Anchorage—
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.
Monday, January 19, 2009
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.”
Highlights:
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.
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.”
Highlights:
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.
3. 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.
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.
3. 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.
Sunday, December 28, 2008
Discovery Discussion--and How Criminal and Civil Cases Differ
Anchorage--
A commenter (thanks, Alaska) asked questions about how discovery works, and I am posting my response here because these questions seem to come up frequently.
Discovery is a process required under American law in which one side gives information on the case to the other side. Discovery rules vary by jurisdiction.
In criminal law, discovery was traditionally one-way: The prosecution gave evidence to the defense, but the defense gave nothing to the prosecution. Recently, however, some jurisdictions--including Alaska--have required the defense to provide some discovery to the prosecution. It is still true, though, that the prosecution provides much more information to the defense than the other way around.
The list of what discovery the prosecution is automatically required to provide under Alaska law includes copies of any written and recorded statements made by the defendant; any papers or documents which the prosecution intends to use at trial; any papers or documents which were obtained from or belong to the defendant; and any material or information which tends to negate the guilt of the defendant as to the offense.
An example of what Alaska law requires the defendant to produce to the prosecution is the name, address, and written report of any expert witness. Another example of the limited discovery from the defendant required under Alaska law is that the defendant must give the prosecution advance notice of defenses including alibi, entrapment, and duress.
As this blog has discussed before, the federal rules for discovery require less discovery from the prosecution than Alaska law does.
The prosecution in criminal cases--whatever the jurisdiction--generally has to provide automatically more information than any party has to provide in civil cases of any kind. There generally is a different discovery process in civil matters such as employment mediations than exists in criminal cases.
There are other differences in the ways that criminal cases and civil cases proceed. Civil cases often drag on a long time, while speedy trial rules keep all but the most serious and complicated criminal cases moving along much faster. Civil cases tend to feature depositions and written requests like interrogatories and requests for production. A higher percentage of criminal cases are tried than civil cases.
After handling both kinds of litigation, I have said that lawyers are always preparing to try civil cases but somehow the trial almost always gets derailed by a settlement or some other resolution sort of trial. Attorneys in criminal cases, however, did not get to prepare as much but are often actually going to trial. This is particularly true with misdemeanors. Lawyers handling felonies--particularly a very well-financed team like the attorneys at Williams & Connolly in white-collar crime cases--often do have more time to prepare more like lawyers in civil cases.
A commenter (thanks, Alaska) asked questions about how discovery works, and I am posting my response here because these questions seem to come up frequently.
Discovery is a process required under American law in which one side gives information on the case to the other side. Discovery rules vary by jurisdiction.
In criminal law, discovery was traditionally one-way: The prosecution gave evidence to the defense, but the defense gave nothing to the prosecution. Recently, however, some jurisdictions--including Alaska--have required the defense to provide some discovery to the prosecution. It is still true, though, that the prosecution provides much more information to the defense than the other way around.
The list of what discovery the prosecution is automatically required to provide under Alaska law includes copies of any written and recorded statements made by the defendant; any papers or documents which the prosecution intends to use at trial; any papers or documents which were obtained from or belong to the defendant; and any material or information which tends to negate the guilt of the defendant as to the offense.
An example of what Alaska law requires the defendant to produce to the prosecution is the name, address, and written report of any expert witness. Another example of the limited discovery from the defendant required under Alaska law is that the defendant must give the prosecution advance notice of defenses including alibi, entrapment, and duress.
As this blog has discussed before, the federal rules for discovery require less discovery from the prosecution than Alaska law does.
The prosecution in criminal cases--whatever the jurisdiction--generally has to provide automatically more information than any party has to provide in civil cases of any kind. There generally is a different discovery process in civil matters such as employment mediations than exists in criminal cases.
There are other differences in the ways that criminal cases and civil cases proceed. Civil cases often drag on a long time, while speedy trial rules keep all but the most serious and complicated criminal cases moving along much faster. Civil cases tend to feature depositions and written requests like interrogatories and requests for production. A higher percentage of criminal cases are tried than civil cases.
After handling both kinds of litigation, I have said that lawyers are always preparing to try civil cases but somehow the trial almost always gets derailed by a settlement or some other resolution sort of trial. Attorneys in criminal cases, however, did not get to prepare as much but are often actually going to trial. This is particularly true with misdemeanors. Lawyers handling felonies--particularly a very well-financed team like the attorneys at Williams & Connolly in white-collar crime cases--often do have more time to prepare more like lawyers in civil cases.
Tuesday, December 23, 2008
A Whistleblower's Complaint Fuels the Defense's Fire
Anchorage—
Ted Stevens just got the biggest Christmas present he will receive this year.
An FBI agent who has worked on the Alaska public corruption investigation has alleged that at least two members of the prosecution team against Sen. Stevens engaged in various acts of misconduct.
The unnamed FBI Special Agent states in a complaint seeking whistleblower protection that “I have witnessed or learned of serious violations of policy, rules, and procedures as well as possible criminal violations.”
The alleged misconduct mostly falls into three categories:
1. Specific acts that prejudiced Stevens in his trial. The complaint charges that one or more federal employees intentionally withheld discoverable materials from the defense and schemed to prevent an important witness—VECO employee Rocky Williams—from testifying after the prosecution determined that his testimony would be unfavorable.
2. Improperly close relationships between federal employees and cooperating witnesses in the ongoing criminal investigations into Alaska public corruption. These allegations include taking artwork, getting help in getting a job for a federal employee’s relative, and accepting house-hunting assistance from a confidential source’s relative.
3. Procedural mistakes in handling paperwork. The whistleblower agent’s complaint includes allegations that the FBI and the Department of Justice’s Public Integrity Section have not properly processed boxes of materials collected during the Alaska investigation.
The allegations appear in a complaint prepared by an unnamed FBI Special Agent to facilitate a request for whistleblower protection against retaliation at work, and the Department of Justice filed the document with the court. The complaint is public because U.S. District Judge Emmet Sullivan ordered it released late yesterday afternoon.
The heavily redacted version of the complaint released publicly does not name either the whistleblower or the people the agent is complaining about. Some insights are available, however, through a close reading of the eight-page, single-spaced complaint.
The complaint says that the whistleblower agent made the complaint in part because a book mentions that FBI agent multiple times. Cooperating witness Frank Prewitt published this September a book about his role in the Alaska public corruption scandal that discusses at length the actions of two FBI agents: Mary Beth Kepner and Chad Joy. The heavily redacted complaint says “_________ drew and provided _____ large original drawing of _________ dog as a gift.” Prewitt’s book says that Kepner told Prewitt that her supervisor had met with her regarding a dog portrait that Prewitt’s wife had given to Kepner as a Christmas present, a portrait that Prewitt’s book says his wife painted.
This whistleblower’s complaint is highly significant. It hurts the prosecution because the charges come from the inside. The whistleblower agent states that the agent has worked for years on the Alaska public corruption investigation (codenamed “POLAR PEN,” apparently because—as the Anchorage Daily News noted—the probe started by looking into private prison lobbying efforts). This complaint is in an entirely different league from dark speculations, innuendo, or fulminations on appeal coming from a team of lawyers. For the defense, this complaint is like having a defector walk into your country’s security service with sensitive secrets. For the prosecution, it’s never good to have a key employee with extensive knowledge of the case switch sides on you and blow the whistle.
The complaint is also damaging to the prosecution because some of the allegations against government agents either mirror the actual charges against Ted Stevens or track the defense’s repeated complaints during the trial. As Judge Sullivan noted in his 29-page order directing the release of the complaint, the prosecution’s proof of Stevens’ guilt at trial included evidence that the Senator had accepted artwork and help in getting a job for a relative. And both during and after the trial the defense has relied on charges that the prosecution had repeatedly hidden the ball to request either a dismissal or a new trial.
Although the release of this whistleblower’s complaint is the best news Stevens had had in a while, we have not heard the government’s response to these allegations. The Department of Justice has presumably been conducting an internal investigation of this complaint, which originated as a document aimed at getting whistleblower protections for an employee. The government’s response to these allegations may include denials as well as aspersions on the motivation of the employee making the complaint.
The defense received an unredacted copy of the complaint last week and has already jumped on it. A new motion for dismissal or—alternatively—a new trial appeared less than an hour after the release of the complaint. The aggressive team at Williams & Connolly had already filed several post-trial motions seeking dismissal, a new trial, and/or an evidentiary hearing. One of the grounds relied upon by the defense motions is a letter from prosecution witness Dave Anderson alleging that the prosecution suborned perjury. (The prosecution has responded at length to deny Anderson’s allegations. The government contends that a person identifiable as former legislator Jerry Ward—the father of Anderson’s girlfriend—has been manipulating Anderson in an attempt to prevent prosecution of Ward.)
Going back to the whistleblower’s complaint, much of the document centers on allegations that at least one of the investigators got too close to a half-dozen sources. Convicted briber and star prosecution witness Bill Allen is the only one of those sources named in the redacted version of the complaint, but the evidence strongly suggests that Prewitt is another of those six.
These allegations raise the age-old conflict between experience and coziness. Spending a lot of time with people will help gain information and trust, and some of that is natural in any situation. On the other hand, certain relationships call for an arms’ length distance—such as that between FBI agent and cooperating witness.
The release of this complaint is rife with implications. It delays the sentencing and appeal process in the case of Sen. Stevens. Given Stevens’ strong interest in clearing his name and the boost that this complaint will give his lawyers’ efforts to do so, the complaint’s release may make it even less likely that he will seek a pardon from outgoing President Bush before January 20th.
Attorneys for others in the crosshairs of the ongoing federal investigation have to be licking their lips with glee. Release of this complaint will likely open the door to more disclosure of the federal agents’ interactions with Allen and other cooperating witnesses like Prewitt. Those already convicted at trials may well add these allegations to their appeals, and those not yet charged might see the probe slow down as the Department of Justice deals with these allegations.
Once again, the complaint offers only one side of what in some places sounds like a list of objections to a co-worker’s approach. Although the release of this complaint is just the latest in a series of self-inflicted wounds suffered by the government in the Ted Stevens case, we will learn a lot about how serious this injury is when the government files its response to the latest defense motion.
Ted Stevens just got the biggest Christmas present he will receive this year.
An FBI agent who has worked on the Alaska public corruption investigation has alleged that at least two members of the prosecution team against Sen. Stevens engaged in various acts of misconduct.
The unnamed FBI Special Agent states in a complaint seeking whistleblower protection that “I have witnessed or learned of serious violations of policy, rules, and procedures as well as possible criminal violations.”
The alleged misconduct mostly falls into three categories:
1. Specific acts that prejudiced Stevens in his trial. The complaint charges that one or more federal employees intentionally withheld discoverable materials from the defense and schemed to prevent an important witness—VECO employee Rocky Williams—from testifying after the prosecution determined that his testimony would be unfavorable.
2. Improperly close relationships between federal employees and cooperating witnesses in the ongoing criminal investigations into Alaska public corruption. These allegations include taking artwork, getting help in getting a job for a federal employee’s relative, and accepting house-hunting assistance from a confidential source’s relative.
3. Procedural mistakes in handling paperwork. The whistleblower agent’s complaint includes allegations that the FBI and the Department of Justice’s Public Integrity Section have not properly processed boxes of materials collected during the Alaska investigation.
The allegations appear in a complaint prepared by an unnamed FBI Special Agent to facilitate a request for whistleblower protection against retaliation at work, and the Department of Justice filed the document with the court. The complaint is public because U.S. District Judge Emmet Sullivan ordered it released late yesterday afternoon.
The heavily redacted version of the complaint released publicly does not name either the whistleblower or the people the agent is complaining about. Some insights are available, however, through a close reading of the eight-page, single-spaced complaint.
The complaint says that the whistleblower agent made the complaint in part because a book mentions that FBI agent multiple times. Cooperating witness Frank Prewitt published this September a book about his role in the Alaska public corruption scandal that discusses at length the actions of two FBI agents: Mary Beth Kepner and Chad Joy. The heavily redacted complaint says “_________ drew and provided _____ large original drawing of _________ dog as a gift.” Prewitt’s book says that Kepner told Prewitt that her supervisor had met with her regarding a dog portrait that Prewitt’s wife had given to Kepner as a Christmas present, a portrait that Prewitt’s book says his wife painted.
This whistleblower’s complaint is highly significant. It hurts the prosecution because the charges come from the inside. The whistleblower agent states that the agent has worked for years on the Alaska public corruption investigation (codenamed “POLAR PEN,” apparently because—as the Anchorage Daily News noted—the probe started by looking into private prison lobbying efforts). This complaint is in an entirely different league from dark speculations, innuendo, or fulminations on appeal coming from a team of lawyers. For the defense, this complaint is like having a defector walk into your country’s security service with sensitive secrets. For the prosecution, it’s never good to have a key employee with extensive knowledge of the case switch sides on you and blow the whistle.
The complaint is also damaging to the prosecution because some of the allegations against government agents either mirror the actual charges against Ted Stevens or track the defense’s repeated complaints during the trial. As Judge Sullivan noted in his 29-page order directing the release of the complaint, the prosecution’s proof of Stevens’ guilt at trial included evidence that the Senator had accepted artwork and help in getting a job for a relative. And both during and after the trial the defense has relied on charges that the prosecution had repeatedly hidden the ball to request either a dismissal or a new trial.
Although the release of this whistleblower’s complaint is the best news Stevens had had in a while, we have not heard the government’s response to these allegations. The Department of Justice has presumably been conducting an internal investigation of this complaint, which originated as a document aimed at getting whistleblower protections for an employee. The government’s response to these allegations may include denials as well as aspersions on the motivation of the employee making the complaint.
The defense received an unredacted copy of the complaint last week and has already jumped on it. A new motion for dismissal or—alternatively—a new trial appeared less than an hour after the release of the complaint. The aggressive team at Williams & Connolly had already filed several post-trial motions seeking dismissal, a new trial, and/or an evidentiary hearing. One of the grounds relied upon by the defense motions is a letter from prosecution witness Dave Anderson alleging that the prosecution suborned perjury. (The prosecution has responded at length to deny Anderson’s allegations. The government contends that a person identifiable as former legislator Jerry Ward—the father of Anderson’s girlfriend—has been manipulating Anderson in an attempt to prevent prosecution of Ward.)
Going back to the whistleblower’s complaint, much of the document centers on allegations that at least one of the investigators got too close to a half-dozen sources. Convicted briber and star prosecution witness Bill Allen is the only one of those sources named in the redacted version of the complaint, but the evidence strongly suggests that Prewitt is another of those six.
These allegations raise the age-old conflict between experience and coziness. Spending a lot of time with people will help gain information and trust, and some of that is natural in any situation. On the other hand, certain relationships call for an arms’ length distance—such as that between FBI agent and cooperating witness.
The release of this complaint is rife with implications. It delays the sentencing and appeal process in the case of Sen. Stevens. Given Stevens’ strong interest in clearing his name and the boost that this complaint will give his lawyers’ efforts to do so, the complaint’s release may make it even less likely that he will seek a pardon from outgoing President Bush before January 20th.
Attorneys for others in the crosshairs of the ongoing federal investigation have to be licking their lips with glee. Release of this complaint will likely open the door to more disclosure of the federal agents’ interactions with Allen and other cooperating witnesses like Prewitt. Those already convicted at trials may well add these allegations to their appeals, and those not yet charged might see the probe slow down as the Department of Justice deals with these allegations.
Once again, the complaint offers only one side of what in some places sounds like a list of objections to a co-worker’s approach. Although the release of this complaint is just the latest in a series of self-inflicted wounds suffered by the government in the Ted Stevens case, we will learn a lot about how serious this injury is when the government files its response to the latest defense motion.
Tuesday, December 9, 2008
Rod Blagojevich Shocks This Blog Back Into Action
Anchorage--
Like the rest of those who care about law and politics, your blogger sits agog at the charges announced against Gov. Rod Blagojevich, Democrat of Illinois. It's been all over the news today--the story of a Governor allegedly so dedicated to selling his office that he essentially put up for auction the U.S. Senate seat vacated by Barack Obama even after Blagojevich had reason to know that the feds were tapping his phones. In the words of U.S. Attorney Patrick Fitzgerald, it was “a political corruption crime spree.”
Hubristic, stupid, insane—commentators’ characterizations are numerous for this man who muses about running for President in 2016 even after he knew key associates were talking to federal prosecutors and he was under a Department of Justice microscope.
This blogger was struck by the similarities of this Illinois scandal with some of what we have seen uncovered in the federal investigations into the Alaska public corruption scandals. Like Gov. Blagojevich, Rep. Tom Anderson--an Anchorage Republican who served in the Alaska State Legislature--appeared to keep committing crimes even after each of them knew the feds were watching. (Anderson had even been a cooperating witness—that is, a person who wires up at the FBI’s direction in phone conversations and meetings with unsuspecting suspects—before backing out on his deal and doing unusual legislative favors for Bill Allen of VECO, the corporation that had paid Anderson tens of thousands of dollars in consulting fees.)
And as occurred in Alaska with several legislators, the federal government apparently has evidence of the Illinois Governor and his chief of staff committing crimes on tape. In both Alaska and Illinois, the evidence was unusual because in many public corruption cases the taped evidence consists of people admitting that they had committed crimes in the past, not of them actually doing it contemporaneously. Such contemporaneous evidence—catching people in the act on tape—shows that the investigation is long-running and that the perpetrators are unusually clueless.
A final irony common to the investigations in both states is a high degree of formal education among the public officials caught. Every one of the five public officials convicted in the Alaska public corruption scandals so far has at least one advanced degree, and three of them have law degrees. Both the Illinois Governor and his chief of staff—also charged today—are lawyers. Blagojevich was a prosecutor and a Member of Congress before he ran for Governor as a reformer in reaction to the record of his predecessor, who now sits in federal prison for bribe-taking and other crimes.
Illinois has a sorry history of public corruption. A number of municipal governments—including Chicago’s—have had unfortunate problems with dishonesty, and the last 50 years has seen two of the Land of Lincoln’s Governors go to prison for crimes committed while in office and a third incarcerated for offenses committed after his term in office. In 1970, $800,000 in cash was found in the hotel room of the Illinois Secretary of State when he died—with some of it stuffed in shoe boxes—a fact some thought odd given that in a lifetime of public service he had never earned more than $30,000 a year. (One politician cracked that “It will take a big man to fill his shoe boxes.”)
This terrible tradition in Illinois seems linked to both the state’s historically lax campaign finance laws and an ingrained culture of corruption that led elites in both political parties to expect that public officials would steal. Alaska would do well to try to avoid both of those contributing factors.
Administrative Note: I’m back in Alaska and back posting. Look forward to discussions of the post-trial motions of Ted Stevens and the pre-trial appeal of Bruce Weyhrauch, among other hot topics.
Like the rest of those who care about law and politics, your blogger sits agog at the charges announced against Gov. Rod Blagojevich, Democrat of Illinois. It's been all over the news today--the story of a Governor allegedly so dedicated to selling his office that he essentially put up for auction the U.S. Senate seat vacated by Barack Obama even after Blagojevich had reason to know that the feds were tapping his phones. In the words of U.S. Attorney Patrick Fitzgerald, it was “a political corruption crime spree.”
Hubristic, stupid, insane—commentators’ characterizations are numerous for this man who muses about running for President in 2016 even after he knew key associates were talking to federal prosecutors and he was under a Department of Justice microscope.
This blogger was struck by the similarities of this Illinois scandal with some of what we have seen uncovered in the federal investigations into the Alaska public corruption scandals. Like Gov. Blagojevich, Rep. Tom Anderson--an Anchorage Republican who served in the Alaska State Legislature--appeared to keep committing crimes even after each of them knew the feds were watching. (Anderson had even been a cooperating witness—that is, a person who wires up at the FBI’s direction in phone conversations and meetings with unsuspecting suspects—before backing out on his deal and doing unusual legislative favors for Bill Allen of VECO, the corporation that had paid Anderson tens of thousands of dollars in consulting fees.)
And as occurred in Alaska with several legislators, the federal government apparently has evidence of the Illinois Governor and his chief of staff committing crimes on tape. In both Alaska and Illinois, the evidence was unusual because in many public corruption cases the taped evidence consists of people admitting that they had committed crimes in the past, not of them actually doing it contemporaneously. Such contemporaneous evidence—catching people in the act on tape—shows that the investigation is long-running and that the perpetrators are unusually clueless.
A final irony common to the investigations in both states is a high degree of formal education among the public officials caught. Every one of the five public officials convicted in the Alaska public corruption scandals so far has at least one advanced degree, and three of them have law degrees. Both the Illinois Governor and his chief of staff—also charged today—are lawyers. Blagojevich was a prosecutor and a Member of Congress before he ran for Governor as a reformer in reaction to the record of his predecessor, who now sits in federal prison for bribe-taking and other crimes.
Illinois has a sorry history of public corruption. A number of municipal governments—including Chicago’s—have had unfortunate problems with dishonesty, and the last 50 years has seen two of the Land of Lincoln’s Governors go to prison for crimes committed while in office and a third incarcerated for offenses committed after his term in office. In 1970, $800,000 in cash was found in the hotel room of the Illinois Secretary of State when he died—with some of it stuffed in shoe boxes—a fact some thought odd given that in a lifetime of public service he had never earned more than $30,000 a year. (One politician cracked that “It will take a big man to fill his shoe boxes.”)
This terrible tradition in Illinois seems linked to both the state’s historically lax campaign finance laws and an ingrained culture of corruption that led elites in both political parties to expect that public officials would steal. Alaska would do well to try to avoid both of those contributing factors.
Administrative Note: I’m back in Alaska and back posting. Look forward to discussions of the post-trial motions of Ted Stevens and the pre-trial appeal of Bruce Weyhrauch, among other hot topics.
Monday, November 24, 2008
The Jurors Speak
Berkeley, California—
As an earlier post noted, several jurors in the Ted Stevens trial have been speaking to the press. Their comments shed light on the effectiveness of the strategies and tactics the prosecution and defense used in the five-week trial on charges of failure to follow Senate reporting requirements on gifts. (Thanks to Del Quentin Wilber of the Washington Post, Jesse J. Holland of the Associated Press, Joe Palazzolo of Legal Times, and Colleen Walsh—a juror who has her own blog called “juror 11 explains all” at http://juror11.blogspot.com/.)
Here are the major points that come out of the jurors’ remarks:
1. Ted Stevens hurt himself by testifying. "He looked fragile for most of the trial, and then he testified, and, man, he became this lion," Walsh told the Washington Post. "I thought, 'Wait a minute, if the defense is trying to portray this man as a sympathetic character who didn't know what was going on in his life, why did they put him on the stand and he could recall everything that happened except the gifts?' "
To the two jurors and the two alternates that the Washington Post interviewed, while on the witness stand the Senator “came off as evasive, arrogant and combative, and his answers did not jibe with the evidence.”
Interviews identified at least four statements by Stevens that jurors found incredible:
a. He said that he believed that two employees of the now-defunct oil-services giant VECO that worked on his Alaska home renovation project—Rocky Williams and Dave Anderson—were moonlighting for him or another contractor while laboring on the remodeling.
b. He said that a $2,700 massage chair he received was just a loan, although it was still in his Washington home seven years after he got it.
c. He said that he had not returned items that he had not asked for and in most cases he did not want, including furniture, a professional gas grill, and a salmon statue.
d. He said that even though long-time VECO CEO Bill Allen kept giving Stevens things Stevens did not want, he never changed the locks on the chalet in Alaska to prevent the oil-services titan from putting even more things in the home.
Walsh told the AP that another aspect of the testimony not helpful to Stevens was that “he was kind of demeaning to the lawyer”—showing that Stevens’ aggressive jousting with lead prosecutor Brenda Morris was counterproductive.
“It was kinda interesting to see him shoot himself in the foot,” said Brian Kirst. An alternate who did not deliberate after sitting throughout the trial, Kirst has spoken about the deliberations and the verdict with friends on the panel.
2. Ted Stevens’ frail appearance during the trial probably helped the defense more than all the impressive character testimony his lawyers offered. The defense was that Stevens did not keep track of the renovations to his home and did not stay on top of the household finances, so he was not aware that VECO or Allen had provided much of the work on those renovations without being paid for it. Jurors said the way Stevens sat silently at the defense table for almost five weeks while listening to the testimony on headphones tended to support the notion that he was an elderly grandfather type who relied on others to handle many of his affairs. This image was of course destroyed by the belligerence and detailed memory that the Senator showed on the stand.
The star-filled list of character witnesses—including former Secretary of State Colin Powell—did not, by contrast, make any difference with the jury in its view of the case. Walsh told Legal Times that “We really liked Colin Powell, but the facts still said that [Stevens] got gifts and didn’t report them.” The character testimony never even came up during deliberations, according to Walsh’s comments to Legal Times.
3. Catherine Stevens’ testimony did not help the defense. The defense relied heavily on the theme that Sen. Stevens had assumed that his wife Catherine was responsible for getting and paying the bills for the home renovation, which would mean that he did not knowingly conceal the fact that Allen had arranged for VECO to do tens of thousands of dollars of work on the house.
Catherine Stevens’ appearance on the stand, however, did not advance the jury’s acceptance of this critical defense theme. The jurors apparently zeroed in particularly on her statement that she had not gotten a contract with the construction company she believed was doing most of the work as well as on her incessant complaints about the quality of the work. According to the Washington Post, “Jurors realized she was not closely supervising the project and ignored her testimony….”
4. The taped comment regarding jail time hurt. The prosecutors played a taped phone call that Allen initiated at the feds’ request after he had been confronted and agreed to cooperate with the government’s investigation. In the call, Stevens told Allen that the worst they could expect was “a little time in jail.” During closing arguments, lead defense attorney Brendan Sullivan contended that listening to all the FBI tapes of the Stevens-Allen conversations played at the trial showed that the comment referred to possible exposure over campaign contributions, not the unreported gifts that Stevens was charged with in this case.
This explanation was unavailing, as two jurors told the Washington Post that Stevens’ comment was a telling admission.
5. The defense attorneys’ apparent beliefs that Juror #9 was relatively favorable to the defense and that Juror #11 was likely to be pro-prosecution were both correct. The first full day of jury deliberations, the rest of the jury asked that the judge remove Juror #9 for being disruptive and unable to follow the instructions. This development was widely seen around the courthouse as helpful for the defense. Juror #9 expressed the view that Stevens could not be convicted for not reporting gifts he had not wanted in the first place, and also said that she was concerned about sending the Senator to prison. These reservations did not of course prevent that juror from ultimately convicting Stevens, of course. Juror #11—Walsh—told Legal Times that another juror responded to the first concern by saying “If you get a sweater for Christmas that you don't like, and you don't return it, you still got a gift even if you hate the sweater.” As to the second issue, the Washington Post reported that Walsh said the other jurors told Juror #9 that deciding on punishment was the judge’s job, not the jury’s.
After Juror #4 (Marian Hinnant) left during jury deliberations, the defense’s stated preference was either to wait for that juror to return or to go with 11 jurors rather than adding an alternate to replace Juror #4. It was public information that such alternate would have been Juror #11—Walsh—who sat through the evidence and the arguments before being put on standby status before deliberations started. Speculation was that one of the defense’s concerns about adding the alternate was that Walsh would tend to favor the government, and the jury did return guilty verdicts on all counts in less than six hours of deliberation after the judge installed Walsh in place of Juror #4.
6. The jurors’ acceptance of the government’s case was shown by the way that individual jurors parroted lead prosecutor Brenda Morris’s characterizations of the evidence. It’s a trial lawyer’s dream for jurors to see the case so much the way the lawyer wants them to see it that the jurors describe the case in the words the lawyer has given them. Brenda Morris got to that point. Walsh repeated Morris’s description of Stevens as a “lion,” turning against the defense the statement by Sen. Orrin Hatch in his character testimony for Stevens in which he called the Alaska Senator a “lion of the Senate.” Similarly, Morris had said in her closing argument that Catherine Stevens “is still recovering from the bus he threw her under” and another juror told the Washington Post that Catherine Stevens did not “get the memo about getting thrown under the bus.”
7. The judge’s criticism of the prosecutors for failing to disclose some evidence to the defense as legally required did not affect the jury’s verdict. During the trial, Judge Emmet Sullivan repeatedly lambasted the government’s lawyers for failing to meet their obligations to turn over evidence to the defense. The court excluded some evidence from the trial as punishment for some of those failures, and gave the jury an instruction that it could not consider some evidence because the government had failed to meet those discovery obligations. With the exception of that one instruction, however, all of the court’s criticism of the prosecutors occurred outside the presence of the jury, and the little bit of it that was given to the jury did not seem to make a difference to the jury’s decision. Walsh told Legal Times that this one instruction was never discussed, except in passing, as the jurors read the instructions at the beginning of deliberations. “We were told to focus on the facts. That’s what we did,” Walsh said.
A final observation reflects the unusual twist that one juror is actually blogging about her experiences in the trial. That would be Juror #11, who sat through all the evidence and argument and was then excused before deliberations started. Juror #11—now revealing herself to be Walsh, a program assistant for a church—was named Alternate #1 and was brought back to join the deliberation in place of Juror #4, who had left to go to horse races in California.
Walsh is now walking through the trial on her blog. The blog is colorful—she reveals that she gave pop-culture nicknames to the lawyers like “Mr. Burns” for Brendan Sullivan, “Rosie Perez” for Brenda Morris, and “Perfume McPhee” for prosecutor Nicholas Marsh (for wearing excessive cologne one day).
Despite its fun, Walsh’s blog is a development that has got to disturb the prosecution. It’s one thing to give brief interviews to the press, as some other jurors have done in this case and in previous cases. It’s another thing to give a detailed recounting of the evidence, which can trip up even a prolific note-taker like Walsh appeared to be.
She has already made significant factual errors in describing a meeting recounted by the trial’s first witness, VECO employee John Hess. Walsh states on her blog that Ted Stevens met at the Double Musky restaurant with Bill Allen and Hess to review plans drawn up for the home renovation project, and also strongly suggests that Bob Persons—the Double Musky’s owner and Stevens’ eyes and ears on the remodeling—was present at the meeting. Actually, the meeting was at Jens’, a restaurant in midtown Anchorage, and Persons was not present.
Courts traditionally don’t want to know too much about what happens in jury rooms, and the prosecutors would certainly be happy if Walsh found herself too busy to keep going with her blog.
Administrative Note: As this post’s byline suggests, I’m traveling. I’m also visiting relatives and friends. Posting is likely to be lighter than usual until my return to Alaska on December 5. Happy Thanksgiving.
As an earlier post noted, several jurors in the Ted Stevens trial have been speaking to the press. Their comments shed light on the effectiveness of the strategies and tactics the prosecution and defense used in the five-week trial on charges of failure to follow Senate reporting requirements on gifts. (Thanks to Del Quentin Wilber of the Washington Post, Jesse J. Holland of the Associated Press, Joe Palazzolo of Legal Times, and Colleen Walsh—a juror who has her own blog called “juror 11 explains all” at http://juror11.blogspot.com/.)
Here are the major points that come out of the jurors’ remarks:
1. Ted Stevens hurt himself by testifying. "He looked fragile for most of the trial, and then he testified, and, man, he became this lion," Walsh told the Washington Post. "I thought, 'Wait a minute, if the defense is trying to portray this man as a sympathetic character who didn't know what was going on in his life, why did they put him on the stand and he could recall everything that happened except the gifts?' "
To the two jurors and the two alternates that the Washington Post interviewed, while on the witness stand the Senator “came off as evasive, arrogant and combative, and his answers did not jibe with the evidence.”
Interviews identified at least four statements by Stevens that jurors found incredible:
a. He said that he believed that two employees of the now-defunct oil-services giant VECO that worked on his Alaska home renovation project—Rocky Williams and Dave Anderson—were moonlighting for him or another contractor while laboring on the remodeling.
b. He said that a $2,700 massage chair he received was just a loan, although it was still in his Washington home seven years after he got it.
c. He said that he had not returned items that he had not asked for and in most cases he did not want, including furniture, a professional gas grill, and a salmon statue.
d. He said that even though long-time VECO CEO Bill Allen kept giving Stevens things Stevens did not want, he never changed the locks on the chalet in Alaska to prevent the oil-services titan from putting even more things in the home.
Walsh told the AP that another aspect of the testimony not helpful to Stevens was that “he was kind of demeaning to the lawyer”—showing that Stevens’ aggressive jousting with lead prosecutor Brenda Morris was counterproductive.
“It was kinda interesting to see him shoot himself in the foot,” said Brian Kirst. An alternate who did not deliberate after sitting throughout the trial, Kirst has spoken about the deliberations and the verdict with friends on the panel.
2. Ted Stevens’ frail appearance during the trial probably helped the defense more than all the impressive character testimony his lawyers offered. The defense was that Stevens did not keep track of the renovations to his home and did not stay on top of the household finances, so he was not aware that VECO or Allen had provided much of the work on those renovations without being paid for it. Jurors said the way Stevens sat silently at the defense table for almost five weeks while listening to the testimony on headphones tended to support the notion that he was an elderly grandfather type who relied on others to handle many of his affairs. This image was of course destroyed by the belligerence and detailed memory that the Senator showed on the stand.
The star-filled list of character witnesses—including former Secretary of State Colin Powell—did not, by contrast, make any difference with the jury in its view of the case. Walsh told Legal Times that “We really liked Colin Powell, but the facts still said that [Stevens] got gifts and didn’t report them.” The character testimony never even came up during deliberations, according to Walsh’s comments to Legal Times.
3. Catherine Stevens’ testimony did not help the defense. The defense relied heavily on the theme that Sen. Stevens had assumed that his wife Catherine was responsible for getting and paying the bills for the home renovation, which would mean that he did not knowingly conceal the fact that Allen had arranged for VECO to do tens of thousands of dollars of work on the house.
Catherine Stevens’ appearance on the stand, however, did not advance the jury’s acceptance of this critical defense theme. The jurors apparently zeroed in particularly on her statement that she had not gotten a contract with the construction company she believed was doing most of the work as well as on her incessant complaints about the quality of the work. According to the Washington Post, “Jurors realized she was not closely supervising the project and ignored her testimony….”
4. The taped comment regarding jail time hurt. The prosecutors played a taped phone call that Allen initiated at the feds’ request after he had been confronted and agreed to cooperate with the government’s investigation. In the call, Stevens told Allen that the worst they could expect was “a little time in jail.” During closing arguments, lead defense attorney Brendan Sullivan contended that listening to all the FBI tapes of the Stevens-Allen conversations played at the trial showed that the comment referred to possible exposure over campaign contributions, not the unreported gifts that Stevens was charged with in this case.
This explanation was unavailing, as two jurors told the Washington Post that Stevens’ comment was a telling admission.
5. The defense attorneys’ apparent beliefs that Juror #9 was relatively favorable to the defense and that Juror #11 was likely to be pro-prosecution were both correct. The first full day of jury deliberations, the rest of the jury asked that the judge remove Juror #9 for being disruptive and unable to follow the instructions. This development was widely seen around the courthouse as helpful for the defense. Juror #9 expressed the view that Stevens could not be convicted for not reporting gifts he had not wanted in the first place, and also said that she was concerned about sending the Senator to prison. These reservations did not of course prevent that juror from ultimately convicting Stevens, of course. Juror #11—Walsh—told Legal Times that another juror responded to the first concern by saying “If you get a sweater for Christmas that you don't like, and you don't return it, you still got a gift even if you hate the sweater.” As to the second issue, the Washington Post reported that Walsh said the other jurors told Juror #9 that deciding on punishment was the judge’s job, not the jury’s.
After Juror #4 (Marian Hinnant) left during jury deliberations, the defense’s stated preference was either to wait for that juror to return or to go with 11 jurors rather than adding an alternate to replace Juror #4. It was public information that such alternate would have been Juror #11—Walsh—who sat through the evidence and the arguments before being put on standby status before deliberations started. Speculation was that one of the defense’s concerns about adding the alternate was that Walsh would tend to favor the government, and the jury did return guilty verdicts on all counts in less than six hours of deliberation after the judge installed Walsh in place of Juror #4.
6. The jurors’ acceptance of the government’s case was shown by the way that individual jurors parroted lead prosecutor Brenda Morris’s characterizations of the evidence. It’s a trial lawyer’s dream for jurors to see the case so much the way the lawyer wants them to see it that the jurors describe the case in the words the lawyer has given them. Brenda Morris got to that point. Walsh repeated Morris’s description of Stevens as a “lion,” turning against the defense the statement by Sen. Orrin Hatch in his character testimony for Stevens in which he called the Alaska Senator a “lion of the Senate.” Similarly, Morris had said in her closing argument that Catherine Stevens “is still recovering from the bus he threw her under” and another juror told the Washington Post that Catherine Stevens did not “get the memo about getting thrown under the bus.”
7. The judge’s criticism of the prosecutors for failing to disclose some evidence to the defense as legally required did not affect the jury’s verdict. During the trial, Judge Emmet Sullivan repeatedly lambasted the government’s lawyers for failing to meet their obligations to turn over evidence to the defense. The court excluded some evidence from the trial as punishment for some of those failures, and gave the jury an instruction that it could not consider some evidence because the government had failed to meet those discovery obligations. With the exception of that one instruction, however, all of the court’s criticism of the prosecutors occurred outside the presence of the jury, and the little bit of it that was given to the jury did not seem to make a difference to the jury’s decision. Walsh told Legal Times that this one instruction was never discussed, except in passing, as the jurors read the instructions at the beginning of deliberations. “We were told to focus on the facts. That’s what we did,” Walsh said.
A final observation reflects the unusual twist that one juror is actually blogging about her experiences in the trial. That would be Juror #11, who sat through all the evidence and argument and was then excused before deliberations started. Juror #11—now revealing herself to be Walsh, a program assistant for a church—was named Alternate #1 and was brought back to join the deliberation in place of Juror #4, who had left to go to horse races in California.
Walsh is now walking through the trial on her blog. The blog is colorful—she reveals that she gave pop-culture nicknames to the lawyers like “Mr. Burns” for Brendan Sullivan, “Rosie Perez” for Brenda Morris, and “Perfume McPhee” for prosecutor Nicholas Marsh (for wearing excessive cologne one day).
Despite its fun, Walsh’s blog is a development that has got to disturb the prosecution. It’s one thing to give brief interviews to the press, as some other jurors have done in this case and in previous cases. It’s another thing to give a detailed recounting of the evidence, which can trip up even a prolific note-taker like Walsh appeared to be.
She has already made significant factual errors in describing a meeting recounted by the trial’s first witness, VECO employee John Hess. Walsh states on her blog that Ted Stevens met at the Double Musky restaurant with Bill Allen and Hess to review plans drawn up for the home renovation project, and also strongly suggests that Bob Persons—the Double Musky’s owner and Stevens’ eyes and ears on the remodeling—was present at the meeting. Actually, the meeting was at Jens’, a restaurant in midtown Anchorage, and Persons was not present.
Courts traditionally don’t want to know too much about what happens in jury rooms, and the prosecutors would certainly be happy if Walsh found herself too busy to keep going with her blog.
Administrative Note: As this post’s byline suggests, I’m traveling. I’m also visiting relatives and friends. Posting is likely to be lighter than usual until my return to Alaska on December 5. Happy Thanksgiving.
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