Stevens seeks retrial in Alaska

DEFENSE: Separate motion calls for judge to overrule jury.

December 6, 2008 

Defense lawyers said that U.S. Sen. Ted Stevens' monthlong trial was unfair, flawed and prejudiced against him in dozens of ways and asked that he be tried anew, this time in Alaska.

The motion for a new trial, filed Friday in Washington, D.C., was accompanied by a separate motion asking the judge in the case to overrule the jury and direct an acquittal. That would go a step further than asking for a new trial -- it would entirely void the verdict in which Stevens was convicted Oct. 27 of seven counts of failure to disclose gifts and other benefits, and let him walk a free man.

Stevens' lawyers also renewed a pretrial motion to dismiss six of the seven counts as duplications of the first. They also asked the judge to allow them to file some exhibits in support of their motions under seal because the exhibits refer to personal information about jurors and to the ongoing investigation by the government into political corruption in Alaska.

Under an earlier schedule set by U.S. District Judge Emmet Sullivan, the government has until Jan. 9 to respond to the defense's post-trial motions. A hearing is set for Feb. 25.

In asking for a new trial, the defense lawyers said Stevens' trial was fatally flawed with false evidence presented by the government, improper hearsay evidence from a witness who was the "linchpin" of the government's case, and by jurors who lied to the court and were prejudiced from the start against politicians.

Such post-trial motions are common in criminal trials but rarely succeed before the trial judge, who has ruled upon most if not all of the arguments before. However, they set out the basis for a likely appeal, and could also be used by advocates seeking a presidential pardon for Stevens to assert he was tried unfairly.

The motion for a new trial, filed by defense attorney Craig Singer, who specialized in motions during the trial, was accompanied by a hefty, 78-page legal memorandum. Singer had to request permission to exceed the district court's 45-page limit, and had gotten an OK for 75 pages.

The only completely new arguments in the document involve jurors and suggest the defense has been investigating the panel.

As it was, the jury had more than its share of drama. There was a disruptive juror whom the others wanted to boot; a juror who disappeared during deliberations after saying her father died, only to later admit she went to a California racetrack; and a replacement juror -- for the thoroughbred fan -- who, after the verdict, started an irreverent blog with snippy comments about the trial participants.

Now the Stevens defense is weighing in with allegations that two jurors lied in their written questionnaires used by the judge and the attorneys to determine whether they'd be fair and impartial. The defense didn't provide details -- juror information is usually kept private -- but suggested the two jurors had undisclosed contacts with the criminal justice system.

If it turns out the jurors lied, Singer wrote in the memorandum, it would "raise particular concerns in this case because jurors may associate or blame their prior personal experiences on government officials, including politicians like Sen. Stevens. The false statements may suggest an attempt to serve on the jury in order to vindicate prejudice toward government, politicians, or political parties."

Singer asked for a hearing where the jurors could be questioned under oath. The "cumulative effect" of all the juror issues "is overwhelming, and a new trial should be granted," he wrote.

The defense also said a new trial was in order because the lead prosecutor, Brenda Morris, inappropriately appealed to "class prejudice" during her cross examinations of Stevens and his wife, Catherine. Morris portrayed the couple "as wealthy, privileged individuals" and equated their wealth with improper conduct, Singer said.

He cited a rapid-fire series of questions that Morris directed at Catherine Stevens concerning her use of her husband's taxpayer-paid Senate staff to walk her dogs, feed her cats, wrap her Christmas presents, pay credit card bills at expensive department stores, pay parking tickets and even write checks from Stevens' account to pay overdue Blockbuster video charges.

Those questions were irrelevant to the charges of whether Stevens failed to disclose gifts from the defunct oil-services firm Veco Corp. and its chief executive, Bill Allen, Singer said.

"The government's blatant appeals to class prejudice were improper, and indeed, intolerable," Singer wrote.

A Washington, D.C., grand jury indicted Stevens, and prosecutors argued that the capital was the proper venue for the trial because Stevens filed his disclosures with the Senate. Stevens sought to move the trial to Alaska because most witnesses were there, and he could campaign for his Senate seat in the run-up to the November election. But Sullivan kept the trial in Washington.

Singer said that was a mistake. More than half the witnesses came from Alaska, and the defense had to spend inordinate time on logistics while the trial was under way, he said.

"Had the trial been in Alaska, the Senator would have requested that the jury be permitted to visit the Girdwood residence so that it could determine whether the value of the renovations exceeded the amount Senator and Mrs. Stevens paid for them," Singer wrote. "The government sought to prove the value of the renovations by introducing the Veco accounting records and by showing the jury photographs of the renovations. The accounting records were utterly unreliable and should have been excluded in their entirety as hearsay. And the snapshots of the residence were no substitute for an actual view of the Stevenses' distinctly modest Girdwood home."

Another cause for a new trial is the most memorable line uttered in the case, Singer said. It happened early in the trial when Allen was on the witness stand and the day's testimony was drawing to a close. Allen was giving evidence about a handwritten note Stevens sent him on Oct. 5, 2002, in which Stevens said he wanted a bill for Veco's work on his home. Allen said he would send another friend to talk to Allen about that -- Bob Persons, the owner of the Double Musky restaurant in Girdwood.

Allen indeed talked to Persons, who told him, "don't worry about getting a bill," Allen testified. "He said, 'Ted is just covering his ass.' "

Singer asserted that Allen made up that quote. In about 20 interviews with the FBI and prosecutors, Singer said, Allen never mentioned such a statement before, according to agent notes the defense received.

"With this bombshell, the government sought not only to erase Senator Stevens' repeated requests for bills, but also to transform these exculpatory requests ... into further evidence of a scheme to deceive the Senate Ethics Committee," Singer wrote. "Mr. Allen's 'CYA' testimony was perhaps the single most important and explosive piece of evidence in the government's case."

Instead, Singer said, it was inadmissible hearsay -- and perhaps a lie told with government approval -- and justification for a new trial.

Find Richard Mauer online at or call 257-4345.

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