Stevens report corroborates misconduct by prosecutors

Paul Jenkins

The only reason mobs are not arming themselves and swarming into government offices is that most of us are too lazy, fat and addicted to Facebook to be bothered. It just takes too much effort to round up all the necessary revolution stuff and join with guys like the militia knucklehead in Fairbanks and his loser pals. Besides, it's freezing cold.

Nonetheless, if I were a government guy, I would not take any of that for granted. Things change when officials run roughshod over constitutional rights.

Take, for example, the long, ugly string of affronts to civil liberty in the errant federal prosecution of the late Sen. Ted Stevens. He was convicted, after a five-week show trial, for paperwork violations -- seven counts of failing to properly report on his Senate financial disclosure forms gifts from Bill Allen, who headed the oil field services company, Veco Corp. Allen became the government's key witness against Stevens.

Stevens, then the most senior Republican in the Senate, a man who ably represented Alaska there for 40 years, lost his seat to Mark Begich by slightly more than 3,000 votes eight days after his conviction. It is difficult to grasp the immensity of that. Because of the wrongful conviction, Alaska's course forever changed, and not for the better. Stevens perished last year in a plane crash.

After disclosures of prosecutorial misconduct angered Attorney General Eric Holder and U.S. District Judge Emmit Sullivan, the Justice Department, with egg all over its face, tossed out Stevens' conviction in April 2009. Head-hunting government lawyers had failed to, a special prosecutor later would say, "produce exculpatory information to the defense in violation of the government's constitutional obligations. ..." That means they lied and hid evidence that would have helped Stevens. Some of that evidence cast serious doubts on Allen's testimony.

Lawyers for politicians snared in the Operation Polar Pen Alaska corruption investigation quickly found similar discovery problems.

Only now are we finding out how bad it was. Because he did not trust the Justice Department to conduct its own misconduct investigation, Sullivan appointed a special prosecutor, Henry F. Schuelke III, to determine whether trial prosecutors should be hauled into court on criminal contempt charges.

Now, more than two years later, Schuelke, aided by William B. Shields, has given Sullivan a sealed, 500-page report based on his review of a mountain of documents, interviews, depositions and other federal prosecutions of Alaska lawmakers.

Sullivan wrote in his order keeping Schuelke's full report secret for now that misconduct "permeated" the Stevens trial "to a degree and extent that this court had not seen in twenty-five years on the bench...."

What did Schuelke and Shields find? Enough to make your blood run cold. Evidence that would have helped Stevens' defense systematically was hidden. It would have independently corroborated his defense and his testimony and seriously "damaged the testimony and credibility of the government's key witness." Some of the misconduct was "willful and intentional," the judge wrote.

Worse, Sullivan wrote, there is "evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed -- at least to the Court and to the public -- but for their exhaustive investigation."

Schuelke stopped short of recommending the prosecutors be prosecuted. He said to prove criminal contempt ... the accused "must disobey an order that is sufficiently 'clear and unequivocal at the time it is issued.' " No such order existed. In short, Sullivan did not order prosecutors to obey the law.

The Justice Department investigation of six lawyers in the Stevens case remains under way, for whatever that's worth. Holder told the U.S. Senate Judiciary Committee on Nov. 8 it is about complete. One of the lawyers, Nicholas Marsh, committed suicide last year.

The Schuelke report will not be available to the public until after Justice and lawyers in the case, under strict access rules, look at redacted versions and express any objections -- all likely in secret.

All of this should make us ill. If prosecutors can lie in court, manufacture evidence, withhold crucial information that indicates innocence and walk away, what is to become of us? If the federal judiciary is corrupt, what then?

I note that Schuelke "offer(s) no opinion as to whether a prosecution for obstruction of justice ... might lie against one or more of the subject attorneys and might meet the standard enunciated in ... the Principles of Federal Prosecution."

It's not over.

Paul Jenkins is editor of the