither party shall ever discuss certain matters with any federal, state or local government authorities, including the Internal Revenue Service, the Alaska Public Offices Commission, and the Federal Election Commission.

Which of the following is your best course of action under the Alaska Rules of Professional Conduct?

a. Immediately draft the agreement as requested.
b. Immediately draft the agreement as requested and simultaneously quadruple your hourly rate for this client.
c. Use your best efforts to talk the CEO out of the provision regarding non-discussion of any matter with any agency responsible for law enforcement.
d. Use your best efforts to talk the CEO out of the provision regarding non-discussion of any matter with any agency responsible for law enforcement and withdraw from the representation if such efforts fail.

Bonus Trial Advocacy Question

7. The prosecution’s star witness in a recent well-publicized trial is a former close friend of the defendant. This star witness carries some baggage that might permit successful cross-examination. He has pleaded guilty to multiple felonies and has admitted bribing state legislators, and has suffered a brain injury.

This star witness is also a 71-year-old man who has been investigated for multiple instances of alleged sexual abuse of a minor. Press accounts have identified two females who have allegedly stated that the star witness had sexual relations with them while they were under-aged, and one of those identified states that she was a prostitute at the time. One witness as to one of these alleged offenses is an adult woman who told the police that she believed the star witness conducted a sexual relationship with a 15-year-old girl while contemporaneously conducting a sexual relationship with her. The adult woman also told the police that after her relationship ended with the star witness, an attorney for the star witness contacted her and offered her $5,000 to sign a nondisclosure agreement that included a statement that she had never had a sexual relationship with the star witness.

Given these facts, what is the biggest risk that the attorneys face concerning the exotic social life of the star witness?

a. The prosecution faces the risk because that the jury will conclude that the government had given the star witness a pass on sex with under-aged girls so that he would testify against the defendant in this trial.
b. The defense faces the risk that the jury will conclude that the defendant had allowed the star witness to use the defendant’s property as a love nest for trysts with under-aged girls.
c. The prosecution and the defense face equal risks. The star witness is walking dynamite for both sides, so each side will avoid any discussion of under-aged sex.
d. The attorney who formerly advised the star witness and the corporation led by the star witness faces the risk of investigations that could lead to loss of his law license and/or criminal prosecution.

Announcement of the Winners of the Closing Arguments Quiz Contest


Now for an announcement in the belated but welcome category.

There was a six-way tie for first place in the Closing Arguments Quiz Contest. Listed alphabetically, those six people get the prize of being named on this blog:

Steve Aufrecht

Doris Bailey

Katie Eagle

David Finkelstein

Lucy Groh

Bob Lewis

And as chosen in a random drawing, Bob Lewis receives a Ted Stevens key chain. Please e-mail me your snail-mail address and I will mail it to you, Bob.

To all who participated—thanks for your interest.

Monday, November 3, 2008

Next Events Officially Scheduled


The next official events in the Alaska public corruption investigations are:

· The sentencing of Bill Weimar, former Democratic Party powerbroker and private prisons
magnate, on Wednesday, November 12, in Anchorage at 8:30 a.m.

· The beginning of the trial of Alaska State Senator John Cowdery, R.-Anchorage, on
Monday, January 9, 2009.

Although readers of this blog are probably unlikely to need reminders, tomorrow is Election Day. Vote like you mean it.

Friday, October 31, 2008


In transit from Washington, D.C. to Anchorage—

A number of people have said nice things about this blog’s coverage of the Ted Stevens trial, and
I thank each of you have left comments or sent e-mails.

I also want to express my appreciation to those who made that coverage possible. Before the trial started, I knew essentially none of the more than 25 reporters, correspondents, and television producers who brought this major event to the public. A number of them were veterans in covering the Washington scene, and some took the time to show me the ropes around the courthouse and gave me tips about the area. I spoke about this case with many of these journalists—some from D.C. and some from Alaska—and those discussions sharpened my thinking and improved this blog.

So—at the risk of making this sound like the Oscars—I particularly want to thank Rick Schmitt of the Los Angeles Times; John Bresnahan and Marty Kady of the Politico; Brian Hughes of the Scripps Howard Foundation; Brent Kendall of the Wall Street Journal; Matt Apuzzo, Jesse Holland, and Tom Hays of the Associated Press; Rich Mauer and Erika Bolstad of the Anchorage Daily News and McClatchy Newspapers; Carl Sears of NBC News; Paul Singer and Jennifer Yachnin of Roll Call; Libby Casey of the Alaska Public Radio Network; Cary O’Reilly of Bloomberg News; Jill Burke of KTUU-TV; Kate Hunter of Congressional Quarterly; Paul Courson of CNN; Manu Raju of The Hill; Fred Graham of In Session; Tom Ramstack of the Washington Times; Del Quentin Wilber and Dana Milbank of the Washington Post; Jason Ryan of ABC News; Nina Totenberg of National Public Radio; and Deirdre Hester of CBS News.

The efforts of all the journalists covering the trial impressed me particularly because I was struck by how difficult it was to write quickly and accurately for daily publication. I have never worked harder and under more pressure for such a long period as I have in covering this five-week trial. I marvel at those who do this job regularly with insight and style.

The production of high-quality work is particularly noteworthy given these tough times for the media business. American newspapers are hemorrhaging readers and advertising, and cutbacks have come across the country. Both print publications and TV newscasts face pressures from the Internet as many people—particularly the young—go online to get news and information. Threats of layoffs stalk even some of the fine journalists who have covered this trial.

Given all that, the many kindnesses these dedicated and hard-pressed professionals showed an amateur like me showed generosity indeed.

Although the business environment for journalism ranges from tricky to grim, the working conditions for the media at the courthouse were sweet. Shelly Snook and Jenna Gatski are the court employees responsible for helping journalists, and they are two of the most pleasant and efficient people you could hope to meet.

Final thanks go to six other people who made possible this blog’s coverage of the trial. Terry Gardiner marries the inspirational and the practical in one high-energy package. He edited most of my posts, and is responsible for much of what is good about this blog and little of what is not.

Terry and his wife Linda—both former Alaskans—made my coverage of this trial possible by moving to a Capitol Hill apartment a mile from the courthouse just before jury selection started. I was very lucky to have nicely cooked dinners waiting for me every night upon my return from court. Linda’s common sense and good cheer were very helpful in keeping Terry and me grounded during a high-stress period.

Tony Hopfinger of the Alaska Dispatch ( published a number of the posts from this blog’s coverage of the trial.

Laura McGann of the Washington Independent and my sister Betsy Ptak both encouraged me to start blogging during this trial, and both gave me useful suggestions in how to do it.

And the first and most persistent person to suggest that I start blogging was the fabulous Theresa Philbrick, who helped publicize this blog by sending it around to journalists and provided valuable long-distance encouragement and advice.

OK, enough sentiment.

Next up: Who else will face Justice in the ongoing federal investigation into public corruption in Alaska?

Thursday, October 30, 2008

Reactions to the Verdict in the Ted Stevens Trial

The conviction of Senator Ted Stevens has spawned quite different electoral reactions nationally versus in Alaska. Nationally Republicans, especially those currently running for office, are bailing out and calling for Stevens to resign. Foremost amongst those calling for resignation is Presidential candidate Senator John McCain.

It appears that McCain’s call for Stevens’ resignation forced Alaska Governor Sarah Palin to fall in line. Her initial public statement skirted the issue and did not call for Stevens to resign.

McCain and Palin have promoted as a central issue in their Presidential campaign their opposition to earmarking in the federal budget and castigated Senator Obama for his earmarking. Sen. Obama is of course a piker when standing alongside the legendary king of earmarks Ted Stevens. This and many other factors likely played into the McCain camp feeling they had to throw Ted Stevens under the Straight Talk Express Bus.

Most of the national Republicans that have joined in asking for Stevens to resign are facing tough re-election campaigns. Evidently they feel they cannot afford to support their colleague and must instead save their hide. Democratic Senator Daniel Inouye of Hawaii—Stevens’ best friend in the Senate and a character witness at his trial—has maintained his consistent support for Senator Stevens.

In Alaska, Republican officials both from the Party and elected officials are standing behind Senator Stevens. Democrats in Alaska have been subdued in their response, which says mountains about the special esteem that Alaskans hold Senator Stevens in. The Anchorage Daily News has recommended in an editorial that Stevens step down, but has presented a carefully reasoned line of logic centered on the Senator’s “bad judgment” and did not hang their hat on a conviction by a D.C. jury. Conviction by a jury of distant non-Alaskans does not carry much weight with many Alaskans.

Many Alaskans would likely relish being chosen as jurors to sit as “a jury of peers” for these Senators that have chosen to dump on Senator Ted.

Administrative Note: Tirebiter's posts will appear in Arial font, while Cliff Groh's posts will continue to appear in Georgia font.

Wednesday, October 29, 2008

This Blog Will Keep Going

Washington, D.C.--

Although the verdict in the Ted Stevens trial--and the fact that I didn't post yesterday--may lead a reader to conclude that the blog is finished, that conclusion would be dead wrong. This blog will keep going and follow the Alaska corruption scandals to their conclusion. The federal investigation(s) in the Last Frontier will produce a number of other indictments and trials.

Thanks for all the support, and I really appreciate your thoughtful feedback. Keep those electronic cards and letters coming, folks.

My next several topics will include:

· What happens next in Ted Stevens' case (appeals, campaign, political maneuvering)
· Other targets in the investigation and possible new indictments
· Analysis of closing arguments in the Ted Stevens trial
· Winner(s) of the closing argument quiz contest

The next trial arising out of the Alaska public corruption scandals is that of Alaska Sen. John Cowdery, R.-Anch., which is now scheduled for January. There will be other developments before then, however. Stay tuned.

Monday, October 27, 2008

Guilty on All Seven Counts

Live from the Ted Stevens Trial, Day 26

Washington, D.C.--

This is really the day that seemed impossible.

The jury convicted U.S. Sen. Ted Stevens on all seven counts of concealing free benefits on his Senate ethics forms over a half-dozen years.

The jury foreman read the verdicts at approximately 4 p.m. today in a packed courtroom in Washington, D.C.—verdicts that cast a terrible pall on a six-decade career of a public servant whose worst enemies would say had done much good for Alaska.

Ted Stevens took it stoically, although his face reddened. Lead defense attorney Brendan Sullivan moved closer to his client and touched him consolingly.

It was a stunningly swift end to a month-long trial, especially since the court had only this morning brought in a new juror from standby status as a replacement for a juror who had left due to a family emergency.

It only took minutes for the conviction to reverberate across the continent to Alaska and back.

This verdict is a national headline, not just front page news in Alaska on the eight-day homestretch to Election Day. Pundits, bloggers, pollsters, and political commentators are all guessing and spinning the consequences of the Alaska Republican’s eleventh-hour conviction.

The fight over Stevens’ seat is one of a handful of key races that control of the U.S. Senate hinges on. Democrats have long sought 60 votes to prevent Senate filibusters, and the possibility that turning back Stevens’ bid for a seventh full term would produce that 60th vote had helped rivet the country’s attention on this trial. “Ted Stevens’ conviction the crowning blow in a bad year for GOP senators” was the headline on a blog post on the Los Angeles Times website.

Whatever the effects on national politics, this event drew the attention of all those interested in the Senate and in the Last Frontier. It was the first federal trial of a sitting U.S. Senator in a quarter-century, and the defendant was “the Alaskan of the Century,” the man some say is most
responsible for shaping the 49th state.

Why a Conviction on All Seven Counts?

Several key factors stand out as likely contributing to the jury’s conviction of Sen. Stevens on all seven counts brought by the U.S. Department of Justice:

1. The low thresholds in the annual reporting requirements turned out to make this an easy case to prove—at least to a jury composed of people from Washington, D.C.

The indictment charged Sen. Stevens with intentionally concealing his receipt of more than $250,000 in benefits over a period of more than six years. The law Sen. Stevens was charged with violating, however, had limits far lower than that figure. That law made it a felony to intentionally fail to disclose benefits worth $260 in some years, $285 in one year, and $305 in other years. That’s a pitifully low bar to clear. As one observer noted, the prosecution could have proved the failure to disclose by presenting only three days of evidence, not the two weeks the government did put before the jury.

To many Alaskans, the charges in the indictment seemed incredible on their face. People who were used to the many good things Stevens had done for or brought to Alaska—and had heard many stories about his well-known intelligence and diligence—could not believe that he would try to hide ill-gotten gains on his house renovation or other gifts totaling a quarter of a million dollars.

Those Alaskans weren’t on the jury, however. The jury was instead composed of Washingtonians, people used to hearing about the rules imposed on government employees whether or not they worked for the government themselves. Washington juries have a tradition of being hard on public officials accused of official wrongdoing.

Posted near one of the entrances to this massive courthouse is the Code of Ethics for Government Service. Rule V of the 10-point code directs any person in government service “[n]ever to accept for himself or herself or for any family members, favors or benefits under circumstances which might be construed by reasonable persons as influencing the performance of public duties.”

Congress adopted this code by passing a statute in 1980 in the same wave of post-Watergate reforms that included the Ethics in Government Act, the law that the jury convicted Ted Stevens of violating (and a law that he voted for himself).

2. The critical question in this case was all about what was in Ted Stevens’ mind. The guilty verdicts on all seven counts made it clear that the jury saw him as a liar who schemed to get hundreds of thousands of dollars of benefits for free.

That Ted Stevens got these various things of value was never an issue. His house in Girdwood got a whole new bottom floor, decks, furniture, a professional gas grille, a tool chest with new tools, plumbing repairs, and a variety of other benefits that were provided partly or entirely by the oil-services firm VECO and its long-time CEO Bill Allen, and Stevens never paid VECO or Allen anything for those benefits. The prosecution exhaustively proved that Stevens received these valuable things, and the defense never disputed that he got them.

The defense was that under the law Stevens was not guilty of any crime because he did not intend to conceal his receipt of the benefits. The defense argued vigorously that as to some benefits (like the decks, the staircase, and other renovations) Stevens never knew that VECO or Allen provided those items. As to other benefits (such as the grille, the furniture, and the tool chest), the defense contended that Stevens never considered them his property.

By its seven guilty verdicts, it was obvious that the jury completely rejected the defense’s arguments. It wasn’t just that the jury convicted Stevens for failing to report for each of the years from 2000 to 2006—including one year in which the only gift he appeared to get was a runty husky. No, the clearest proof of that total rejection came when the jury convicted him of Count I, the charge that he knowingly engaged in a scheme to conceal his receipt of gifts from VECO and Allen—a scheme that ran for more than six years.

This blogger had thought that Stevens’ biggest problems were on the two counts that focused on the home renovations in 2000-2001 and on the construction of the lower deck in 2002, and it seemed to several trial watchers that there might be a split decision on the various counts. The jury’s conviction on all seven counts, however, showed a complete acceptance of the government’s case.

3. The judge made a number of rulings over defense objection to let in evidence that appears to have hurt Ted Stevens badly.

At the beginning of the government’s opening closing argument last Tuesday, federal prosecutor Joe Bottini played an FBI tape of Ted Stevens’ friend Bob Persons telling Bill Allen that “Ted gets hysterical when he has to spend his own money. The flip side of it he can’t really afford to pay a bunch of money.”

The defense fought hard to keep the jury from hearing this tape and another surreptitiously recorded conversation between Persons and Allen, attacking that evidence as irrelevant, excessively prejudicial, and “triple hearsay.”

The reason for that fierce objection is obvious: The Persons-Allen conversations put a big dent in Ted Stevens’ defense. It’s not just the line quoted above, which suggests that Stevens’ best friends saw the Senator as a penny-pincher living beyond his means who might want to get wealthy friends to bestow benefits on him. Hearing a portion of that tape probably reminded the jury of the unreal tone of the Persons-Allen conversations, where people work hard to prevent a friend from having to pay his plumbing bill and also spend substantial time thinking about a good investment for him.

The judge’s decision to allow the jury to hear those tapes of the Persons-Allen conversations will be just one of many points on appeal that will be urged by Stevens’ defense team at the law firm of Williams & Connolly. Along with other disputed evidentiary rulings—such as the rulings that let in evidence of “bad acts” of Stevens other than those he was charged with—the defense will certainly attack the judge’s failure to declare a mistrial after the judge made findings in the middle of trial that the prosecution had failed to provide exculpatory evidence to the defense.

The problem for Ted Stevens, however, is not just that every lawyer knows that it’s better to win the trial than to count on a successful appeal (which in any case would almost certainly only bring a new trial, not dismissal of the charges). It’s not just that an appeal will take many months if not years, and he is running a very tough re-election race with Election Day only eight days away. Ted Stevens’ biggest problem may be that a man turning 85 next month has a different timeline than younger people.

4. The prosecutors turned out to be the equal of the superstar Brendan Sullivan and the top-flight Williams & Connolly firm.

A trial is not just a play, where what really matters is the skill of the actors. But a trial is in part a play, and Williams & Connolly’s star value has been known for decades. An illustration of that firm’s prowess appears on the ground floor of this courthouse, where an exhibit celebrates Teamster leader Jimmy Hoffa’s acquittal of bribery in 1957 following a defense by “famed attorney Edward Bennett Williams.”

Williams was the founder of the firm that bears his name, and his performance in the Hoffa case is one of the cornerstones of his legacy as a legendary trial attorney. In a case where the government had videotape of his client paying money to the key witness, Williams beat the prosecutors like they were rented mules, with the jury coming back with not guilty verdicts after only three and a half hours of deliberation. The defeat was so total that a newspaper columnist wrote that “To watch Williams and then to watch a Department of Justice attorney contending with him is to understand the essential superiority of free enterprise to government ownership.”

Things have changed in the last 50 years. The Williams & Connolly firm has had other great successes, and lead Stevens lawyer Brendan Sullivan is Williams’ protégé. Today, however, federal prosecutors can hold their own against the best of the private bar. Chief prosecutor Brenda Morris did particularly well in her cross-examination of Catherine Stevens and in her rebuttal closing argument, and clearly connected better with this jury than Sullivan did. Fellow prosecutors Nicholas Marsh and Joe Bottini also mounted effective cross-examinations of defense witnesses, and Bottini’s opening closing argument was solid and well-done.

All the lawyers in this case worked like dogs during a trial with a breakneck pace. Victory has got to be particularly sweet for these prosecutors, who had their integrity questioned by the judge during the blow-ups over the discovery violations and consequently had to report themselves to the Department of Justice’s Office of Professional Responsibility. Standing with her colleagues and her boss in the rain at the prosecution’s outdoor post-trial press conference, chief prosecutor Brenda Morris permitted herself a small smile. It would be very surprising if she didn’t have at least one drink tonight.

5. The defense strategies of pushing for a speedy trial and mounting a fact-based defense—particularly one featuring Sen. Stevens’ testimony—seem to have backfired.

The first bold move by the defense was to demand an amazingly early trial by all standard rules of white-collar criminal defense. This case went to trial less than two months after the issuance of the indictment, when under normal practice it would have taken maybe nine to 12 months. The defense’s stated reason was to give Stevens a chance to clear his name before the election, but another advantage some veteran lawyers saw was that it forced the prosecution to go to trial faster than it might have expected.

In the trial’s early stages, the defense’s push for speed seemed shrewd, as the haste appeared to contribute to the various failures of the prosecution to turn over exculpatory evidence. It’s also possible, however, that the defense could have come up with even more creative arguments if it had more time to examine the evidence and research the law.

The more questionable move, though, seems to have been the decision to defend on the facts, particularly by having the defendant waive his constitutional right not to testify. Throughout much of the trial, the defense was scoring by pointing out the prosecution’s unforced errors, and even got the judge to tell the jury that some evidence was being excluded because of the government’s failure to meet its obligations.

The defense also appeared to do well in its presentation of character witnesses for the defendant, particularly former Secretary of State Colin Powell and Gwen Sykes, a former Senate staff aide for Stevens who became Chief Financial Officer for Yale University. These were people who had worked closely with Stevens who could testify to his honesty and reputation for probity, and the fact that they were African-American certainly didn’t hurt with this predominantly black jury.

What was striking to many observers, however, was how the defense case seemed to go into reverse when it presented its key witnesses on the facts of the case. The prosecution gained significant ground through its cross-examination of contractor Augie Paone, Stevens’ friend Bob Persons, Stevens’ wife Catherine Stevens, and Ted Stevens himself. Paone agreed with some of the government’s key contentions, Persons seemed shifty, Catherine Stevens came off as a witness who contradicted herself and seemed excessively entitled, and Ted Stevens looked like an angry and arrogant man who couldn’t explain away some of the most damaging allegations against him.

Would the defense have done better to just rely on the witnesses who proclaimed Ted Stevens’ sterling character? It’s obviously impossible to run a scientific experiment. Not calling either Catherine or Ted Stevens to testify, however, would have prevented some testimony that seemed to damage the defense with this solidly middle-class jury. Some of that evidence came when the prosecution’s cross-examination of Catherine Stevens got her to admit that despite making close to $500,000 per year, she used the Senator’s staff to pay some of her credit card bills (apparently including accounts at Saks Fifth Avenue and Neiman Marcus) as well as some utility bills.

The most critical decision, however, was obviously having Ted Stevens testify, which changed the whole framework of how the jury saw the case. As one observer pointed out, it’s only possible to make the jury choose between trusting Colin Powell and trusting Bill Allen if Ted Stevens never takes the stand. Once the defendant testified, the jury appeared to focus on whether what he said made sense as opposed to whether Bill Allen had made stuff up to curry favor with prosecutors.

Ted Stevens’ testimony was so problematic for the defense that more than one observer wondered if the defendant had insisted on taking the stand over his lawyers’ advice.

Two Other Observations

1. Don Young is sweating tonight.

As first reported in the Wall Street Journal, Alaska’s sole member of the U.S. House is facing his own federal criminal investigation. Rep. Don Young has spent more than a million dollars in legal fees to fight off this investigation. The 18-term Alaska Republican’s long-time close ties to VECO make it likely that any prosecution of him will feature some of the same witnesses that helped convict Stevens, including Bill Allen. Seeing Ted Stevens go down on all counts based in part on Allen’s testimony has got to give Young a bad feeling that goes beyond his fears about what may happen in the very competitive election he faces next week.

2. This verdict is a tragedy on so many levels.

After receiving an incredibly aggressive and expensive defense, Ted Stevens stands convicted on seven felony counts by a jury that heard a month’s worth of evidence and argument. That’s how our system works, and as a former federal prosecutor and U.S. Senator for 40 years Stevens knows that system well.

This is still a very sad day, given how hard Ted Stevens has worked for Alaska for the last half-century and how much he has accomplished. I just wish that somehow history could have taken a couple of different turns that would have prevented this outcome today.

One turn could have occurred when Ted Stevens came up for re-election in 1996. By that point he was 72 years old and had been in the Senate for 28 years. No one could have begrudged him if he had announced his retirement and then gone into what surely would have been a highly lucrative lobbying career. It would have meant that he would have missed the opportunity to do great things for Alaska as Chairman of the Senate Appropriations Committee as well as all the power and glory that comes with that position. But he also would have avoided the humiliation and stain of this day.

Yet another turn could have happened in 1998, as he was getting closer and closer to Bill Allen, the man he let bring him down. If only Ted Stevens would have listened to someone he trusted and respected, someone who would have told him “You have to keep your distance from Bill Allen. He’s walking trouble. Take his campaign contributions and tell him which other campaigns should get his contributions. But don’t hang out with him, don’t go on vacations with him, don’t do any business deals with him, and don’t put him in a position where he could compromise you.”

The first path obviously never got taken, and maybe Ted Stevens never got or never availed himself of a chance to take that second path. I wish he had.