Judge orders release of report on Stevens prosecutors

MISCONDUCT: Ruling denies attorneys' attempt to keep details of prosecution secret.

Anchorage Daily NewsFebruary 8, 2012 

In this Oct. 8, 2008, file photo, Ted Stevens prosecution attorneys Brenda Morris and Joseph Bottini arrive at U.S. District Court in Washington. The special prosecutor who investigated the botched case against late Alaska Sen. Ted Stevens is not recommending criminal charges against any of the Justice Department attorneys who tried him despite finding widespread misconduct beyond what has yet been publicly revealed.

JOSE LUIS MAGANA / ASSOCIATED PRESS

WASHINGTON -- A U.S. District court judge on Wednesday rejected an attempt by federal prosecutors to keep secret a report detailing their misconduct in the case against former Alaska Sen. Ted Stevens.

Judge Emmet Sullivan ruled the 500-page report will be made public on March 15.

He denied an attempt by some of the attorneys under investigation to keep the report on their behavior permanently under seal and barred from public release.

The judge said the case has become a national symbol of what happens when prosecutors cross the line, and the public has a right to know what happened behind the scenes.

"Mr. Schuelke's Report chronicles significant prosecutorial misconduct in a highly publicized investigation and prosecution brought by the Public Integrity Section against an incumbent United States Senator. The government's ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate," Sullivan wrote in his ruling. The report will detail what special prosecutor Harry Schuelke has described as widespread and sometimes intentional misconduct by Justice Department attorneys in the Stevens case and other Alaska corruption cases. Schuelke and a colleague reviewed more than 150,000 pages of documents, interviewed numerous witnesses, and examined the record in the Stevens' case and the federal cases against former state House Speaker Pete Kott and former Rep. Vic Kohring.

A jury in Washington, D.C., found Stevens guilty in October 2008 of lying on financial disclosure forms covering six years in office. Prosecutors contended he lied on the disclosures to conceal gifts from Bill Allen, then the head of oil field services contractor Veco Corp.

But in 2009 the Justice Department moved to dismiss the charges against Stevens, admitting it failed to turn over evidence to the defense that would have helped Stevens. The prosecution team also faced misconduct allegations from an FBI whistleblower.

Stevens lost his re-election bid just days after the jury handed down the guilty verdict. He died in a plane crash in Alaska on Aug. 9, 2010.

"It is not an overstatement to say that the dramatic events during and after the Stevens trial, and particularly the government's decision to reverse course and move to vacate the verdict, led to a continuing national public discourse on prosecutorial misconduct and whether and what steps should be taken to prevent it," Sullivan wrote in his ruling. "Withholding the Report from the public and leaving the public with only the information from the trial and immediate post- trial proceedings would be the equivalent of giving a reader only every other chapter of a complicated book, distorting the story and making it impossible for the reader to put in context the information provided."

The details of what went wrong in the Stevens case can help with reforms of the justice system, he wrote.

"The Stevens case has come not only to symbolize the dangers of an overzealous prosecution and the risks inherent when the government does not abide by its discovery obligations, but it has also been credited with changing the way other courts, prosecutors, and defense counsel approach discovery in criminal cases," he wrote.

Some of the questionable behavior by prosecutors revolves around the handling of former Veco chief Allen as the star government witness. Allen testified against Stevens and the two state legislators, but prosecutors withheld crucial information from defense lawyers about sexual abuse allegations against Allen that, if revealed to jurors, could have affected his credibility.

The judge wrote that Schuelke's report found the investigation and prosecution of Stevens were "permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated (his) defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness."

The 500-page report by special prosecutor Schuelke was the result of a two-and-a-half year investigation. Its contents have been under seal, although Schuelke's broad conclusions were made public in November. Schuelke said he found widespread and at times intentional misconduct by Justice Department attorneys in the Stevens case and other Alaska corruption cases.

But he did not recommend criminal charges for the prosecutors because Sullivan never issued a direct order in the Stevens trial that was disobeyed by the federal attorneys, the special prosecutor concluded. Sullivan wrote in today's ruling that the release would help the public understand the decision not to seek criminal charges.

Schuelke's investigation targeted prosecutors Brenda Morris, Nicholas Marsh, Joseph Bottini, James Goeke, Edward Sullivan and William Welch.

Welch supervised the Justice Department's Public Integrity section, which handles corruption cases.

Morris, Marsh and Edward Sullivan all worked for Welch, while Bottini and Goeke were on loan to the prosecution from the U.S. Attorney's office in Anchorage, which otherwise was excluded from the cases. Marsh committed suicide in 2010.

Judge Sullivan's ruling said two of the lawyers under investigation didn't object to public release of the report. Two opposed the release and the other two asked for the report to be sealed permanently. His ruling blacked out which of the attorneys asked for the report to be kept from the public.

"While objecting generally to release of the Report as unfair and prejudicial to the opposing attorneys' privacy and reputational interests, those attorneys have not specified any compelling interest that would meet their high burden to justify keeping the Report under seal," the judge wrote.

Sullivan ruled that he would allow the attorneys under investigation to add their own comments and objections to the report when it is published on March 15. But he said the prosecution of Stevens was done in the glare of the public spotlight, and what went wrong should not be kept private.

"To deny the public access to Mr. Schuelke's Report under the circumstances of this case would be an affront to the First Amendment and a blow to the fair administration of justice," Sullivan wrote.

"Attorneys in the Public Integrity Section of the Department of Justice indicted a public official for allegedly failing to report gifts on his public disclosure forms. The attorneys then tried the defendant in the most public manner possible, and when they obtained a guilty verdict, they held a press conference to proclaim victory to the public. As a result of that verdict, the public official lost his bid for reelection, which tipped the balance of power in the United States Senate," he wrote.

Sullivan wrote that, in the face of serious and mounting allegations throughout the trial and after, the attorneys kept insisting there wasn't any wrongdoing or reason to question the guilty verdict.

"Only when faced with uncontroverted evidence ... did the government come before the Court and publicly move to dismiss the indictment and vacate the verdict. And only at that point did the government seek to turn this public proceeding into a private one, assuring the Court that it would investigate the prosecutors internally through its confidential Office of Professional Responsibility process," Sullivan wrote in his ruling.

The Justice Department's Office of Professional Responsibility has been doing a separate investigation into prosecutorial misconduct in the Stevens trial. Its findings have not been made public.

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