Monday, January 19, 2009

Waiting for More


I’m holding off on my analysis of the briefing regarding the defense’s Motion for a New Trial, Motion for Acquittal, and Motion to Dismiss Count One or Counts Two through Seven as Multiplicitous, both to see if there are replies from the defense to the prosecution’s oppositions and to see if there’s a refiling based on Chad Joy’s complaint.

On the waiting front, the Department of Justice didn’t file any declarations on Saturday regarding Joy’s complaint as ordered by Judge Sullivan, apparently because the Department appealed the order instead.

I’m betting there won’t be a pardon from President Bush for Ted Stevens, but we should know tomorrow afternoon. Stay tuned.

Friday, January 16, 2009

Eve-of-Weekend Roundup on Post-Trial Filings in the Ted Stevens Case

Anchorage, Alaska

No fewer than 15 documents have appeared on the docket of U.S. v. Theodore F. Stevens in the past two days as the motions and orders fly hard and fast. Some of the language in the paperwork fit the characterization of this case given by the Wall Street Journal’s Law Blog, which has called it “Most Theatrical Trial of 2008.”


1. Judge Emmet Sullivan has stayed very angry concerning the Department of Justice’s conduct and explanations for that conduct. The savage tone is apparent in the court’s order today. That order addresses the government’s request for relief from the order issued Wednesday that Attorney General Michael Mukasey personally swear to internal departmental decisions on FBI Agent Chad Joy’s complaint about the handing of the Alaska public corruption investigations and the Stevens trial. The Department of Justice based that Motion for Reconsideration partly on the basis that the government’s lawyers had misunderstood and thereby accidentally misrepresented Joy’s status under federal whistleblower laws. Unfortunately for the prosecution, those statements in the Motion for Reconsideration further stoked the fires of Judge Sullivan’s fury.

Citing the heavy demands on the Attorney General’s time, the judge’s revised order allows the Attorney General to designate other high-level officials to make those personal declarations regarding Joy’s status under the whistleblower laws. Judge Sullivan also relents on his previously imposed deadline of noon today, but makes the new deadline 5 p.m. Saturday (i.e., tomorrow).

It’s not just the highly onerous deadline that’s a shocker in the order, however. There’s the tough language: The court references “a pattern of belated revelations followed by unsatisfactory, and possibly false, explanations from the government in this case….”

Even more ominously for the prosecution, Judge Sullivan’s order quotes more than 30 lines of a defense pleading setting out seven previous examples of alleged prosecution misconduct in the trial that the prosecution characterized as good faith mistakes. Just like it’s good news when the jury sees the case the way a trial lawyer would like, it’s bad news when the judge sees a trial lawyer’s alleged misconduct the way that lawyer’s opponent characterizes it.

Once again, we haven’t heard the prosecution’s full explanation regarding the concerns the judge has raised about the merits of Agent Joy’s complaint (particularly concerning alleged discovery violations in the Stevens trial), the Department of Justice’s handling of that complaint, and the representations made about that complaint in court. What’s striking, however, is that the government’s explanations appear to be digging it in deeper. Contrary to his previous pattern, the judge has stayed mad and gotten even madder. The scorching 13-page order issued today substantially increases the likelihood that the judge will overturn the convictions and order a new trial.

2. Seeing a chance to surf on the judge’s anger at the prosecution, the aggressive Williams & Connolly defense team has ridden that wave over the top. Ted Stevens’ attorneys have filed a proposed discovery plan, basically a list of things that the defense would like to get from the government to help the judge figure out what he should do to remedy prosecutorial misconduct he might determine has occurred. Complete with 33 items of document requests, this wish list doesn’t just represent a kitchen sink approach—Stevens’ lawyers have set up a bathtub big enough to hold all of their requests.

The defense asks, for example, for “[a]ll documents relating to the decision to seek an indictment of Senator Stevens in the District of Columbia instead of the District of Alaska.” Materials about this internal strategy decision are highly likely to be protected from disclosure.

In a more ridiculous move, the defense seeks “[a]ll documents relating to [FBI Agent Mary Beth] Kepner’s relationship with [Bill] Allen, including…any documents suggesting an inappropriate relationship between them, sexual or otherwise.” This request takes Agent Joy’s complaint about a comment Kepner allegedly made about wearing a skirt when Allen testified and raises it to silliness on stilts. If Judge Sullivan makes a factual finding that Mary Beth Kepner had sexual contact with Bill Allen, I will don my swim trunks and my gym shoes, paint the rest of my body in blue and gold paint, and run from Allen's house to the Federal Courthouse in Anchorage no matter what the weather. More generally, it’s harder for the Stevens team to claim that Kepner's relationships with Allen or any other source hurt Stevens' defense because Kepner never testified in the Stevens trial.

That’s it for now. The prosecution just filed its opposition to the defense’s motion for a new trial, and I will review that carefully with the original motion and probably post again on Monday. Happy Martin Luther King Day.

Wednesday, January 14, 2009

The Ted Stevens Trial Allegations Get Personal and Draw a Highly Unusual Response

Anchorage, Alaska—

The judge looking at the new complaints against the prosecution team in the Ted Stevens trial released a much less redacted version of the FBI agent’s would-be whistleblower complaint disclosing many of the names and details blacked out in the document released last month. Judge Emmet Sullivan also issued a highly unusual order showing substantial anger and skepticism at the Department of Justice’s treatment of that complaint.

The substantially less redacted version of the complaint confirms some of what this blogger had predicted based on the originally redacted version: Chad Joy is the FBI agent who filed the complaint seeking whistleblower protection, and his co-worker—fellow FBI Special Agent Mary Beth Kepner—is the main target of the complaint.

I called the document prepared by Joy “a would-be whistleblower complaint” because the Department of Justice determined early last month that Joy would not receive whistleblower protection. After Judge Sullivan learned today that the Department had advised Joy as early as December 4 that the Department would not give Joy such protection, the judge announced that he had previously thought that either Joy already had the protection or that his whistleblower status was still in limbo pending an internal investigation by the Department.

Judge Sullivan said that he would have treated Joy’s complaint differently over the last month if he had known that the Department had not afforded Joy whistleblower protection. The judge’s obvious anger at the Department’s delays and statements that the court apparently considers unforthcoming led him to issue a strikingly uncommon order for a District Court Judge.

Judge Sullivan directed Attorney General Michael Mukasey to personally sign a declaration under oath to be filed no later than noon this Friday that details all those within the Department of Justice who knew about the complaint, what they knew, and when they knew it. The order also tells the Attorney General to address in the declaration “all decisions, correspondence, and communications” within the Department about Joy’s whistleblower status.

Turning to the substance of the complaint, it’s easier to see what Joy is alleging in the new, less redacted version released today. Joy’s allegations mostly center on his co-worker Kepner and her alleged proclivity to get too close to sources. That closeness supposedly led Kepner to take from sources things of value, including a painting of her dog and house-hunting assistance from someone related to a source. Although that source is unnamed in the complaint, it’s clear that the allegation is that Frank Prewitt’s wife provided the painting. Additionally, Joy charges that a former source of Kepner’s gave her husband a job as a security guard at the Port of Anchorage.

In the category of inappropriate conduct with sources, Joy also asserts that Kepner ate meals with Prewitt (and apparently his wife) at Prewitt’s home, met Prewitt repeatedly with Kepner’s husband present, and gave another source access to Kepner’s own home when Kepner was not present. Joy says he heard that Kepner golfed with VECO Vice President Rick Smith. To curry favor with VECO CEO Bill Allen—a man who apparently likes women in skirts—Joy alleges that the normally slacks-wearing Kepner wore a skirt on a day that Bill Allen testified. More generally, Joy claims that Kepner talked too much to sources and unnecessarily disclosed matters about the investigation and the FBI’s methods.

Joy’s complaint states that he is alleging “serious violations of policy, rules, and procedures as well as possible criminal violations,” but it’s clear that some of his accusations are much more serious than others. If the FBI brass believes all of these allegations, they will at a minimum harm Kepner’s career even though most of those charges listed so far—particularly those not involving gifts—would not directly aid Ted Stevens in his efforts to get a new trial or a dismissal of the indictment. What can more obviously help Stevens, however, are some other claims made by Joy regarding the ways the prosecution provided access to evidence during Stevens’ trial.

Joy alleges that the prosecution team made explicit decisions to hold back evidence from the defense in three instances that caused Judge Sullivan to chastise the government at the trial. Two appear particularly significant. Joy says that Kepner made the decision to withhold what appears to have been a statement of Allen’s. Joy also alleges that Public Integrity Section Trial Attorney Nicholas Marsh “inappropriately created [a] scheme” to use Rocky Williams’ poor health as an excuse to send him back to Alaska from Washington, D.C. on the eve of trial after deciding not to use him as a witness without notifying either the court or the defense, even though the defense had Williams under subpoena as well. (Williams died in Anchorage on December 30, apparently of liver disease.)

I’ll close with three observations/predictions:

1. The judge is pissed (to use the technical term offered by another attorney observer). Judge Sullivan appears to be concerned that the prosecution has pulled a fast one on him. This concern shows up in another order he issued today allowing the defense to use the new information made public today to file by January 26 a revised motion seeking either dismissal of the indictment or a new trial along with additional discovery and an evidentiary hearing.

2. The newly released version of the Joy complaint and the judge’s strong reaction to his discovery of the prosecution’s handling of that complaint have increased the chances that the judge will order a new trial or dismiss the indictment, but those odds have not reached 50 percent. During the five-week trial, Judge Sullivan showed a pattern of blowing up with dramatic rhetoric when he first learns of prosecution mistakes, thinking it over, and then coming back and imposing a well-considered and lesser penalty. The prosecution is under a microscope now, but that doesn’t necessarily mean that the judge will ultimately smash the government, particularly if the prosecution provides satisfactory explanations/denials of the serious allegations in Joy’s complaint. Recall that we haven’t yet heard the prosecution’s side of the story on the merits—expect a hefty filing with long affidavits within the next few weeks from the United States.

This controversy over Agent Joy’s complaint may slow down the ongoing federal investigations into public corruption in Alaska, but those investigations are likely to continue unless there is strong evidence of misconduct by prosecutors as opposed to just FBI agents.