Friday, March 30, 2012

Feds Should Adopt Broader Rules for Criminal Discovery

Lake Buena Vista, Florida--

The U.S. Department of Justice has announced its opposition to legislation sponsored by U.S. Sen. Lisa Murkowski (R.-Alaska) that would require federal prosecutors to turn over more evidence to criminal defendants than federal law does currently.    The legal term for this process of sharing evidence with the other side in litigation is "discovery."  

My views on the appropriate scope of criminal discovery are strongly shaped by my experiences as a prosecutor and defense attorney in the Alaska state court system, where an open-file policy obtains.   Except for very narrow exceptions--such as strategy memos written by the prosecutor--in a criminal case in the Alaska state court system, the prosecutor hands over the contents of the case file to the defense.  

This broad discovery in the Alaska state courts stands in stark contrast to the rules for discovery in federal criminal cases, which are by comparison much more limited as well as riddled with exceptions. 

Prosecutors do well in Alaska state courts despite the broader discovery rules that give more evidence to the defense, and it strikes me that the federal government could also live under rules fairly similar to the relatively broad discovery rules that are the law in Alaska.   

The Justice Department does not agree.   While characterizing the Ted Stevens prosecution as "deeply flawed," the Justice Department contends that the current federal discovery system works and should not be changed by statute.  

The Anchorage Daily News reports that "The Justice Department said it was worried that [broader] disclosures could put victims and witnesses in danger, interfere with other investigations and pose national security risks." 

As to threats to victims, Alaska law already provides protections for victims in the discovery process.    Concerns about liberal discovery threatening other investigations or national security could be alleviated by allowing prosecutors to seek permission from the court to withhold information in specific circumstances.

Read more here:

Thursday, March 29, 2012

Video Clips and Quotes from Yesterday's Hearing on the Schuelke Report

Lake Buena Vista, Florida--

It's getting late, so all I will post tonight is this link to some extended excerpts from yesterday's U.S. Senate Judiciary Committee hearing.   That hearing presented testimony from the court-appointed special counsel about the investigation and report finding prosecutorial misconduct in the Ted Stevens case.   (Hat tip:   Matthew Felling of Sen. Lisa Murkowski's office.)  

Wednesday, March 28, 2012

Special Counsel Testifies before Senate Judiciary Committee on Prosecutorial Misconduct in Ted Stevens Case

Lake Buena Vista, Florida--

I watched this morning large portions of the U.S. Senate Judiciary Committee hearing regarding the court-appointed special counsel's report on prosecutorial mishandling of the Ted Stevens case.    (Shaky Internet connections caused me to miss some of the hearing, so I will track down a tape or transcript for the rest and write more later.) 

There was only one witness heard:   the lead investigator and report-writer, veteran Washington, D.C. attorney Henry F. "Hank" Schuelke, III.    

Schuelke is forceful and impressive, and his "Voice of God" manner helps explain why he has become such a successful attorney.

Asked why the prosecutors' acts and omissions occurred, Schuelke said that he thought the time crunch and management failures he and his co-investigator detailed in the report were not the sole reasons for the Justice Department's failures in providing discovery in the Ted Stevens case.  

In response to a question from Sen. Dianne Feinstein, D.-Calif.--a longtime Senate colleague of Ted Stevens--about  the motivations of the prosecutors, Schuelke said the government lawyers' failings apparently stemmed from an excessive desire to win based on the spirit of "contest living."    (I first encountered this term in a book about Edward Bennett Williams, a legendary Washington attorney who served as the mentor for lead Ted Stevens lawyer Brendan Sullivan.)

Schuelke said that his analysis of the prosecutors' personalities made it less likely that any lust for fame or glory drove the prosecutors to commit what the special counsel's report described as systematic and intentional concealment of evidence from the defense.   

From what I observed--and from a story filed by reporters who presumably covered the hearing in person and saw the whole event--it appears that the only example of wrongly withheld evidence mentioned by Schuelke in the hearing involved the statements of VECO ramrod Rocky Williams.   

Even though the relatively short hearing forced compression, this emphasis was odd.    The prosecution should have provided to the defense that evidence of Rocky Williams.   In terms of impact on the verdict, however, the evidence of Bill Allen's different accounts about the statements of Bob Persons about Ted Stevens' feelings regarding the desire of Stevens to pay VECO for its work on Stevens' home was unquestionably a more important matter to have been turned over to the defense.   (This evidence arose in the context of "the Torricelli note" and the "CYA" testimony Bill Allen gave from the witness stand.)

[Administrative Note:  I am traveling, and will catch up more next week.]  


Tuesday, March 27, 2012

Lawyers Who Probed "the Stevens Six" Charged Almost a Milllion Dollars for Their Work--EXPANDED

Lake Buena Vista, Florida--

The court-appointed special counsel's investigation and report regarding the investigation of the Ted Stevens prosecution cost almost a million dollars.    That total of $981,842 is only for the fees and expenses of the two lawyers--Henry "Hank" Schuelke and William Shields--who investigated the matter and prepared the report for the court.  

That figure definitely does not include the fees for the lawyers for the prosecutors whose work came under scrutiny in the investigation.    The fees of the lawyers for "the Stevens Six" came partly or entirely from their employer, the U.S. Department of Justice.    [EXPANSION:  As previously noted in this blog, records showed that the federal government had paid about $1.6 million to private attorneys for the government lawyers probed by the special counsel, with another $1.6 million going to pay for the defense of prosecutors facing a contempt of court finding for actions after the trial.   USA Today had the original story, and www.mainjustice filled in additional details.]     

Nor does that figure of nearly a million dollars cover the continuing defense costs of Williams & Connolly, the law firm which represents the interests of the late U.S. Sen. Ted Stevens.    [EXPANSION:  As previously noted in this blog, the Anchorage Daily News reported in May of 2009 that Ted Stevens' last disclosure report to the Senate showed that he owed between $1 million and $5 million to Williams & Connolly.]

The fees for the special counsel's investigation and report are not the product of the high-fee culture of big law firms in major metropolitan areas.    Schuelke and Shields only billed $200 per hour for their work on the report.   This is less than half the hourly rate of what partners usually charge at leading law firms in Washington, D.C.   The Justice Department also only compensated the lawyers representing the prosecutors under investigation at that same rate of $200 an hour.

This story was first reported by The Blog of Legal Times.

Monday, March 26, 2012

Costs and Benefits of a Trip out of Alaska

Lake Buena Vista, Florida—

I’m still working on my analysis of the Schuelke report while visiting the East Coast, where I can only shake my head at some of the traffic.   On the other hand, I was happy yesterday to be able to buy some kale, kiwi fruit, and blueberries at a street market in Miami Beach.

Friday, March 23, 2012

Traveling for Next Two Days


I am headed to the East Coast tonight, and my schedule makes it unlikely that I will blog again before Monday.

Thursday, March 22, 2012

Another Broadcast Appearance


I will be appearing tomorrow on a call-in radio program to discuss the Ted Stevens case and the court-appointed special counsel's report finding prosecutorial misconduct in that case.   The program is called "Alaska Matters" and is a legal-affairs show hosted by veteran Anchorage attorney Matt Claman.    The program is simulcast on KOAN 1020 AM and 95.5 FM in Anchorage.  

Wednesday, March 21, 2012

Senate Judiciary Committee to Hold Hearing on Mishandling of Ted Stevens Prosecution


The chairman of the U.S. Senate Judiciary Committee has announced that the committee will hold a hearing next week on the court-appointed special counsel's report finding prosecutorial abuses in the case against then-U.S. Sen. Ted Stevens (R.-Alaska).    Sen. Patrick Leahy (D.-Vermont) said that the lead investigator, Washington lawyer Henry Schuelke, will testify at the hearing Wednesday, March 28, at 10 a.m. East Coast time.    "Leahy's office did not indicate whether any of the defense lawyers who represented the Stevens prosecutors have been invited to speak at the hearing," reported The Blog of the Legal Times.  

Tuesday, March 20, 2012

I Will Be Talking PFDs on TV Tomorrow


I will be appearing Wednesday afternoon from 4 p.m. to 4:30 p.m. on the program "Alaska Political Insider" on the network of Coastal Television Your Alaska Link.   The program is on Anchorage's ABC affiliate, Channel 13.   I will be discussing the three chapters I co-authored for the book Alaska's Permanent Fund Dividend, which was published this month by Palgrave Macmillan.    The talk may also turn to the chapter I wrote for another volume on the same topic to be put out later this year by the same publisher. 

Where to Find the Hot Documents Regarding the Special Counsel's Report on Prosecutorial Misconduct in the Ted Stevens Case


The White Collar Crime Prof Blog has rounded up the links for the materials released last week related to the special counsel's report.   In posts dated March 15, 16, and 20, Solomon Wisenberg and Ellen Podgor have posted the report; the report's executive summary; the responses/rebuttals of each of the "subject attorneys" scrutinized in the report; and the analysis of Ted Stevens' attorneys.   

Alaska Gets Grade of D+ on "Corruption Risk Report Card"


A comprehensive study released Monday gives Alaska a D+ on a "Corruption Risk Report Card," ranking the Last Frontier 27th among the 50 states.   

Alaska was also graded on 14 categories related to accountability, transparency, and efforts against corruption.    The grading there was low, with marks of F for "Public Access to Information," "State Pension Fund Management," "State Budget Processes," and "Redistricting."   

The summary on the 49th State in the State Integrity Investigation states "Alaska boasts relatively strong ethics laws, but loopholes and a lack of oversight result in less accountability in practice than on paper."  Sean Cockerham--also a reporter for the Anchorage Daily News--wrote an article specifically for this study surveying the Last Frontier's issues with corruption and accountability.  As noted on this blog, the Alaska Legislature enacted legislation strengthening ethics laws after the federal investigation into public corruption exposed much unseemly conduct on the Last Frontier.

The study was produced by the Center for Public Integrity, Global Integrity, and Public Radio International.   

A Point to Ponder


"Real life is messy.    And as a general rule, the more theatrical the story you hear, and the more it divides the world into goodies vs baddies, the less reliable that story is going to be....One of the central problems with narrative nonfiction is that the best narratives aren't messy and complicated, while nonfiction nearly always is."

--Felix Salmon, commenting on inaccuracies exposed in theatrical performer Mike Daisey's monologue on working conditions of Chinese factory workers manufacturing Apple products after the monologue was presented as fact on the radio program "This American Life" (which then retracted the broadcast).   

Monday, March 19, 2012

Pain Reigns for Many in Ted Stevens Case


I am going to let others talk today about proposed federal legislation that would require more extensive sharing of evidence from prosecutors in federal criminal cases, a possible Senate Judiciary Committee hearing on the special counsel's report on prosecutorial abuses in the Ted Stevens case, and the likelihood of release of all or part of an internal Department of Justice probe into that misconduct by the Department's Office of Professional Responsibility ("OPR").  

I'm writing today about anguish.

High feelings have simmered for years about the Ted Stevens case.    They have boiled over again since the release of that special counsel's report Thursday morning finding instances of intentional misconduct by individual prosecutors in turning over evidence to the defense before and during the Ted Stevens trial in 2008.  

While grimly satisfied that the special counsel's report found that some federal prosecutors did dirt to then-U.S. Sen. Stevens, some of the Senator's closest associates are hurt that there has not been universal acceptance of the notion that the report represents exoneration and absolute proof that Ted Stevens was innocent of the charges brought against him.    One example of the view seen as hurtful would include veteran Alaska journalist Michael Carey's op-ed piece in the Los Angeles Times today (behind paywall if a reader who hasn't subscribed has exceeded quota of free content).   While excoriating the prosecutors for misconduct, Carey also states that "We don't know what a fair trial would have produced."   Another expression of a nuanced view of the report's meaning has of course come on this blog.  

Also feeling a lot of pain the past few days are a number of friends and current and former colleagues of the individual prosecutors called out as intentional wrongdoers in the special counsel's report.    These government lawyers by and large concede mistakes in providing discovery, while each of those prosecutors disclaims any intent to violate ethical rules and constitutional obligations.    

What is striking is that those closest to the late Senator and those closest to the accused prosecutors who pursued him tend to say the same thing:   There is no way the person they have known well could have intentionally broken the law. 

In the spirit of that pain felt by so many these days, I take the opportunity to urge this blog's readers to take a few minutes to think the best possible thoughts about those who have views different from yours.   Spend a little time giving the benefit of the doubt to those up against you.  Conceive of some good motivations they could hold, and imagine some laudable impulses behind their actions.              

Sunday, March 18, 2012

Links to My Comments in Other Media Outlets on the Special Counsel's Report on Prosecutorial Misconduct in the Ted Stevens Case


Kim Murphy of the Los Angeles Times explored the big picture  and a counterfactual universe in her story "Unknown is, would he have been found guilty?"

Bill McAllister of the Anchorage CBS affiliate KTVA-TV, Channel 11, interviewed me at length the day the report came out.    The piece that appeared on television about the report is here, and the station also posted here the raw video of the entire 24-minute interview of me.     

Saturday, March 17, 2012

The Wildly Different Pictures Painted on Thursday


Ted Stevens liked old-style Western movies with clear story lines.    The release of more than 800 pages this week that will almost certainly stand as the last words filed on court dockets regarding the criminal case against him results in a product more like Rashomon, the Japanese film in which truth is a plural noun seen in multiple perspectives.    

Some Alaskans seem to see the special counsel's report on the misconduct of the original prosecution team as an appeal which Ted Stevens won.    That is of course not what the report is.    The report is an investigation of why the federal government failed to fulfill its obligations to share ("discover") evidence to the defense in the Ted Stevens case with an eye to figuring out if any individual should be charged with contempt of court for any of those failures.    

If the report was instead a decision of an appellate court in the Ted Stevens case, that appellate opinion would have included some discussion of the facts brought out in court that supported the jury verdicts of guilty on seven counts (verdicts that were overturned when the case was dismissed in the wake of the discovery failures).    In an appeal of the convictions that the jury verdicts would have turned into if Ted Stevens had ever been sentenced, those facts considered on appeal would have included the many e-mail messages Ted Stevens sent showing his knowledge of the details of the renovations of his home.   Those facts also would have included the "Boot Camps"--the one-on-one vacations Ted Stevens took repeatedly over the years with long-time VECO CEO Bill Allen, at least one of which occurred years after Stevens told Allen that the Senator knew that he owed money to VECO for work done on those renovations.

To special counsel Henry Schuelke and his associate William Shields, individual prosecutors intentionally withheld evidence helpful to Ted Stevens while suffering under the problems imposed by a poor management structure and a super-shortened time frame that the government fell into.    The report demonstrates that prosecutors clearly did not turn over all the evidence to the defense that they should have.    It is particularly striking that Assistant U.S. Attorney Joe Bottini, who handled the questioning of Bill Allen, did not advise the defense that Bill Allen had told the government for the first time about the "Ted is just covering his ass" conversation with Bob Persons from 2002 only 17 days before Allen testified about that conversation at the Ted Stevens trial even though Allen had had scores of interviews and debriefings with federal agents before he first brought up the conversation.

To Ted Stevens' defense team, several prosecutors engaged in a criminal conspiracy to obstruct justice. In a 23-page analysis/brief released simultaneously with the special counsel's report, the Washington, D.C. law firm of Williams & Connolly portray the original Ted Stevens prosecutors the same way those prosecutors saw Ted Stevens:   evil.   And just as the Department of Justice accused Ted Stevens of consorting criminally with Bill Allen, the Ted Stevens defense team accuses the Justice Department of making a corrupt bargain with the devil incarnate--that same Bill Allen.   (Ted Stevens' defense attorneys also portray themselves as injured innocents, a picture that is far from the complete truth: Williams & Connolly's lawyers made a series of tactical decisions before and during the trial about how they would handle the issues raised by Bill Allen's sex life and Ted Stevens' Torricelli note that are not reflected in the documents put out Thursday.)

The individual prosecutors whose conduct is scrutinized by the special counsel's report paint a sorry picture of their employer's efforts in the Ted Stevens trial.   While admitting that mistakes were made and denying individual culpability--or at least any intent to violate the law--these lawyers point to numerous big errors in judgment and instances of petty bickering by others on their team.   Far from the juggernaut that many people see when they are up against the federal government, the Justice Department comes across in some of the filings of "the Stevens Six" as a combination of a fumble factory and an episode of "Days of Our Lives."

There is of course more to come from me on the report and the meaning of this case, and maybe I will get a chance to see Rashomon so that my next reference will be based on actual experience rather than critics' comments.   Stay tuned.

Thanks, Howard Weaver, for the memories of when you used to say "Truth is a plural noun" around the offices of the Alaska Advocate. 

Friday, March 16, 2012

Why Did the GOP-Run Justice Department under GOP President George W. Bush Prosecute Prominent Republican U.S. Senator Ted Stevens?


Following the release yesterday of the special counsel's report regarding prosecutorial misconduct in the Ted Stevens case, several people have asked me why the U.S. Department of Justice under Republican President George W. Bush prosecuted U.S. Sen. Ted Stevens, a powerful Republican Senator.   This question has been asked twice by commenter dingerak, who wonders "Why did the Bush Justice Dept. pursue this case (and then blow it) for a senator like Stevens, who they would normally venerate and protect?"

The first step is to congratulate the questioners for recognizing that it was the Justice Department in the Bush administration--not the Obama administration--which brought the charges against Ted Stevens.   Some writers on the Internet cannot understand this, and instead succumb to some ideologically driven need to blame President Barack Obama for the botched prosecution of a powerful Republican.    In fact, it was the Obama administration's Justice Department that dismissed the case against Ted Stevens.   

Next we need to distinguish between the decision to prosecute and the subsequent errors and failures in the prosecution.    

As to the decision to indict, start with a small group of lower-level prosecutors in the Justice Department.   That small group of career prosecutors worked for years with a number of federal agents--including some from the FBI and the IRS--on a number of investigations into public corruption in Alaska known collectively as "POLAR PEN."    That small group of prosecutors reviewed the facts and the law and concluded that Ted Stevens had committed federal crimes.    In particular, that small group came to believe that the Senator's relationship with Bill Allen was corrupt (and seemed to be influenced in that belief by a perception that Bill Allen's relationship with Ted Stevens' son Ben Stevens was corrupt as well).   

The belief of that small group of prosecutors led to a push to prosecute Ted Stevens.    For prosecution to occur, politically appointed higher-ups chosen by the Republican Bush administration had to approve that decision.    

Two factors seemed to affect the ability--or will--of those politically appointed Republican superiors to stop the prosecution.   

One factor was simple timing.   By the time Ted Stevens was indicted in late July of 2008, the Bush administration had less than six months left to run, giving the political appointees less power over the career professionals below them on the organization chart.  

Another factor appeared to be the effects of a series of scandals and controversies within the Bush administration's Justice Department--particularly over the allegedly partisan dismissals of U.S. Attorneys--that by 2008 apparently made Justice Department officials eager to show that they weren't Republican hacks and were instead professional lawyers applying the law evenhandedly.   Lawyers for Assistant U.S. Attorney James Goeke, one of the six government attorneys investigated in the special counsel's probe, say in their filing yesterday that "some of the Department's then highest ranking officials" made the decision on the timing of the indictment of Ted Stevens while being "possibly driven by exogenous political factors" in that decision on timing.

The lawyers for Goeke--who was (and is) definitely a lower-ranking attorney in this federal hierarchy--don't lay out those "exogenous political factors" they suggest influenced the decision on timing made by Justice Department brass.   To indulge in a little speculation, one such factor on the part of those politically appointed Republican higher-ups might be a desire to give up a make-up call before the end of the Bush administration to prove that the allegedly in-the-tank Bush Justice Department could stand up and prosecute a powerful Republican.     

I will have a lot more to say later about the reasons for the errors and omissions in sharing evidence that led to the collapse of the prosecution five months after the jury returned guilty verdicts on all seven counts charged by the government.   One thing I will say now is that based on my coverage of the five-week trial in 2008 and everything else I know, there is no way that the trial prosecutors deliberately threw the case to allow Ted Stevens to have a winning appeal.

Commenter dingerak also asks why Ted Stevens and Bill were "such close friends" given Allen's well-known unsavory reputation.    I will respond to that question later.   

Keep Three Questions Separate While Thinking About the Ted Stevens Case [Revised]


Some observers have tended to confuse the issues in considering the lengthy report issued by special counsel yesterday regarding allegations of misconduct by the prosecutors in the Ted Stevens trial.

Three questions are often confused:

1.   Did Ted Stevens do a lot of good for Alaska?

2.   Did the prosecutors in his case withhold evidence that should have been turned over to the defense?

3.   Does the release of the special counsel's report exonerate Ted Stevens?

There is a tendency among some commentators to think that answering "Yes" to the first two questions necessarily forces a "Yes" answer to the third question.    This is not correct.    It is perfectly reasonable to laud Ted Stevens for his hard work and achievements for the 49th State, castigate his prosecutors for their failings, and simultaneously recognize that the report's release does not prove the innocence of Ted Stevens.

It takes mental discipline--and perhaps a little subtlety--to keep these three questions separate, but Ted Stevens himself had the ability to make those distinctions.    The experienced and skilled attorney had a capacity for nuance as well as a trial lawyer's controlled use of temper and bluster.    

[Last paragraph revised for clarity.]    

Thursday, March 15, 2012

Two Weeks Before the Indictment, Member of Ted Stevens Trial Prosecution Team Was "Absolutely Convinced" Feds Would Not Indict Ted Stevens


I finished reading the special counsel's report and am still going through the prosecutors' rebuttals.    Something that jumped out tonight was a statement by Assistant U.S. Attorney Joe Bottini, a prosecutor whose critical role in the Ted Stevens trial included presentation of Bill Allen as a witness and the delivery of the opening summation for the government.    

In Bottini's deposition in this investigation, he stated that he was "absolutely convinced...going into the third week of July" of 2008 that an indictment of Ted Stevens "is not going to happen" and that he demonstrated this confidence by taking on a high-profile capital murder case.

The federal government filed its indictment of Ted Stevens on July 29, 2008, with Bottini's name listed as one of six prosecutors bringing the case.     

Report on Prosecutorial Misconduct in Ted Stevens Case Released--First Thoughts


I am about halfway through the more than 800 pages of report and rebuttal released this morning.  Here's my first take.    

Start with the obvious.    This report shows that a number of federal prosecutors made serious mistakes that they shouldn't make.   This report is damning to a number of people who worked--or work--at the U.S. Department of Justice by making them look insufficiently attentive to their constitutional obligations to share evidence with the defense in criminal cases.    This report also makes them look subject to pettiness and disorganization in a very big case.

Prosecutors are supposed to turn square corners in our system.    In the words of one court case, prosecutors should strike hard blows but not foul blows.    That didn't happen here, and I am saddened as a lawyer, an American, and an Alaskan that it did not.

Having said that, it goes too far to say that this report proves that Ted Stevens was innocent or that the jury would have acquitted him if all the withheld evidence had been provided to the defense in a timely manner.

This report examines the causes of the discovery failures that led to the overturning of the seven guilty verdicts against then-U.S. Sen. Ted Stevens (R.-Alaska) and the dismissal of the charges against him.    The jury returned those guilty verdicts after a five-week trial in Washington, D.C. in the fall of 2008.   

At that trial, the federal government presented evidence that Stevens failed to disclose gifts and/or liabilities he had incurred over a number of years by receiving benefits.    

Most of those benefits were in the form of renovations to a home owned by Ted Stevens in Girdwood, Alaska that he called "the chalet" that were shown at trial to have been provided by the now-defunct multi-national oil-services giant VECO and/or its long-time CEO, Bill Allen.    The prosecution alleged that those benefits at the chalet came over roughly a six-year period from 2000 to 2006.   

In addition to those benefits provided by Allen and/or VECO, the government presented evidence that Stevens received other undisclosed benefits provided by other friends over the years.   

The discovery failures detailed in this report undermine some of the prosecution evidence at trial, but not all of it.    Even if the defense had had all of the evidence it was entitled to get, the jury might well have reached guilty verdicts on at least some of the seven counts against him.   That doesn't let the federal prosecutors and agents involved in the Ted Stevens case off the hook, and some will continue to squirm.

More to come.

Wednesday, March 14, 2012

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


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

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

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

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

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

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

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

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

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

Tuesday, March 13, 2012

What Life in Prison Is Like for White-Collar Criminals


While we wait for the release of the report detailing allegations of prosecutorial misconduct in the Ted Stevens case scheduled for Thursday, here's a discussion of the day-to-day experiences of white-collar criminals in prison.   The article is pegged to the start this week of the 14-year sentence for former Gov. Rod Blagojevich (D.-Illinois) for public corruption.

Administrative Note:   I have recovered from illness suffered last week and will be blogging more frequently.   

Thursday, March 1, 2012

Prosecutor Appeals Order for Release of Special Counsel's Report on Misconduct of Prosecutors in the Ted Stevens Case


A government lawyer who assisted in the bungled prosecution of former U.S. Sen. Ted Stevens has asked an appellate court to stop the release of a special counsel's report detailing allegations of misconduct committed by Justice Department attorneys in that case.

Lawyers for Edward Sullivan have filed notice of appeal to the D.C. Circuit Court of Appeals regarding the order of U.S. District Judge Emmet Sullivan directing the release of the 500-page report on March 15.    Judge Sullivan this week denied a motion to stay (delay) the release of the report pending the appeal.    (Edward Sullivan, an attorney with the Justice Department's Public Integrity Section, is not related to Judge Sullivan or to Brendan Sullivan, the lead attorney for the late Ted Stevens.)

Judge Sullivan had also ordered that any written comments or objections to that special counsel's report by Edward Sullivan and the other five government attorneys under investigation be filed as addenda to that report upon its release on March 15.  

The document setting out the basis for Edward Sullivan's appeal has been sealed.

The Blog of Legal Times broke this story.   As the BLT notes, four of the six attorneys under scrutiny in the investigation led by court-appointed special counsel Henry Schuelke expressed opposition to release of the report, while two of those attorneys did not oppose its release.  

Except for Edward Sullivan's appeal, the court papers do not identify which of "the Stevens Six" have taken which positions on the release.   The BLT states what I have heard, which is that lawyers representing the late Nicholas Marsh opposed release.    Speculation has been that Brenda Morris (the former Principal Deputy Chief of the Public Integrity Section who served as lead counsel in the Ted Stevens trial) and William Welch (the Public Integrity Section's former Chief) were the two lawyers who did not oppose the release of the Schuelke report. 

UPDATED--Corrected to reflect the correct appellate court.