WASHINGTON - Prosecutors have seriously bungled evidence and witnesses, but Sen. Ted Stevens' corruption trial will proceed as planned, a federal judge ruled this afternoon.
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 was angered at prosecutors for their handling of evidence that might help Stevens' case but was "not persuaded" the violations were serious enough to declare a mistrial. The trial will resume Monday.
Judge Sullivan asked whether the defense attorneys wanted a few extra days before continuing with the trial and suggested they could make a new opening statement to jurors.
"Thank you for asking, but we believe there should be a dismissal," said Stevens' chief lawyer, Brendan Sullivan. "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. The defense team was looking for weaknesses and found one, said Brenda Morris, the lead prosecutor on the Justice Department team.
"They're just trying to make a hole and seep into a crack," she said.
"Dont you think thay have good reason to do that?" asked the judge.
The dispute began Wednesday night when prosecutors handed over notes by an FBI agent of an interview with the main prosecution witness, Bill Allen, the former chief executive 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 today. He asserted that 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.
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.
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 "Jenks," 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 that when members of the prosecution team were preparing Jenks 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 filed a heavily redacted version of the 302 Form, dated Feb. 28, 2007, around 1:30 p.m. Thursday, with only a few sentences of Allen's interview readable in the four-page document.
"The source (Allen) did not invoice STEVENS for the work that HESS (the project architect) performed; however, the source believes that STEVENS would have paid an invoice if he had received one."
In another part of the 302, Allen reported that he'd discussed a request by Stevens that he get a bill for plumbing work that Veco did on his house in Girdwood, Alaska.
"STEVENS said 'ethics' (an apparent reference to the Senate Ethics Committee) was on his ass and the source (Allen) needed to get him an invoice. STEVENS said he didn't want the source to go through what JON RUBINI went through with their investment. The source did not provide STEVENS with the requested invoice."
The reference to Rubini concerned a real estate investment in Anchorage that Rubini and his partner in JL Properties, Leonard Hyde, invited Stevens to make. Stevens' $50,000 investment grew to about $1 million in six years and was the subject of extensive news coverage after Stevens pushed the Air Force into approving a separate housing project of Rubini and Hyde's.
By ERIKA BOLSTAD and RICHARD MAUER
Anchorage Daily News