Anchorage, Alaska--
The reader who volunteered that view of Ted Stevens' legacy that I posted in italics at the end of the second part of my mega-analysis of the Department of Justice's abandonment of the Stevens case has told me that he would like his name released. That reader is Mark Regan of Fairbanks, Alaska. Thanks, Mark.
And once again--what do you think will be the legacy of Ted Stevens?
Thursday, April 2, 2009
Roundup of Reactions to Government’s Abandonment of Ted Stevens Case
Anchorage, Alaska—
Ted Stevens is writing his memoirs, and one of his Republican Senate colleagues says “"I think he can get his reputation back. I don't know where he goes to get his legal fees back." -- Paul Kane, Washington Post, “Ex-Senator's Friends Say This Victory Is Bittersweet,” in http://www.washingtonpost.com/wp-dyn/content/article/2009/04/01/AR2009040104171.html?nav=hcmodule
Many of those Senate colleagues, however, are not rushing to honor him after the announcement that the convictions will be voided because “Prosecutorial misconduct aside, Stevens' unreported gifts from a campaign contributor — who can forget the $2,700 massage chair he claimed was a loan? — fed a popular perception of arrogance and abuse of power among Washington's elite.” – Laurie Kellman, Associated Press, “Analysis: Stevens vindicated; what of his legacy?” in http://news.yahoo.com/s/ap/20090402/ap_on_go_co/stevens_vindicated_analysis
Attorney General Eric Holder’s decision to drop the case totally signals both a sharp rebuke to the Bush era Justice Department and Holder’s assertion of authority over the Department, including a Public Integrity Section critics say is plagued by poor management – Josh Gerstein, “Holder’s bold stroke,” Politico, in http://www.politico.com/news/stories/0409/20778.html
The Ted Stevens conviction was “the biggest win for Public Integrity” in more than a decade and now the unit will face more scrutiny, say Josh Gerstein and John Bresnahan, “Holder abandons Stevens prosecution,” Politico, in http://www.politico.com/news/stories/0409/20754.html
Due to prosecutorial misconduct, “the crown jewel conviction of the wide-ranging, years long probe of corruption in Alaska politics is destroyed. A fitting testament, perhaps, to the Bush Justice Department's record of failure.” –Zachary Roth, “Decision To Drop Stevens Case Was Triggered By Latest Government Fumble To Emerge,” www.talkingpointsmemo.com, in http://tpmmuckraker.talkingpointsmemo.com/2009/04/it_sounds_like_the_decision.php#more
In a completely different view, “I firmly believe that today, the likelihood of a Republican escaping conviction for any crime in front of a DC jury is about as much as the aforementioned snowball escaping hell in solid form.” – Martin Knight, “Fratricide and Ted Stevens,” www.redstate.com, in http://www.redstate.com/martin_a_knight/2009/04/01/fratricide-and-ted-stevens/
UPDATE--Correction made to title on post.
Ted Stevens is writing his memoirs, and one of his Republican Senate colleagues says “"I think he can get his reputation back. I don't know where he goes to get his legal fees back." -- Paul Kane, Washington Post, “Ex-Senator's Friends Say This Victory Is Bittersweet,” in http://www.washingtonpost.com/wp-dyn/content/article/2009/04/01/AR2009040104171.html?nav=hcmodule
Many of those Senate colleagues, however, are not rushing to honor him after the announcement that the convictions will be voided because “Prosecutorial misconduct aside, Stevens' unreported gifts from a campaign contributor — who can forget the $2,700 massage chair he claimed was a loan? — fed a popular perception of arrogance and abuse of power among Washington's elite.” – Laurie Kellman, Associated Press, “Analysis: Stevens vindicated; what of his legacy?” in http://news.yahoo.com/s/ap/20090402/ap_on_go_co/stevens_vindicated_analysis
Attorney General Eric Holder’s decision to drop the case totally signals both a sharp rebuke to the Bush era Justice Department and Holder’s assertion of authority over the Department, including a Public Integrity Section critics say is plagued by poor management – Josh Gerstein, “Holder’s bold stroke,” Politico, in http://www.politico.com/news/stories/0409/20778.html
The Ted Stevens conviction was “the biggest win for Public Integrity” in more than a decade and now the unit will face more scrutiny, say Josh Gerstein and John Bresnahan, “Holder abandons Stevens prosecution,” Politico, in http://www.politico.com/news/stories/0409/20754.html
Due to prosecutorial misconduct, “the crown jewel conviction of the wide-ranging, years long probe of corruption in Alaska politics is destroyed. A fitting testament, perhaps, to the Bush Justice Department's record of failure.” –Zachary Roth, “Decision To Drop Stevens Case Was Triggered By Latest Government Fumble To Emerge,” www.talkingpointsmemo.com, in http://tpmmuckraker.talkingpointsmemo.com/2009/04/it_sounds_like_the_decision.php#more
In a completely different view, “I firmly believe that today, the likelihood of a Republican escaping conviction for any crime in front of a DC jury is about as much as the aforementioned snowball escaping hell in solid form.” – Martin Knight, “Fratricide and Ted Stevens,” www.redstate.com, in http://www.redstate.com/martin_a_knight/2009/04/01/fratricide-and-ted-stevens/
UPDATE--Correction made to title on post.
Wednesday, April 1, 2009
It’s No Joke—Ted Stevens Walks on April Fool’s Day (Part Two)
Anchorage—
What misconduct does it appear that the prosecutors committed?
The instances of misconduct by prosecutors that caused these convictions to evaporate legally all fell broadly into the category of giving the defense access to evidence under the control of the prosecution. Our system holds prosecutors to special standards not applied to other lawyers who litigate and try cases. Those special obligations flow from the power the government has to bring criminal charges under our system and the protections our law gives to those charged with crimes. The law requires the prosecution to turn over—or “discover”—evidence to the defense in criminal cases, and failure to do so is a discovery violation.
The defense had complained repeatedly about discovery violations during the trial, and Judge Sullivan had excoriated the prosecutors again and again for not following the legal rules and his orders regarding discovery. This process kept going in post-trial litigation, so much so that one Washington correspondent told me that he would not be surprised if at the next hearing the judge ordered the government lawyers to drop down and do 50 pushups.
The controversy over alleged government misconduct accelerated during that post-trial litigation after the uncovering of a complaint by Special Agent Chad Joy, an FBI agent based in Anchorage. This eight-page document alleged numerous errors by Joy’s colleague Mary Beth Kepner during the federal probe into Alaska public corruption.
Two of Joy’s allegations were particularly critical for Ted Stevens’ defense. Joy charged that Kepner—the investigation’s lead agent—decided to withhold a statement of key prosecution witness and long-time VECO CEO Bill Allen that the defense could have used to hurt Allen’s credibility. Joy also alleged that Public Integrity Section Trial Attorney Nicholas Marsh “inappropriately created [a] scheme” to use the poor health of VECO veteran Rocky Williams as an excuse to send Williams back to Alaska from Washington, D.C. on the eve of trial without notifying either the court or the defense after deciding not to use him as a witness. The defense also had subpoenaed Williams, who died in Anchorage two months after the trial ended, apparently of liver disease.
Then came what the Attorney General used as the nail in the coffin—today’s revelation that the new team of government lawyers had discovered notes taken by two prosecutors of a previously unreported pre-trial interview of Allen. Today’s court filing states that these newly uncovered interview notes show that Allen stated then that he could not recall talking with Bob Persons—a Girdwood restaurant owner and friend of Ted Stevens who served as the caretaker of Stevens’ Girdwood home—about giving a bill to Stevens for the renovations VECO employees did at Stevens’ home.
These notes were very problematic for the prosecution. Although the notes showed that Allen couldn’t remember a conversation with Persons five months before the trial, at the trial Allen gave testimony about such a conversation that helped the prosecution and harmed the defense. Allen testified at the trial that Persons told him to ignore a note Stevens wrote Allen asking that the VECO chief send the Senator a bill because “’Ted’s just covering his ass.’” Ted Stevens’ state of mind was critical in the trial, because his receipt of many valuable things—primarily from Bill Allen and/or VECO—that were not paid for and did not show up as gifts or loans on his mandatory Senate disclosure forms was not really disputed by the defense.
The notes are problematic as well because the provision of Allen’s statements about Ted Stevens to the defense has come up repeatedly as a source of discovery issues, both at the trial and in Joy’s post-trial complaint.
Why are these apparent instances of misconduct so important?
As this blog has noted before, prosecutors are supposed to turn square corners. The traditional statement is that prosecutors are expected to strike blows that are hard but fair.
Anchorage attorney Wev Shea, who served as Acting U.S. Attorney for the District of Alaska, has been writing articles for weeks calling the prosecution of Ted Stevens “corrupt” and “unethical.” While the Attorney General’s statement released today was careful not to accuse any particular government lawyer of misconduct, General Holder’s complete disposal of this case shows an acceptance of a dark view of what the trial prosecutors did in this case.
Conservatives sympathetic to Ted Stevens ask what would happen to a criminal defendant who didn’t get to put on a $2 million defense to help him—in the words of Stevens’ lawyers, “Any citizen can be convicted if prosecutors are hell-bent on ignoring the Constitution and willing to present false evidence.” Liberals wonder why those conservatives only seem to worry about government abuse of power when it is applied against someone like them. Both questions are worth pondering tonight.
Why did the trial prosecutors commit this apparent misconduct?
These problems seemed to flow from three causes: the incredible speed with which this trial occurred following the indictment, the discretionary system for discovery in the federal system, and an apparently untempered zeal among the prosecutors to stamp out public corruption.
This blog has commented before on the unusual speed of this trial and the odd effects of that speed. It was apparently Ted Stevens’ personal decision to plead for a trial that started so soon after the indictment that the verdict could come before the election. Ted Stevens was indicted in late July, and the trial started less than two months later. If the defendant had not demanded that the trial begin so fast, it probably wouldn’t have started yet.
The speed of this trial seemed to interact in negative ways with the discretionary system for discovery in the federal system. In Alaska, there’s essentially an “open file” policy in which basically all the evidence the prosecution possesses is turned over to the defense. In the federal system, by contrast, somebody goes over every page of every document and makes a variety of discretionary decisions about whether to give it up. This case appeared to involve thousands and thousands of pages of evidence. Making discretionary decisions in a fevered atmosphere of speed is a recipe for trouble, and this case seems to show that.
If there was some form of malice—as opposed to carelessness or neglect—in these discovery problems, it may have come from prosecutors who wanted to win too much. All good trial lawyers have a keen competitive spirit, but the attorneys in the Department of Justice’s Public Integrity Section sometimes also appear to have a deep desire to smash public corruption by any means necessary. A missionary zeal layered on top of the normal fighting blood can make for a dangerous combination, and that combination may have produced some distorted judgments.
What would have happened in the trial if this apparent misconduct had not occurred?
Ted Stevens’ lawyers confidently suggested today that the jury would have acquitted the defendant if the prosecutors had not cheated: “In essence, the government tricked the jury into returning a tainted verdict against the Senator based on false evidence.”
The answer to the hypothetical question of “What if?” is not so clear, however. Asking whether the prosecutors in the Ted Stevens case would have secured a conviction without engaging in misconduct is like asking whether baseball superstar Barry Bonds would have hit all those home runs if he hadn’t taken the steroids that a lot of evidence suggests that he took. It’s pretty clear his natural skills and clearly clean period of performance would have led him to hit hundreds of homers, but would Bonds have passed Babe Ruth’s legendary all-time record without the aid of performance-enhancing drugs?
Similarly, the prosecution had a strong case and a relatively low bar to clear under the statute. The government presented at trial numerous e-mail messages and other evidence showing that Ted Stevens knew that Bill Allen and people who regularly worked for VECO were arranging for—and performing--a lot of the work at his home in Girdwood, a ski town about 40 miles southeast of Anchorage. While Ted Stevens and his wife paid well over $100,000 for the renovations at his chalet, it’s undisputed that the Stevenses never paid Allen or VECO anything. Similarly, the prosecution showed that Bob Persons and Bob Penney also provided valuable things to Stevens that the Senator did not disclose.
Also easing the government’s burden was the relatively low bar the prosecution had to clear under the relevant statute. Recall that all the government had to show to get a conviction in this case was that Sen. Stevens had received more than about $300 a year in undisclosed gifts or liabilities. Given this low bar, all this evidence would make the case against Stevens difficult to defend against even if the defense had gotten every page of every document in the government’s possession the day the indictment was announced.
Just like most analysts seem to agree that the closeness of the election returns show that Sen. Stevens would have been re-elected if he had not been convicted eight days before, a survey of journalists who covered the trial would likely show that most would say that the jury would have convicted him of at least some of the seven counts even if the defense had all of the evidence in the government’s possession.
The more important point, however, is that the prosecution’s conduct appears to have tainted the trial and the verdict, just like a baseball superstar’s use of steroids taints his records, no matter how much talent he has. Barry Bonds is not going to the Hall of Fame, and the prosecutors of Ted Stevens are not going to see him be sentenced on
any felony convictions.
What does today’s decision mean for the trial prosecutors?
Both the Department of Justice’s court filing and the Attorney General’s statement noted that the issues of prosecutorial misconduct in the Stevens trial have been referred to the Department’s Office of Professional Responsibility for an internal investigation. Although OPR reviews are sometimes inconclusive, you can bet that this one will be watched closely. The trial prosecutors are under a giant microscope, and their position is very unpleasant.
What does today’s decision mean for the defense team?
Despite the grim faces at the defense lawyers’ press conference today, you can bet they were cheering and slapping hands behind the scenes. This is a very big win for Williams & Connolly and the battalion of attorneys and paralegals who worked on this case for the defense. Particularly happy would be Stevens’ lead attorney Brendan Sullivan, who went about 30 years without ever having a client spend a day in jail. That record—incredible for a criminal defense attorney—was broken recently, but with today’s decision Brendan Sullivan is on another streak.
What effect will today’s announcement have on the federal investigation?
Former State Senate President Ben Stevens (R.-Anchorage) and U.S. Rep. Don Young (R.-Alaska) are probably breathing a little easier tonight, as they likely figure that the probe will at least slow down now. (Although numerous media reports have stated that Ben Stevens and Don Young are under investigation in the federal probe into public corruption in Alaska, neither has been criminally charged and both deny wrongdoing.) That speculation is sound, as the Public Integrity Section has only about 25-30 lawyers and three of them—or approximately 10 percent—were involved in the Ted Stevens trial. Along with those three lawyers, the two FBI agents—Kepner and Joy—apparently most active in the probe are also ensnarled in the internal Department of Justice investigation into alleged misconduct.
The Department of Justice may also be more wary of Allen as a witness, and any such wariness would also help at least some of the potential defendants in “POLAR PEN,” the federal investigation into public corruption in Alaska that has run at least four years this month.
Some weeks ago, a former federal prosecutor told me that if the Department of Justice discovered substantial misconduct by prosecutors involved in handling “POLAR PEN,” there was a good chance that the Department would close down the entire federal investigation into Alaska public corruption. I thought his speculation was so wild I did not even refer to it on this blog. I still find his prediction unlikely, but it doesn’t seem so far out in the blue yonder tonight.
What effect will today’s announcement have on Ted Stevens’ legacy?
Two things seemed likely to me when I heard the announcement this morning:
1. Today—on what would have been his 83rd birthday—my father would have called his old friend Ted Stevens and congratulated him on the news.
2. The chances that Ted Stevens’ name stays on Alaska’s largest airport just went up.
I would add that as a legal matter lead Stevens lawyer Brendan Sullivan was correct today when he said the upcoming voiding of the convictions means that Stevens “is innocent of the charges, as if they'd never been brought."
And Ted Stevens himself said in a statement released through his lawyers that “I always knew that there would be a day when the cloud that surrounded me would be removed. That day has finally come.”
As a matter of history, however, the answer may be different. Posterity will weigh the Senator’s half-century of public service to Alaska as well as evidence that came out at the trial and other information that may arise in the ongoing investigation into the conduct of Ted Stevens’ son Ben Stevens. It will be all of us that will have a share in how that legacy is shaped.
So I decided to throw it open to you. What do you think will be the legacy of Ted Stevens, and how will today’s announcement affect that?
I’ll print any answers you want printed subject to some reasonable length limitations. Please let me know if you authorize the printing of the response (even if edited for length) and the printing of your name. To get you started, I will offer this assessment sent to me tonight by a reader of this blog (I’ll print the name if the reader agrees):
“Ted Stevens did a lot for Alaska. Near the end of his career, he accepted a lot of favors from a corrupt contractor named Bill Allen. Stevens probably would have paid for the favors if Allen had billed him, but Allen didn’t bill him and Stevens should have reported the favors on the Senate gift reporting forms. The federal prosecutors had no business indicting him so close to the 2008 elections. He made tactical mistakes by demanding that trial take place before the election, and by testifying in his own irascible way, and a jury convicted him. The voters turned him out of office. Because the federal prosecutors made so many mistakes in how they handled the case, they agreed to vacate the conviction and dismiss the criminal charges. Ted Stevens’ legacy is like Brendan Sullivan’s former client’s, Oliver North’s: he did something wrong, but prosecutors’ errors tainted his trial and his convictions were set aside. That’s not to say that Ted Stevens shouldn’t have reported Bill Allen’s favors on those Senate reporting forms.”
What do you think, folks?
What misconduct does it appear that the prosecutors committed?
The instances of misconduct by prosecutors that caused these convictions to evaporate legally all fell broadly into the category of giving the defense access to evidence under the control of the prosecution. Our system holds prosecutors to special standards not applied to other lawyers who litigate and try cases. Those special obligations flow from the power the government has to bring criminal charges under our system and the protections our law gives to those charged with crimes. The law requires the prosecution to turn over—or “discover”—evidence to the defense in criminal cases, and failure to do so is a discovery violation.
The defense had complained repeatedly about discovery violations during the trial, and Judge Sullivan had excoriated the prosecutors again and again for not following the legal rules and his orders regarding discovery. This process kept going in post-trial litigation, so much so that one Washington correspondent told me that he would not be surprised if at the next hearing the judge ordered the government lawyers to drop down and do 50 pushups.
The controversy over alleged government misconduct accelerated during that post-trial litigation after the uncovering of a complaint by Special Agent Chad Joy, an FBI agent based in Anchorage. This eight-page document alleged numerous errors by Joy’s colleague Mary Beth Kepner during the federal probe into Alaska public corruption.
Two of Joy’s allegations were particularly critical for Ted Stevens’ defense. Joy charged that Kepner—the investigation’s lead agent—decided to withhold a statement of key prosecution witness and long-time VECO CEO Bill Allen that the defense could have used to hurt Allen’s credibility. Joy also alleged that Public Integrity Section Trial Attorney Nicholas Marsh “inappropriately created [a] scheme” to use the poor health of VECO veteran Rocky Williams as an excuse to send Williams back to Alaska from Washington, D.C. on the eve of trial without notifying either the court or the defense after deciding not to use him as a witness. The defense also had subpoenaed Williams, who died in Anchorage two months after the trial ended, apparently of liver disease.
Then came what the Attorney General used as the nail in the coffin—today’s revelation that the new team of government lawyers had discovered notes taken by two prosecutors of a previously unreported pre-trial interview of Allen. Today’s court filing states that these newly uncovered interview notes show that Allen stated then that he could not recall talking with Bob Persons—a Girdwood restaurant owner and friend of Ted Stevens who served as the caretaker of Stevens’ Girdwood home—about giving a bill to Stevens for the renovations VECO employees did at Stevens’ home.
These notes were very problematic for the prosecution. Although the notes showed that Allen couldn’t remember a conversation with Persons five months before the trial, at the trial Allen gave testimony about such a conversation that helped the prosecution and harmed the defense. Allen testified at the trial that Persons told him to ignore a note Stevens wrote Allen asking that the VECO chief send the Senator a bill because “’Ted’s just covering his ass.’” Ted Stevens’ state of mind was critical in the trial, because his receipt of many valuable things—primarily from Bill Allen and/or VECO—that were not paid for and did not show up as gifts or loans on his mandatory Senate disclosure forms was not really disputed by the defense.
The notes are problematic as well because the provision of Allen’s statements about Ted Stevens to the defense has come up repeatedly as a source of discovery issues, both at the trial and in Joy’s post-trial complaint.
Why are these apparent instances of misconduct so important?
As this blog has noted before, prosecutors are supposed to turn square corners. The traditional statement is that prosecutors are expected to strike blows that are hard but fair.
Anchorage attorney Wev Shea, who served as Acting U.S. Attorney for the District of Alaska, has been writing articles for weeks calling the prosecution of Ted Stevens “corrupt” and “unethical.” While the Attorney General’s statement released today was careful not to accuse any particular government lawyer of misconduct, General Holder’s complete disposal of this case shows an acceptance of a dark view of what the trial prosecutors did in this case.
Conservatives sympathetic to Ted Stevens ask what would happen to a criminal defendant who didn’t get to put on a $2 million defense to help him—in the words of Stevens’ lawyers, “Any citizen can be convicted if prosecutors are hell-bent on ignoring the Constitution and willing to present false evidence.” Liberals wonder why those conservatives only seem to worry about government abuse of power when it is applied against someone like them. Both questions are worth pondering tonight.
Why did the trial prosecutors commit this apparent misconduct?
These problems seemed to flow from three causes: the incredible speed with which this trial occurred following the indictment, the discretionary system for discovery in the federal system, and an apparently untempered zeal among the prosecutors to stamp out public corruption.
This blog has commented before on the unusual speed of this trial and the odd effects of that speed. It was apparently Ted Stevens’ personal decision to plead for a trial that started so soon after the indictment that the verdict could come before the election. Ted Stevens was indicted in late July, and the trial started less than two months later. If the defendant had not demanded that the trial begin so fast, it probably wouldn’t have started yet.
The speed of this trial seemed to interact in negative ways with the discretionary system for discovery in the federal system. In Alaska, there’s essentially an “open file” policy in which basically all the evidence the prosecution possesses is turned over to the defense. In the federal system, by contrast, somebody goes over every page of every document and makes a variety of discretionary decisions about whether to give it up. This case appeared to involve thousands and thousands of pages of evidence. Making discretionary decisions in a fevered atmosphere of speed is a recipe for trouble, and this case seems to show that.
If there was some form of malice—as opposed to carelessness or neglect—in these discovery problems, it may have come from prosecutors who wanted to win too much. All good trial lawyers have a keen competitive spirit, but the attorneys in the Department of Justice’s Public Integrity Section sometimes also appear to have a deep desire to smash public corruption by any means necessary. A missionary zeal layered on top of the normal fighting blood can make for a dangerous combination, and that combination may have produced some distorted judgments.
What would have happened in the trial if this apparent misconduct had not occurred?
Ted Stevens’ lawyers confidently suggested today that the jury would have acquitted the defendant if the prosecutors had not cheated: “In essence, the government tricked the jury into returning a tainted verdict against the Senator based on false evidence.”
The answer to the hypothetical question of “What if?” is not so clear, however. Asking whether the prosecutors in the Ted Stevens case would have secured a conviction without engaging in misconduct is like asking whether baseball superstar Barry Bonds would have hit all those home runs if he hadn’t taken the steroids that a lot of evidence suggests that he took. It’s pretty clear his natural skills and clearly clean period of performance would have led him to hit hundreds of homers, but would Bonds have passed Babe Ruth’s legendary all-time record without the aid of performance-enhancing drugs?
Similarly, the prosecution had a strong case and a relatively low bar to clear under the statute. The government presented at trial numerous e-mail messages and other evidence showing that Ted Stevens knew that Bill Allen and people who regularly worked for VECO were arranging for—and performing--a lot of the work at his home in Girdwood, a ski town about 40 miles southeast of Anchorage. While Ted Stevens and his wife paid well over $100,000 for the renovations at his chalet, it’s undisputed that the Stevenses never paid Allen or VECO anything. Similarly, the prosecution showed that Bob Persons and Bob Penney also provided valuable things to Stevens that the Senator did not disclose.
Also easing the government’s burden was the relatively low bar the prosecution had to clear under the relevant statute. Recall that all the government had to show to get a conviction in this case was that Sen. Stevens had received more than about $300 a year in undisclosed gifts or liabilities. Given this low bar, all this evidence would make the case against Stevens difficult to defend against even if the defense had gotten every page of every document in the government’s possession the day the indictment was announced.
Just like most analysts seem to agree that the closeness of the election returns show that Sen. Stevens would have been re-elected if he had not been convicted eight days before, a survey of journalists who covered the trial would likely show that most would say that the jury would have convicted him of at least some of the seven counts even if the defense had all of the evidence in the government’s possession.
The more important point, however, is that the prosecution’s conduct appears to have tainted the trial and the verdict, just like a baseball superstar’s use of steroids taints his records, no matter how much talent he has. Barry Bonds is not going to the Hall of Fame, and the prosecutors of Ted Stevens are not going to see him be sentenced on
any felony convictions.
What does today’s decision mean for the trial prosecutors?
Both the Department of Justice’s court filing and the Attorney General’s statement noted that the issues of prosecutorial misconduct in the Stevens trial have been referred to the Department’s Office of Professional Responsibility for an internal investigation. Although OPR reviews are sometimes inconclusive, you can bet that this one will be watched closely. The trial prosecutors are under a giant microscope, and their position is very unpleasant.
What does today’s decision mean for the defense team?
Despite the grim faces at the defense lawyers’ press conference today, you can bet they were cheering and slapping hands behind the scenes. This is a very big win for Williams & Connolly and the battalion of attorneys and paralegals who worked on this case for the defense. Particularly happy would be Stevens’ lead attorney Brendan Sullivan, who went about 30 years without ever having a client spend a day in jail. That record—incredible for a criminal defense attorney—was broken recently, but with today’s decision Brendan Sullivan is on another streak.
What effect will today’s announcement have on the federal investigation?
Former State Senate President Ben Stevens (R.-Anchorage) and U.S. Rep. Don Young (R.-Alaska) are probably breathing a little easier tonight, as they likely figure that the probe will at least slow down now. (Although numerous media reports have stated that Ben Stevens and Don Young are under investigation in the federal probe into public corruption in Alaska, neither has been criminally charged and both deny wrongdoing.) That speculation is sound, as the Public Integrity Section has only about 25-30 lawyers and three of them—or approximately 10 percent—were involved in the Ted Stevens trial. Along with those three lawyers, the two FBI agents—Kepner and Joy—apparently most active in the probe are also ensnarled in the internal Department of Justice investigation into alleged misconduct.
The Department of Justice may also be more wary of Allen as a witness, and any such wariness would also help at least some of the potential defendants in “POLAR PEN,” the federal investigation into public corruption in Alaska that has run at least four years this month.
Some weeks ago, a former federal prosecutor told me that if the Department of Justice discovered substantial misconduct by prosecutors involved in handling “POLAR PEN,” there was a good chance that the Department would close down the entire federal investigation into Alaska public corruption. I thought his speculation was so wild I did not even refer to it on this blog. I still find his prediction unlikely, but it doesn’t seem so far out in the blue yonder tonight.
What effect will today’s announcement have on Ted Stevens’ legacy?
Two things seemed likely to me when I heard the announcement this morning:
1. Today—on what would have been his 83rd birthday—my father would have called his old friend Ted Stevens and congratulated him on the news.
2. The chances that Ted Stevens’ name stays on Alaska’s largest airport just went up.
I would add that as a legal matter lead Stevens lawyer Brendan Sullivan was correct today when he said the upcoming voiding of the convictions means that Stevens “is innocent of the charges, as if they'd never been brought."
And Ted Stevens himself said in a statement released through his lawyers that “I always knew that there would be a day when the cloud that surrounded me would be removed. That day has finally come.”
As a matter of history, however, the answer may be different. Posterity will weigh the Senator’s half-century of public service to Alaska as well as evidence that came out at the trial and other information that may arise in the ongoing investigation into the conduct of Ted Stevens’ son Ben Stevens. It will be all of us that will have a share in how that legacy is shaped.
So I decided to throw it open to you. What do you think will be the legacy of Ted Stevens, and how will today’s announcement affect that?
I’ll print any answers you want printed subject to some reasonable length limitations. Please let me know if you authorize the printing of the response (even if edited for length) and the printing of your name. To get you started, I will offer this assessment sent to me tonight by a reader of this blog (I’ll print the name if the reader agrees):
“Ted Stevens did a lot for Alaska. Near the end of his career, he accepted a lot of favors from a corrupt contractor named Bill Allen. Stevens probably would have paid for the favors if Allen had billed him, but Allen didn’t bill him and Stevens should have reported the favors on the Senate gift reporting forms. The federal prosecutors had no business indicting him so close to the 2008 elections. He made tactical mistakes by demanding that trial take place before the election, and by testifying in his own irascible way, and a jury convicted him. The voters turned him out of office. Because the federal prosecutors made so many mistakes in how they handled the case, they agreed to vacate the conviction and dismiss the criminal charges. Ted Stevens’ legacy is like Brendan Sullivan’s former client’s, Oliver North’s: he did something wrong, but prosecutors’ errors tainted his trial and his convictions were set aside. That’s not to say that Ted Stevens shouldn’t have reported Bill Allen’s favors on those Senate reporting forms.”
What do you think, folks?
Listen to "Alaska News Nightly" Tonight on Public Radio, and...
Anchorage--
...there's a good chance that you'll hear me talk about the Department of Justice's announcement today of its abandonment of the Ted Stevens prosecution. Even if portions of my interview are not on the radio tonight, you'll benefit from listening to the report, which will feature news gathered in Washington, D.C. and in Alaska.
If you can't hear this report on the radio, it will be available at http://www.aprn.org/ on the Internet.
Part Two of my mega-analysis still to come.
...there's a good chance that you'll hear me talk about the Department of Justice's announcement today of its abandonment of the Ted Stevens prosecution. Even if portions of my interview are not on the radio tonight, you'll benefit from listening to the report, which will feature news gathered in Washington, D.C. and in Alaska.
If you can't hear this report on the radio, it will be available at http://www.aprn.org/ on the Internet.
Part Two of my mega-analysis still to come.
It’s No Joke: The Attorney General Asks the Court to Erase the Convictions Against Ted Stevens
Anchorage, Alaska—
This case is over.
In an astonishing development, the Department of Justice has requested that the court set aside the jury verdicts against Ted Stevens and dismiss the indictment against him with prejudice.
The bombshell came in a three-page filing this morning that cites the Department’s discovery of evidence that the trial prosecutors should have turned over to the defense. Today’s filing says this evidence was uncovered last week by the new team of government lawyers brought in to investigate allegations of prosecutorial misconduct during the trial. The newly discovered evidence casts doubt on the veracity of critical evidence against Stevens provided by key prosecution witness Bill Allen. In the face of that new evidence, the motion filed today acknowledged that one of the government’s own previous filings was “inaccurate.”
There is so much to sort through here that this blog post will be in a question and answer format. This is Part One of a two-part post.
What is the effect of this decision on the guilty verdicts against Ted Stevens that the jury in Washington, D.C. delivered last October?
This case is dead, and the jury verdicts will be quickly voided as a matter of law. The filing this morning is formally couched as a motion by the government in which the prosecution asks the court to set aside the verdict and dismiss the indictment with prejudice, but that is definitely just a formality. In a verdict announced last October, a jury in Washington, D.C. found former U.S. Sen. Ted Stevens (R.-Alaska) guilty of seven counts of failing to disclose gifts and/or loans on annual Senate forms. That case is not only lying on the ground with a stake in its heart, it’s been buried so far under the surface of the earth the world’s best oil and gas driller couldn’t get to it.
Until this morning, the case was in post-trial proceedings before the judge decided post-trial motions and either went to sentencing or granted the defense some relief. That’s still officially true, but Judge Emmet Sullivan will obviously grant the government’s request now. He set a hearing for April 7 at 10 a.m. at which that is almost certain to occur.
Was this decision by the government to kill the case expected?
Not by me. As readers of this blog—and viewers of my C-SPAN TV appearance—will recall, I predicted that Judge Sullivan would ultimately not grant the defense motions and would instead sentence Ted Stevens, thus setting up a lengthy appeal.
So much for that prediction—and so much for my failure of imagination. I never considered the possibility that the Department of Justice would pull the plug on its own case.
It appears that today’s announcement amazed most other observers as well.
So congratulations goes to those who at least predicted that Judge Sullivan would either order a new trial or dismiss the indictment. One was Jeff Levin, a New Hampshire lawyer who told me some weeks ago that he thought that Special Agent Chad Joy’s allegations about the prosecution’s conduct that came out after the trial would lead the judge to dismiss the case.
Why did the Attorney General make this decision to kill the case, particularly after the federal government devoted so many years and so many dollars to this prosecution?
Let’s start with the statement issued this morning issued by Attorney General Eric Holder and then go to the analysis of National Public Radio’s Nina Totenberg, who broke this story early this morning.
General Holder said that based on a “careful review,” he had concluded that “certain information should have been provided to the defense for use at trial.” Based on that conclusion and “in consideration of the totality of the circumstances of this particular case,” he determined that it was “in the interest of justice” to dismiss the indictment and end the case.
Totenberg’s report suggests additional factors in Holder’s decision to kill the case:
1. The increasing drumbeat of allegations of misconduct by DoJ attorneys as well as by an FBI agent would lead to “more ugly hearings” in front of Judge Sullivan.
2. Holder holds a particular place in his heart for the Public Integrity Section, the DoJ unit where the Attorney General began his legal career and the outfit which has handled the investigation and prosecution of Ted Stevens and others caught up in the federal probe into public corruption in Alaska. The two top-ranking attorneys in the Public Integrity Section were among the three Department of Justice lawyers held in contempt by Judge Sullivan in post-trial proceedings. The hearings coming up appeared likely to tarnish the reputation of that unit as well as the Department in general.
3. Holder is well-acquainted with Judge Sullivan, with whom he served on the bench as a fellow judge on the Superior Court of the District of Columbia before they both rose in government, and the Attorney General was disturbed by the harsh denunciations the trial judge has issued against the prosecution team.
4. Stevens is 85 now.
5. Stevens is no longer in the Senate, having been defeated in a re-election bid occurring eight days after the jury returned the verdicts.
6. “Perhaps most importantly, Justice Department officials say Holder wants to send a message to prosecutors throughout the department that actions he regards as misconduct will not be tolerated.” According to sources contacted by Totenberg, Holder “was horrified by the failure of prosecutors to turn over all relevant materials to the defense.”
I would add these additional speculations about today’s announcement. Today’s announcement of the discovery violation uncovered last week could be seen as either the nail in the coffin for Holder or just a post to hang his hat on so as to justify getting out of a case that he felt he had to end.
Additionally--as noted by Jason Zengerle of The New Republic--noted, it was easier for the Obama administration to admit errors that occurred under a past regime than to confess that it itself had made mistakes. This last factor was not a reason for today's announcement, but obviously made it less painful.
Does the decision announced today show that the Department of Justice prosecutors in the Bush administration deliberately made mistakes to help Ted Stevens?
No, and I would not address this question if I did not see it raised so much. The trial prosecutors clearly wanted the jury to convict Ted Stevens. A hidden agenda to go into the tank was not the problem.
Does the decision announced today show that Democratic-leaning lawyers in the Department of Justice made up the case against Ted Stevens out of whole cloth just to get him out of office?
No, and I would not address this question either if I did not see or hear it repeatedly. Under the analysis of anyone who understands government, the case against a sitting U.S. Senator was so important that very high-ranking officials in the Bush administration’s Justice Department—including the Attorney General—must have reviewed the case before authorizing the search warrant on Ted Stevens’ house, let alone his indictment. It is highly likely that President George W. Bush was personally made aware of the status of the case before the search warrant and before the indictment.
Coming up in Part Two: Why did the trial prosecutors commit this apparent misconduct? What would have happened in the trial if this apparent misconduct had not occurred? What does today’s decision mean for the trial prosecutors? What does it mean for the defense team? What effect will today’s announcement have on the federal investigation? What effect will today’s announcement have on Ted Stevens’ legacy?
(UPDATE--Edited to avoid repetition. Thanks, Bob Weinstein.)
This case is over.
In an astonishing development, the Department of Justice has requested that the court set aside the jury verdicts against Ted Stevens and dismiss the indictment against him with prejudice.
The bombshell came in a three-page filing this morning that cites the Department’s discovery of evidence that the trial prosecutors should have turned over to the defense. Today’s filing says this evidence was uncovered last week by the new team of government lawyers brought in to investigate allegations of prosecutorial misconduct during the trial. The newly discovered evidence casts doubt on the veracity of critical evidence against Stevens provided by key prosecution witness Bill Allen. In the face of that new evidence, the motion filed today acknowledged that one of the government’s own previous filings was “inaccurate.”
There is so much to sort through here that this blog post will be in a question and answer format. This is Part One of a two-part post.
What is the effect of this decision on the guilty verdicts against Ted Stevens that the jury in Washington, D.C. delivered last October?
This case is dead, and the jury verdicts will be quickly voided as a matter of law. The filing this morning is formally couched as a motion by the government in which the prosecution asks the court to set aside the verdict and dismiss the indictment with prejudice, but that is definitely just a formality. In a verdict announced last October, a jury in Washington, D.C. found former U.S. Sen. Ted Stevens (R.-Alaska) guilty of seven counts of failing to disclose gifts and/or loans on annual Senate forms. That case is not only lying on the ground with a stake in its heart, it’s been buried so far under the surface of the earth the world’s best oil and gas driller couldn’t get to it.
Until this morning, the case was in post-trial proceedings before the judge decided post-trial motions and either went to sentencing or granted the defense some relief. That’s still officially true, but Judge Emmet Sullivan will obviously grant the government’s request now. He set a hearing for April 7 at 10 a.m. at which that is almost certain to occur.
Was this decision by the government to kill the case expected?
Not by me. As readers of this blog—and viewers of my C-SPAN TV appearance—will recall, I predicted that Judge Sullivan would ultimately not grant the defense motions and would instead sentence Ted Stevens, thus setting up a lengthy appeal.
So much for that prediction—and so much for my failure of imagination. I never considered the possibility that the Department of Justice would pull the plug on its own case.
It appears that today’s announcement amazed most other observers as well.
So congratulations goes to those who at least predicted that Judge Sullivan would either order a new trial or dismiss the indictment. One was Jeff Levin, a New Hampshire lawyer who told me some weeks ago that he thought that Special Agent Chad Joy’s allegations about the prosecution’s conduct that came out after the trial would lead the judge to dismiss the case.
Why did the Attorney General make this decision to kill the case, particularly after the federal government devoted so many years and so many dollars to this prosecution?
Let’s start with the statement issued this morning issued by Attorney General Eric Holder and then go to the analysis of National Public Radio’s Nina Totenberg, who broke this story early this morning.
General Holder said that based on a “careful review,” he had concluded that “certain information should have been provided to the defense for use at trial.” Based on that conclusion and “in consideration of the totality of the circumstances of this particular case,” he determined that it was “in the interest of justice” to dismiss the indictment and end the case.
Totenberg’s report suggests additional factors in Holder’s decision to kill the case:
1. The increasing drumbeat of allegations of misconduct by DoJ attorneys as well as by an FBI agent would lead to “more ugly hearings” in front of Judge Sullivan.
2. Holder holds a particular place in his heart for the Public Integrity Section, the DoJ unit where the Attorney General began his legal career and the outfit which has handled the investigation and prosecution of Ted Stevens and others caught up in the federal probe into public corruption in Alaska. The two top-ranking attorneys in the Public Integrity Section were among the three Department of Justice lawyers held in contempt by Judge Sullivan in post-trial proceedings. The hearings coming up appeared likely to tarnish the reputation of that unit as well as the Department in general.
3. Holder is well-acquainted with Judge Sullivan, with whom he served on the bench as a fellow judge on the Superior Court of the District of Columbia before they both rose in government, and the Attorney General was disturbed by the harsh denunciations the trial judge has issued against the prosecution team.
4. Stevens is 85 now.
5. Stevens is no longer in the Senate, having been defeated in a re-election bid occurring eight days after the jury returned the verdicts.
6. “Perhaps most importantly, Justice Department officials say Holder wants to send a message to prosecutors throughout the department that actions he regards as misconduct will not be tolerated.” According to sources contacted by Totenberg, Holder “was horrified by the failure of prosecutors to turn over all relevant materials to the defense.”
I would add these additional speculations about today’s announcement. Today’s announcement of the discovery violation uncovered last week could be seen as either the nail in the coffin for Holder or just a post to hang his hat on so as to justify getting out of a case that he felt he had to end.
Additionally--as noted by Jason Zengerle of The New Republic--noted, it was easier for the Obama administration to admit errors that occurred under a past regime than to confess that it itself had made mistakes. This last factor was not a reason for today's announcement, but obviously made it less painful.
Does the decision announced today show that the Department of Justice prosecutors in the Bush administration deliberately made mistakes to help Ted Stevens?
No, and I would not address this question if I did not see it raised so much. The trial prosecutors clearly wanted the jury to convict Ted Stevens. A hidden agenda to go into the tank was not the problem.
Does the decision announced today show that Democratic-leaning lawyers in the Department of Justice made up the case against Ted Stevens out of whole cloth just to get him out of office?
No, and I would not address this question either if I did not see or hear it repeatedly. Under the analysis of anyone who understands government, the case against a sitting U.S. Senator was so important that very high-ranking officials in the Bush administration’s Justice Department—including the Attorney General—must have reviewed the case before authorizing the search warrant on Ted Stevens’ house, let alone his indictment. It is highly likely that President George W. Bush was personally made aware of the status of the case before the search warrant and before the indictment.
Coming up in Part Two: Why did the trial prosecutors commit this apparent misconduct? What would have happened in the trial if this apparent misconduct had not occurred? What does today’s decision mean for the trial prosecutors? What does it mean for the defense team? What effect will today’s announcement have on the federal investigation? What effect will today’s announcement have on Ted Stevens’ legacy?
(UPDATE--Edited to avoid repetition. Thanks, Bob Weinstein.)
Wednesday, March 25, 2009
Here's a Vote for You Non-Alaskans to Visit the Great Land
Cliff Groh, Steve Lindbeck, and Ed Miner
on the Susitna Valley Winter Trail, Sunday,
March 22, 2009. (Photo by Robert Gottstein.)
Anchorage, Alaska--
Several Alaskans discussed the state of the federal investigation into Alaska public corruption and the declining fortunes of the news media during a weekend snowmachine trip. Although the photo was of course taken on the cloudy day, the mountain views--including Denali--were spectacular the day before. I recommend visits to our fair state by those who have never had the pleasure.
Monday, March 23, 2009
Links to Video Interviews of Me and Others on the Ted Stevens Trial
Anchorage, Alaska--
Those who didn't catch Brian Lamb interviewing me on C-SPAN can see a video posted at http://www.c-span.org/Watch/watch.aspx?ProgramId=HP-A-41121 on the C-SPAN website. I encourage you to review the entire portion of the C-SPAN website devoted to the Ted Stevens trial and the Alaska public corruption investigation, and that site is located on your Internet at
http://www.c-span.org/Stevenstrial/default.aspx . You will find there an interview of Anchorage Daily News reporter Rich Mauer televised last night as well as interviews of former Acting U.S. Attorney Wev Shea, investigative reporter Chuck Neubauer, and Stevens trial juror/blogger Colleen Walsh. That link will also take you to numerous other links helpful to understanding the Alaska public corruption investigation.
Those who didn't catch Brian Lamb interviewing me on C-SPAN can see a video posted at http://www.c-span.org/Watch/watch.aspx?ProgramId=HP-A-41121 on the C-SPAN website. I encourage you to review the entire portion of the C-SPAN website devoted to the Ted Stevens trial and the Alaska public corruption investigation, and that site is located on your Internet at
http://www.c-span.org/Stevenstrial/default.aspx . You will find there an interview of Anchorage Daily News reporter Rich Mauer televised last night as well as interviews of former Acting U.S. Attorney Wev Shea, investigative reporter Chuck Neubauer, and Stevens trial juror/blogger Colleen Walsh. That link will also take you to numerous other links helpful to understanding the Alaska public corruption investigation.
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