The long-awaited report into the failed prosecution of former Alaska Sen. Ted Stevens emerged Thursday from the federal courthouse in Washington, D.C., packed with details about what went wrong and charging that prosecutors deliberately withheld evidence from the defense.
Special prosecutor Henry Schuelke, hired by the Stevens trial judge to determine whether any of the prosecutors should face criminal contempt, concluded that charges were not in order.
But Schuelke’s 514-page report was scathing in its description of a rudderless prosecution team that bent the rules as it careened toward the speedy trial demanded by Stevens, juggling complex evidence and less-than-stellar witnesses whose stories changed over time.
The Stevens investigation and prosecution “were permeated by the systematic concealment” of key evidence that would have been beneficial to his defense, the report said. Other withheld evidence “seriously damaged the testimony and credibility” of the chief prosecution witness, Bill Allen, owner of the oil field contractor Veco Corp.
Schuelke singled out two prosecutors — Anchorage-based assistant U.S. attorneys Joe Bottini and James Goeke — for “willful nondisclosure.” Schuelke wrote that he couldn’t draw conclusions about a third prosecutor, Nicholas Marsh, because Marsh was dead. He killed himself on Sept. 26, 2010, months into the investigation and after he had been interviewed.
Bottini and Goeke said that Schuelke unfairly targeted them — they tried to bring evidence forward, they said. They accused Schuelke of doing to them what they were accused of doing to Stevens — ignoring material that contradicted the case he was making.
Schuelke’s report landed like a bomb, provoking long responses from the attorneys in question and providing an opportunity for Stevens’ defenders to revisit his legacy. Even as it condemns the misconduct, the report doesn’t speculate whether the outcome of Stevens’ trial would have been different if the undisclosed material had been turned over to the defense lawyers.
In 2008, just before Alaska voters were to decide whether to send Stevens back to Washington for his seventh full term, a Washington, D.C., jury found him guilty of accepting excessive gifts, which he failed to report. Most were from Allen, his one-time pal turned witness for the prosecution. Allen and Stevens fished together, went to health camps together where they foreswore beer and liquor, and Stevens gave Allen the run of his Girdwood home when he wasn’t using it himself.
Stevens lost that election to Democrat Mark Begich. The Obama administration took over in the same election, and a few months later, the new attorney general, Eric Holder, said important evidence had been withheld from Stevens. In the interest of justice, he said, the charges should be dismissed.
So ordered, said U.S. District Judge Emmet Sullivan.
But Sullivan, who occasionally erupted in anger at the prosecutors during the trial over disclosure issues, took the unusual step of appointing Schuelke.
In his final report, finished in November but kept under wraps to allow lawyers for the prosecutors, Allen and Stevens the chance to comment, Schuelke said the problems he found did not rise to the legal level of criminal contempt because the judge never issued any direct order the attorneys disobeyed.
“Were there a clear, specific and unequivocal order of the Court which commanded the disclosure of this information, we are satisfied that a criminal contempt prosecution would lie,” he wrote.
But, he added, such an order shouldn’t have been necessary “to order the Government to comply with its constitutional obligations.”
After the trial, Stevens lived on in Washington. In August 2010, at the age of 86, he died in a plane crash in Western Alaska while a guest at a GCI fishing lodge.
In a press conference in Washington after release of the report, Stevens’ chief defense attorney, Brendan Sullivan, said the trial was permeated with “the worse misconduct we’ve seen in a generation by prosecutors at the Department of Justice and the FBI.”
“If this can happen to a United States senator, a sitting senator, in the District of Columbia, than it can happen anywhere to anyone,” Sullivan said.
Schuelke’s report described a chaotic prosecution with no one in charge, a point also made by some of the attorneys for the prosecutors.
Schuelke’s report is the result of a 2½-year investigation. He and his colleague William Shields reviewed more than 128,000 pages of documents, interviewed numerous witnesses, including the prosecutors, and examined the records not only of the Stevens case but also the federal cases against former Alaska House Speaker Pete Kott and former Rep. Vic Kohring.
Most of the issues raised by the report also came up during the trial or in the months after it, though not in the level of detail.
Much of the Department of Justice misconduct revolves around the handling of former Veco chief Allen as a key government witness. He testified against Stevens and the 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 report spends 153 pages on the issue of Bambi Tyree, the one-time “juvenile prostitute” who was 15 when she began a sexual relationship with Allen about 1995. Much of the section on Tyree is taken up with her statement to federal prosecutors in a unrelated case — that Allen had asked her to swear under oath that the sexual relationship didn’t happen.
That information, which Stevens’ attorneys could have used to discredit Allen in front of the jury, was never turned over. It was also kept from the two legislators tried earlier in Anchorage, Kott and Kohring.
Instead, prosecutors wrote in their letter to Stevens’ attorneys that they had found “no evidence to support” the suggestion that Allen had asked Tyree to make a false sworn affidavit.
In a statement sent to reporters, Stevens’ defense team said the withheld evidence would have produced a damning cross-examination of Allen.
“Had the defense been permitted to demonstrate that Allen had previously suborned perjury about his own sexual misconduct, the government’s case would have been destroyed,” they asserted.
The information about Tyree would be familiar to many newspaper readers. The Daily News, among other publications, had reported about Tyree in the months after the trial.
But the Schuelke report goes further. It says that in October 2007, after Kott’s trial but before Kohring’s, one of the prosecutors, Marsh, consulted the Justice Department’s Professional Responsibility Advisory Office about whether he was required to disclose that information to attorneys for Kott and Kohring.
In seeking the advice, Marsh apparently presented a misleading set of facts, the report said, though his attorney disputes that. He said that Allen’s urging Tyree to commit perjury was based on a “mistaken recollection” by a prosecutor.
With only that limited information, the attorneys in that section advised Marsh that “disclosure of mistaken information was not required,” Schuelke wrote.
Goeke, one of the prosecutors singled out for blame in the handling of the Tyree matter, was improperly accused, said his attorney, Daniel Rashbaum of Miami.
“It is deeply troubling that the Schuelke report, out of all things, found Jim to have committed intentional misconduct with regards to the Bambi Tyree disclosure,” Rashbaum said in a telephone interview. “Jim repeatedly and persistently, over and over again, urged his supervisors and his colleagues to make disclosure on Bambi Tyree.”
The Justice Department barred the U.S. Attorney’s Office in Anchorage from participating in the Alaska corruption case sometime after the investigation began. Two attorneys from the Anchorage office, Goeke and Joe Bottini, were assigned to work with the Justice Department’s Public Integrity Section, which took over the case.
Rashbaum criticized Schuelke for singling out Goeke and Bottini for committing misconduct and not the attorneys “inside the Beltway.” Goeke and Bottini tried to do the right thing but were overruled, he said.
Bottini is still a prosecutor in the U.S. Attorney’s Office in Anchorage. Goeke is now a federal prosecutor in Yakima, Wash.
Bottini’s attorney, Ken Wainstein of Washington, D.C., said Thursday that Schuelke “mischaracterizes facts” and jumped to conclusions about what they meant without properly analyzing them.
Schuelke’s report was superficial and didn’t take into account “the chaos, the mismanagement of the trial, the time pressure, which makes it more likely that missteps were unintentional than they were intentional,” he said.
“It’s like an avalanche coming down on these guys. They’ve got a tough defense team, they’ve got reams of documents, they’ve got all these witnesses they’ve got to prepare, legal issues to get through, and they’ve got 55 days to do it all.”
Stevens’ defense team surprised the prosecution by demanding a speedy trial that would be over by the November election, hoping that the jury would acquit him. The government had been expecting the defense to seek delays.
Among the six prosecutors, no one was in charge of determining what to turn over to the defense, the report said.
Brenda Morris, the lead trial lawyer on the Stevens prosecution, told investigators she “was trying to make herself as little as possible” because she was brought into the trial team late and the other lawyers resented her top billing. She said she played no role in digging up or turning over evidence that could help the defense.
Bottini told the investigators there was nothing pulling all the efforts together.
“You’ve got wheels turning on one side, wheels turning over here on another side and there’s no gear meshing those two wheels.”
Other lawyers with the Public Integrity Section, who were not familiar with the case, were reviewing grand jury transcripts for information to flag to the defense, Marsh told the investigators.
“In hindsight, it was not a procedure calculated to be successful,” Marsh conceded.
The task of figuring out what to flag fell to the junior person on the trial team, Edward Sullivan, Bottini told investigators.
Emails in September 2008 from an IRS investigator said Sullivan was the point man for identifying potentially helpful information for the defense, at least on some topics.
Sullivan told investigators he never knew that was his role.
“I don’t think that’s a fair characterization,” he said. “In fact, what I recall is trying to tell the agents, 'Send everything to the team, because they all need, particularly the trial team, needs to be in the loop on this.’ ”
In fact, Edward Sullivan was removed from the trial team on the eve of the indictment because he was considered too inexperienced, his attorney, Brian Heberlig, said in his official response to the report. He had no decision-making authority and played only a minor role outside the courtroom, Heberlig said.
Among other issues in the trial, the Schuelke report discusses at length the “Torricelli note,” a handwritten note that was the key document associated with dismissal of the charges against Stevens. In the note, Stevens asked Allen for a bill for Veco’s services on his house and said that a mutual friend, Bob Persons, would be in touch with him about it. Stevens’ reference to “Torricelli” was to New Jersey Sen. Robert Torricelli, who had gotten into trouble that year for accepting gifts from a contributor.
Allen stunned the courtroom during Stevens’ trial when he said Persons told him, “Don’t worry about getting a bill; Ted’s just covering his ass.” But Allen had told prosecutors previously that he did not remember speaking to Persons about the Torricelli note, a fact not shared with the defense.
The matter created one of the most theatrical moments of the trial, when defense attorney Sullivan accused prosecutors of not tipping off the defense about what Allen would say. He clutched at his chest, saying the matter was too hard for a 66-year-old attorney to take, just as prosecutor Morris leaped to her feet, stood inches from Sullivan and yelled that he was calling her out.
The prosecutors also didn’t disclose that during the same April 15, 2008, interview, Allen had said the value of Veco’s work on the Girdwood residence was about $80,000 and not the $250,000 alleged in the indictment.
The Schuelke report found no proof the information about that April 2008 interview was withheld from the defense team on purpose.
The report also found the prosecution intentionally withheld and concealed information obtained during pretrial interviews with Rocky Williams, who supervised the Veco employees working on Stevens’ house. Williams also supervised Christensen Builders, a contracting company that Stevens and his wife paid for renovations on the Girdwood home.
Stevens’ defense at his trial was that he did not lie on his financial disclosure forms because he and his wife believed they’d paid the full cost of the renovation to Christensen Builders.
“The prosecutors never disclosed that Rocky Williams, the foreman of the renovation who reported directly to Mr. Allen, had the same understanding and belief as Senator Stevens and his wife, that VECO’s costs for its employees” work on the renovation were included in the Christensen Builders bills,” the Schuelke report said.
Williams was on the prosecution’s witness list but never testified and was sent home, making him unavailable for the defense. Prosecutors said he was sick, and Williams died a couple months later.
The Justice Department put out a statement Thursday saying the Stevens case has spurred changes in how federal prosecutors work.
“Since that dismissal in April 2009, the Department has instituted a sweeping training curriculum for all federal prosecutors and made annual discovery training mandatory. We have taken unprecedented steps to ensure prosecutors, agents and paralegals have the necessary training and resources to properly fulfill their discovery and ethics obligations,” said Justice Department spokeswoman Laura Sweeney.
The Schuelke report won’t be the last word on the investigation. The Justice Department’s Office of Professional Responsibility is also reviewing the conduct of the attorneys involved and could recommend disciplinary action.