Was Stevens guilty? Question likely won't be answered

Juror says verdict based on physical evidence, not on withheld information.

Anchorage Daily NewsApril 21, 2012 

WASHINGTON -- Colleen Walsh, one of the jurors who found then-Alaska Sen. Ted Stevens guilty in 2008, wonders every time she reads a story about prosecutors concealing evidence during the trial whether any of it would have resulted in a different verdict.

Walsh said she's not sure Stevens would have been acquitted even if Department of Justice prosecutors had turned over to the defense all the evidence they should have.

"Most of the information they seem to have held back was about the witnesses, which we were already told as a jury not to rate as highly as the actual evidence, the physical evidence," she said in a recent interview. "When we were discussing everything, we said, 'Let's look at the actual evidence we have.' We had boxes full of paper evidence; that's how we formed our decision."

"We were going by the physical evidence. We see this bill. Was it paid? No," Walsh said.

The botched prosecution of Stevens, a Republican, by the Bush Justice Department has led to calls for government lawyers to be fired and the justice system to be reformed. Stevens' attorney in the case described the behavior of prosecutors as "stomach-churning corruption."

But the question of whether Stevens was guilty of any of the charges that ended his 40-year Senate career will never be answered.

Some of the charges that Stevens took excessive gifts from supporters and didn't report them as required by federal law had nothing to do with the specific evidence tainted by prosecutorial misconduct.

Among the charges is the unreported gift of a $2,695 Brookstone massage chair that Stevens' friend Bob Persons had delivered to Stevens' home in Washington. Stevens said the chair, which was in his home for seven years, was a loan. Emails showed that Persons intended the chair as a gift.

There was also a blue-eyed, white husky puppy that Bob Penney, a politically connected Anchorage real estate developer and sport fishing advocate, bought at a charity auction for $1,000. After admiring the dog at the auction, Stevens ended up with it, according to testimony. On his official disclosure forms, Stevens valued the puppy at only $250.

The charges also included a $3,200 stained glass window from Penney and his wife, and a $29,000 bronze fish statue at Stevens' Girdwood home. Stevens' lawyers said the statue was a gift from the Kenai River Sport Fishing Association -- Penney is co-founder and a board member of the group -- that was meant for a library that someday would be built to honor Stevens, rather than for Stevens personally.

Last month's report by special prosecutor Henry Schuelke detailing misconduct by the Department of Justice didn't address those elements of the case. The report focused on gifts that Stevens allegedly received from Bill Allen, then-head of the oil field services company Veco and a major financial contributor to Republican politicians. The Schuelke report didn't take a position on whether Stevens was guilty of the Veco-related charges but it concluded that the prosecution, by withholding key evidence, denied him a fair trial.

"The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens' defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness," Allen, the 514-page report concluded.

Many prominent Alaskans have embraced Schuelke's scathing report on prosecutors' conduct as the exoneration of Stevens. Alaska businessman Jim Jansen called the report an "affirmation of his innocence." Jansen is a founder of Alaskans for Justice, a group calling for the firing of two of the prosecutors and an FBI agent involved in the case. The group has held rallies in Anchorage and Juneau, including speeches praising Stevens by Republicans Sen. Lisa Murkowski, Rep. Don Young and Gov. Sean Parnell.

"Our beloved senator was indicted, he was tried, convicted and removed from the Senate under conditions that no one in our country should or will accept," Parnell declared on the state Capitol steps.

Stevens was indicted at the end of July 2008, months before the November election in which he would stand for a seventh term. The defense team surprised the prosecution by demanding a speedy trial, hoping the jury would acquit him before the election. Instead, after a compressed preparation schedule for the prosecution and defense, a Washington, D.C., jury found Stevens guilty of seven counts of accepting excessive gifts and failing to report them as required on his Senate disclosure forms.

Stevens then narrowly lost the election to Democrat Mark Begich. The Democratic Obama administration took over in the same election, and a few months later, the new attorney general, Eric Holder, said that important evidence had been withheld and the charges against Stevens should be dismissed. The judge agreed and voided the guilty verdict.

Stevens died a year later in a small-plane crash near Dillingham.

Veco's renovations on Stevens' Girdwood home as well as other charges of unreported gifts from Allen, including a $6,000 generator, furniture and a Viking gas grill, formed the centerpiece of the trial. Allen, who had been Stevens' close friend, became the star witness against him. Schuelke found that the prosecution withheld information that would have hurt Allen's credibility and supported Stevens' defense that he and his wife thought they were paying for all the renovations. Schuelke told the U.S. House Judiciary Committee he believes the information would have had a "significant impact on the outcome" of the trial.

Stevens' attorney in Washington, Brendan Sullivan, was more definitive. "A miscarriage of justice would have been averted had the government complied with the law. There would have been no illegal verdict," he said in a written statement.

But Brian Kirst, who sat through the trial as a juror but didn't participate in deliberations because he was designated as an alternate, said he's seen nothing that would have changed his view that Stevens was guilty. He said the defense focused on testimony, including from former Secretary of State Colin Powell, about what an honorable man Stevens was. But the defense never gave a good explanation for why Stevens didn't pay his bills, he said. "Honestly, the prosecution had a lot of evidence," Kirst said in an interview.

Cliff Groh, an Anchorage lawyer who attended the five-week trial and wrote in detail about it on his blog, said he's looked carefully through the Schuelke report and its description of the evidence prosecutors held back.

He doubts that Stevens would have been acquitted. "It is entirely possible if that jury in Washington, D.C., in the fall of 2008 had heard all of that evidence, it would still have returned guilty verdicts on at least some counts, or maybe all the counts," he said.

Groh said the gifts of the massage chair and the dog hurt Stevens at the trial, as did the email record of how much Stevens knew about the Veco home renovations. Groh said it was clear Stevens kept up frequent and regular contact with Allen while the Veco renovations were going on, including going on vacations together.

That made it harder for the jury to accept that Stevens didn't know how much he received that he hadn't paid for, Groh said. He said Stevens was also hurt by a recording of him telling Allen during the FBI investigation that, while he didn't think he had done anything wrong, "the worst that can happen to us is we round up a bunch of legal fees and might lose and we might have to pay a fine, might have to serve a little time in jail."

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