Feds botched Stevens case

Re­port slams prose­cu­tors

The Washington Times Daily - - Front Page - BY JERRY SEPER

Jus­tice Depart­ment prose­cu­tors bun­gled the in­ves­ti­ga­tion and pros­e­cu­tion of Sen. Ted Stevens, a probe that was per­me­ated by the “sys­tem­atic con­ceal­ment of sig­nif­i­cant ex­cul­pa­tory ev­i­dence,” in some in­stances in­ten­tion­ally, that would have in­de­pen­dently cor­rob­o­rated his de­fense and tes­ti­mony, a court-or­dered re­port re­leased Thurs­day says.

In a blis­ter­ing 514-page re­port, Spe­cial Coun­sel Henry F. Schuelke III said Jus­tice Depart­ment prose­cu­tors never con­ducted a com­pre­hen­sive re­view of ev­i­dence fa­vor­able to the Alaska Re­pub­li­can and failed to dis­close to de­fense at­tor­neys notes of wit­ness in­ter­views con­tain­ing sig­nif­i­cant in­for­ma­tion.

The re­port also says two fed­eral prose­cu­tors in­ten­tion­ally with­held and con­cealed sig­nif­i­cant in­for­ma­tion from the Stevens de­fense team that

would have se­ri­ously dam­aged the tes­ti­mony and cred­i­bil­ity of the gov­ern­ment’s key wit­ness.

Months af­ter a jury con­victed Stevens in Oc­to­ber 2008 of ac­cept­ing and con­ceal­ing money for home ren­o­va­tions and other gifts, the re­port says, a new team of prose­cu­tors dis­cov­ered, in short or­der, that some of the ex­cul­pa­tory in­for­ma­tion had been with­held. At that point, it says, the Jus­tice Depart­ment moved to set aside the ver­dict and dis­miss an in­dict­ment with prej­u­dice.

New prose­cu­tors were as­signed af­ter U.S. Dis­trict Judge Em­met G. Sul­li­van, in a stun­ning re­buke, held two prose­cu­tors in con­tempt for fail­ing to com­ply with the court’s or­der to dis­close in­for­ma­tion to Stevens’ at­tor­neys and to the court re­gard­ing al­le­ga­tions of pros­e­cu­to­rial mis­con­duct, which were made af­ter trial by an FBI agent who worked on the case.

In throw­ing out the case against Stevens, Judge Sul­li­van said, “For nearly 25 years, I’ve told de­fen­dants ap­pear­ing be­fore me that in my court­room they will re­ceive a fair trial and I will make sure of it. In nearly 25 years on the bench, I have never seen any­thing ap­proach­ing the mis­han­dling and the mis­con­duct I have seen in this case.”

Stevens, who served in the Se­nate longer than any other Re­pub­li­can in the cham­ber’s his­tory, died at age 86 in a plane crash Aug. 9, 2010. His de Hav­il­land Canada DHC-3 Ot­ter went down 17 miles north of Dilling­ham, Alaska, while en route to a pri­vate fish­ing lodge. Four other peo­ple were killed in the crash, though four pas­sen­gers, in­clud­ing for­mer NASA Ad­min­is­tra­tor Sean O’keefe, sur­vived.

The se­na­tor lost a tight re-elec­tion race in 2008, mere days af­ter he was con­victed of fail­ing to dis­close more than $250,000 he was ac­cused of re­ceiv­ing in gifts and home ren­o­va­tions.

The Schuelke in­ves­ti­ga­tion lasted two years and in­volved the ex­am­i­na­tion and anal­y­sis of more than 128,000 pages of doc­u­ments, in­clud­ing the trial record, prose­cu­tors’ and agents’ emails, FBI re­ports and hand­writ­ten notes, and de­po­si­tions of prose­cu­tors, agents and oth­ers. As a re­sult of the dis­missal of the in­dict­ment against Stevens, the con­vic­tions of Alaska state leg­is­la­tors Peter Kott and Vic­tor Kohring were reversed and new tri­als or­dered.

The re­port says sig­nif­i­cant ex­cul­pa­tory in­for­ma­tion in the cases against Mr. Kott and Mr. Kohring were con­cealed from the de­fense, in­clud­ing the same im­peach­ment in­for­ma­tion about the same gov­ern­ment key wit­ness that was con­cealed from Stevens.

In a state­ment, Jus­tice Depart­ment spokes­woman Laura Sweeney said the depart­ment co­op­er­ated fully with Mr. Schuelke’s in­ves­ti­ga­tion and pro­vided in­for­ma­tion through­out the in­ves­ti­ga­tion. She said the depart­ment is in the process of mak­ing an in­de­pen­dent as­sess­ment of the con­duct and, to the ex­tent it is ap­pro­pri­ate and in ac­cor­dance with privacy laws, will en­deavor to make its find­ings public when that re­view is final.

Since the Stevens case was dis­missed, Ms. Sweeney said, the depart­ment has in­sti­tuted a “sweep­ing train­ing cur­ricu­lum for all fed­eral prose­cu­tors and has taken “un­prece­dented steps” to en­sure that prose­cu­tors, agents and par­ale­gals have the nec­es­sary train­ing and re­sources to prop­erly ful­fill their dis­cov­ery and ethics obli­ga­tions.

“Jus­tice is served only when all par­ties ad­here to the rules and case law that gov­ern our crim­i­nal jus­tice sys­tem,” she said. “While the depart­ment meets its dis­cov­ery obli­ga­tions in nearly all cases, even one fail­ure is one too many.

“But it would be an in­jus­tice of a dif­fer­ent kind for the thou­sands of men and women who spend their lives fight­ing to up­hold the law and keep our com­mu­ni­ties safe to be tainted by the mis­guided no­tion that in­stances of in­ten­tional pros­e­cu­to­rial mis­con­duct are any­thing but rare oc­cur­rences,” she said.

Ken­neth L. Wain­stein, coun­sel for Alaska fed­eral pros­e­cu­tor Joe Bot­tini, said the na­tion’s crim­i­nal jus­tice sys­tem is based on prin­ci­ples of fair­ness and due process and the fun­da­men­tal re­quire­ment that crim­i­nal ac­cu­sa­tions should be lev­eled only when a per­son in­ten­tion­ally vi­o­lates the law and not when one sim­ply makes mis­takes.

“The process re­sult­ing in to­day’s spe­cial pros­e­cu­tor’s re­port de­vi­ated dra­mat­i­cally from those prin­ci­ples, and the re­sult is a good man’s hu­man er­rors have been mis­cast as in­ten­tional crim­i­nal mis­con­duct,” Mr. Wain­stein, a for­mer U.S. at­tor­ney for the Dis­trict of Columbia, said Thurs­day.

“We have writ­ten the at­tor­ney gen­eral to ex­plain how far this process de­vi­ated from these prin­ci­ples, and to as­sure him and Joe Bot­tini’s Jus­tice Depart­ment col­leagues that, de­spite the mis­char­ac­ter­i­za­tions in to­day’s re­port, Joe is a man of honor and in­tegrity who has de­voted his en­tire ca­reer to serv­ing these prin­ci­ples and the Depart­ment of Jus­tice and its mis­sion,” he said.

Mr. Bot­tini is among sev­eral named in the Schuelke in­ves­ti­ga­tion. The oth­ers are Wil­liam M. Welch II, head of the Jus­tice Depart­ment’s cor­rup­tion­fight­ing Public In­tegrity Sec­tion; Brenda K. Mor­ris, the Public In­tegrity Sec­tion’s prin­ci­pal deputy; and two lawyers from the sec­tion, Ni­cholas A. Marsh and Ed­ward P. Sul­li­van. An as­sis­tant U.S. at­tor­ney in Alaska, James A. Goeke, also is named in the re­port.

Dur­ing the trial, Bill Allen, the gov­ern­ment’s key wit­ness and a wealthy oil contractor, tes­ti­fied that an­other wit­ness told him Stevens asked to be billed for the work on his home only to “cover” him­self so the work would not ap­pear to have been an im­proper gift. It turned out to be one of the more dam­ag­ing mo­ments of Allen’s tes­ti­mony and helped un­der­cut the de­fense’s con­tention that Stevens in­tended to pay for all of the ren­o­va­tions to his Gird­wood, Alaska, home.

But the new pros­e­cu­tion team found notes from the orig­i­nal team in­di­cat­ing that Allen, when first in­ter­viewed, had no rec­ol­lec­tion of such a con­ver­sa­tion with the other wit­ness.

The Schuelke re­port does not rec­om­mend that any crim­i­nal charges be brought, but blames prose­cu­tors for in­ten­tion­ally with­hold­ing and con­ceal­ing ev­i­dence.


The case against Sen. Ted Stevens, Alaska Re­pub­li­can, for ac­cept­ing and con­ceal­ing gifts was thrown out af­ter his guilty ver­dict. Af­ter a two years of ex­am­i­na­tion of doc­u­ments, a re­port re­leased Thurs­day says the Jus­tice Depart­ment bun­gled the in­ves­ti­ga­tion and pros­e­cu­tion.

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