WASHINGTON -- Prosecutors seriously bungled their obligations on evidence and witnesses but Sen. Ted Stevens' corruption trial will proceed as planned, a federal judge ruled Thursday.
The case against the Alaska Republican had threatened to collapse earlier in the day when his attorney demanded a mistrial or dismissal of charges over the government's failure to turn over evidence favorable to the senator.
U.S. District Judge Emmet Sullivan, who Thursday morning was furious with prosecutors, said later in the day at a hearing that he was still angry but "not persuaded" that the violations were serious enough to declare a mistrial.
The trial, which paused Thursday while the dispute over evidence was resolved, will resume Monday.
Judge Sullivan asked whether the defense wanted a few extra days before continuing with the case, and he suggested that Stevens' lawyers could make a new opening statement to jurors. He even offered to tell the jury that the new opening was made necessarily by a government error.
But those ideas were rejected by Stevens' chief lawyer, Brendan Sullivan, who argued that "the integrity of the proceeding has been breached."
"Thank you for asking, but we believe there should be a dismissal," Brendan Sullivan said. "If not a dismissal, then a mistrial."
The chief prosecutor in the case apologized and called her team's oversight a mistake, though she asserted that Stevens' rights weren't violated. What was really happening, she said, was that the defense team was looking for a weakness in the government's position and found one, said Brenda Morris, who heads the Justice Department trying the case.
"They're just trying to make a hole and seep into a crack," she said.
"Don't you think they have good reason to do that?" asked the judge.
FBI FORM 302
It was the second time in a week that Judge Sullivan has reprimanded the prosecution team. He earlier became upset when the government sent a key witness home to Alaska without testifying and without informing the court or defense until the man left town. Prosecutors said the man, Rocky Williams, a foreman on the project to expand Stevens' home in Girdwood, was seriously ill.
The new dispute began Wednesday night when prosecutors handed over notes an FBI agent took of an interview with the main prosecution witness, Bill Allen, the former chief executive officer of Veco Corp. Stevens is accused of not reporting more than $250,000 in free labor, materials and gifts he received, most of it from Veco, from 1999 to 2006.
The agent's notes, on a document known as a Form 302, quoted Allen as saying he thought that Stevens would have paid a bill had he sent him one.
Allen is in the middle of his testimony, and he said Wednesday that he didn't send Stevens a bill for tens of thousands of dollars in repairs and remodeling even though the senator had asked for one at least twice in 2002. Allen testified that one of his good friends told him that Stevens was just "covering his ass" in asking for the bills.
"I can't do my duty to defend my client if the government does not abide by the instructions," Brendan Sullivan said Thursday. He said he would have delivered a different opening statement last week had he known what Allen had told the FBI agent.
"This can't be undone!" he thundered, speaking directly up to the judge from a podium less than 10 feet away. Clutching his chest, he said, "My heart's beating twice as fast as it should be for a 66-year-old man. This can't happen in court."
As he accused the prosecution of misconduct, Morris leapt to her feet and got within inches of him, her voiced raised as well.
"He called me out," she told the judge as he tried to calm the situation.
Walking back to the defense table, Brendan Sullivan said, "I called her up, not out."
Morris admitted that she violated the judge's orders in not turning over the document, but not Stevens' rights. She said the defense was told that Allen had said that very thing in a letter on Sept. 9.
A copy of that letter, filed by the defense Thursday afternoon, said:
"Allen stated that he believed that defendant (Stevens) would not have paid the actual costs incurred by VECO, even if Allen had sent the defendant an invoice, because defendant would not have wanted to pay that high of a bill. Allen stated that defendant probably would have paid a reduced invoice if he had received one from Allen or VECO. Allen did not want to give defendant a bill partly because he felt that VECO's costs were higher than they needed to be, and partly because he simply did not want defendant to have to pay."
Morris said the letter was adequate information to the defense.
"He's getting a fair trial, believe me. You're getting a great fair trial," Morris said.
On Thursday morning, Judge Sullivan said he found the government's claims "unbelievable."
"It strikes me this is probably intentional," he said. "This is the government's chief witness!"
Before the trial, he'd ordered prosecutors to turn over redacted versions of 302 forms. Morris said the prosecution found that particular 302 as it was preparing for the next round of witnesses. The agent who wrote it is scheduled to testify after Allen, and the prosecution would be required to make the report available to the defense at that time.
'A GROSS ERROR'
In its requirements to present material to the defense, the government operates under several kinds of rules. In one, known as a "Brady" after the Supreme Court decision that created it, the government is required to turn over evidence before the trial that would be favorable to the defendant. A different rule, known as "Jencks" from the statute that created it, requires the prosecution to provide more detailed notes from agents at the time they testify.
In addition, Judge Sullivan issued an order early in the case requiring the government to provide more material to the defense than Brady usually requires.
Morris said late Thursday that prosecutors had reported their own Brady violation to the Justice Department's Office of Professional Responsibility, which investigates allegations of misconduct by its attorneys.
She said that when members of the prosecution team were preparing Jencks material for the FBI agent, Michelle Pluta, they realized that they should have given the document to the defense sooner under the judge's order.
"We do realize this is a gross error," Morris said. "It wasn't done intentionally by any stretch of the imagination. It was a human error."
The defense team on Thursday afternoon received all 100 of the 302 Forms connected to the Stevens portion of the sweeping Alaska corruption investigation. Most are just one page, Morris said, but some are as long as 10 pages. It also received transcripts of all relevant grand jury testimony.