A federal judge this morning tossed out the conviction of former senator Ted Stevens and assigned an outside lawyer to investigate allegations of misconduct by the prosecutors who tried him on public corruption charges.
In throwing out the October conviction, U.S. District Judge Emmet G. Sullivan called accusations that prosecutors mishandled evidence and witnesses "shocking and disturbing." In his 25 years on the bench, the judge said he had "never seen anything approaching the mishandling and misconduct in this case." He then urged Attorney General Eric H. Holder to better train prosecutors about the requirements for turning over evidence to defense lawyers that may help their case.
Stevens, 85, who narrowly lost reelection eight days after being found guilty of seven counts of lying on financial disclosure forms, said the actions of prosecutors had "nearly destroyed" his faith in the criminal justice system. But he thanked the judge and a new team of Justice Department lawyers for pressing to uncover the truth.
One of those Justice Department lawyers, Paul O'Brien, told Sullivan that "we deeply, deeply regret that this occurred."
Last week, the Justice Department asked Sullivan to throw out the conviction after officials discovered prosecutors' notes of an April 2008 interview that contradicted testimony of a key witness. It was the latest of several revelations of potential misconduct by prosecutors with the Justice Department's Public Integrity Unit in connection with this trial. Sullivan chastised them several times during the trial for how they handled witnesses and evidence.
At least twice, the judge instructed the jury to ignore evidence introduced by the prosecution. After the trial, the problems didn't end. A witness complained about being lied to by federal authorities about an immunity deal. And an FBI agent filed a report that accused prosecutors and fellow agents of misconduct.
In February, Sullivan held three prosecutors -- William Welch II, Brenda Morris and Patricia Stemler -- in contempt for failing to comply with a court order. Welch is the head of the public corruption unit, and Morris was the lead prosecutor. Six members of the prosecution team eventually withdrew from the case.
Much of the hearing today focused on what transpired during an April 15, 2008, interview with the key witness, Bill Allen. During that interview, according to notes taken by two of the prosecutors, Allen said he did not recall talking to a friend of Stevens's about sending the senator a bill for work on his home, according to Sullivan.
Under oath at trial, however, Allen testified that he was told by the friend to ignore a note Stevens sent seeking a bill for the remodeling work.
"Bill, don't worry about getting a bill" for Stevens, Allen said the friend told him. "Ted is just covering his [expletive]."
It was an explosive moment at the trial and buttressed prosecutors' arguments that Stevens knew he was receiving gifts and was trying to create a paper trial as a cover story if anyone ever asked about them. But defense attorneys have argued that Allen lied on the stand. They have noted in court papers that Allen did not mention that conversation during at least 20 interviews with agents and prosecutors.
Prosecutors who took the notes and participated in the interview have not been identified. Stevens's attorney, Brendan Sullivan, said that Brenda Morris, the lead prosecutor on the case, did not take part in the interview, which was conducted in Alaska. Two prosecutors participated from Washington by telephone, Brendan Sullivan said.
During the two-hour hearing, the judge said he couldn't trust the Justice Department to conduct an internal probe into the actions of prosecutors. So, the judge said, he was taking the rare step of starting criminal contempt proceedings and appointed an outside attorney, Henry F. Schuelke III, to investigate the misconduct allegations. After gathering evidence, Schuelke will submit a report to the judge with a recommendation on whether to hold the prosecutors in contempt for violating court rules.
The judge can then hold a trial to examine the allegations and decide what sanctions to impose. He can fine them or send them to jail. Those being investigated are Welch, Morris, Joseph Bottini, Nicholas Marsh, Edward Sullivan and James Goeke. Morris has declined to comment in the past. Other prosecutors could not be reached or did not return phone calls seeking comment.
After a month-long trial, Stevens was convicted of not reporting on Senate disclosure forms that he accepted about $250,000 in gifts and free renovations to his home in Girdwood, Alaska. Most of the gifts and free remodeling work were supplied by Bill Allen, chief executive of Veco, a now-defunct oil services company. Stevens testified in his own defense, but jurors said he came off as evasive, arrogant and combative. His testimony also did not jibe with the evidence, they have said.
His legal team said the result would have been different if they knew about the results of prosecutors' interview with Allen. "It is clear from the evidence that the government engaged in intentional misconduct," Brendan Sullivan told the judge.
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