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.

1 comment:

Unknown said...

I am your biggest fan, Cliff. I appreciate your reporting and enjoy reading your writing. I have one question: what exactly is discoverable information and/or materials? What generally is the prosecution required to release to the defense ... is the defense required to release to the prosecution? Does the same discovery process apply to employment mediations as applies in criminal court proceedings?