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Mistakes in Stevens case were isolated, Justice tells Congress

Sean CockerhamMcClatchy-Tribune News Service

WASHINGTON -- The Justice Department said Wednesday that its misconduct in the case against then-Alaska Sen. Ted Stevens was an isolated incident and Congress should not pass a law forcing prosecutors to disclose all evidence they have to the defense.

Alaska Republican Sen. Lisa Murkowski is pushing a bill to require prosecutors to immediately turn over evidence to the defense that could be favorable to the accused. Alaska Democratic Sen. Mark Begich, who beat Stevens just days after his conviction that was later thrown out, is a co-sponsor. The American Civil Liberties Union, among others, is also supporting the bill, saying this type of problem happens too often.

But the Justice Department released a statement Wednesday as the Senate Judiciary Committee held a hearing on an investigator's report that the Stevens investigation and prosecution "were permeated by the systematic concealment" of key evidence that would have helped Stevens.

"The Stevens case was deeply flawed. But it does not represent the work of federal prosecutors around the country who work for justice every day," the Justice Department said in its statement. "And it does not suggest a systemic problem warranting a significant departure from well-established criminal justice practices that have contributed to record reductions in the rates of crime in this country while at the same time providing defendants with due process."

The Justice Department said it's already made internal reforms to see that prosecutors follow the law and this doesn't happen again.

Special prosecutor Henry Schuelke, who produced the court-ordered report on misconduct in the Stevens case, suggested to the Senate Judiciary Committee on Wednesday that the Justice Department's response has been impressive but falls short.

He said the difference between the internal reforms and Congressional action is whether the force of law would be behind the policy that prosecutors must disclose all evidence favorable to the defense. That's a higher standard than "materiality" in which prosecutors only disclose what they think could change the outcome of the case, he said.

"If the department believes there should be no pretrial materiality standard, because that is what they are telling their prosecutors, then what is the principled reason for opposing legislation that does just that," Schuelke told the judiciary committee.

The Justice Department said it was worried that disclosures could put victims and witnesses in danger, interfere with other investigations and pose national security risks.

Murkowski's bill includes an exception for when a judge could agree to stop the immediate disclosure of the information, such as when having the information get out could present a threat to the safety of anyone.

There have been other cases with Justice Department errors comparable to the Stevens prosecution. The same judge who presided over Stevens' case, for example, in 2009 found that prosecutors improperly withheld important psychiatric records of a government witness who was used in a "significant" number of the Guantanamo cases.

The Justice Department said the failures in the Stevens case "were not typical" and that over the past decade it's filed over 800,000 cases with more than a million defendants. It said less than three-hundredths of one percent led to investigations by the Justice Department's Office of Professional Responsibility over failure to disclose evidence.

MILLION-DOLLAR REPORT

Schuelke told the Senate Judiciary Committee he believes prosecutors withheld evidence in the case just because they wanted to win.

"That motive to win the case was the principal operative motive. I do not believe any of the prosecutors harbored a personal animus toward Sen. Stevens. I don't believe they sought fame and glory. They did, however, want to win the case," Schuelke said.

U.S. District Judge Emmet Sullivan appointed Schuelke to determine whether any of the prosecutors in the case should face criminal contempt charges. Schuelke found the prosecutors should not be charged with criminal contempt because they never disobeyed a specific order by the judge telling them to follow the rules. He said Wednesday that he had no position on whether they were guilty of obstruction of justice.

Figures released by the federal court system Wednesday show the government paid Schuelke's firm nearly $1 million between April 2009 and March 2012, when his report was published. That comes on top of the $1.8 million in federal money spent on private lawyers for the members of the Stevens prosecution team to defend themselves.

A Washington D.C. jury found Stevens guilty in 2008 of accepting excessive gifts and failing to report them. Stevens lost his re-election bid to Begich soon after and died in a plane crash in 2010. The prosecution of the Republican Stevens happened under the administration of George W. Bush and the Obama administration emphasizes its attorney general, Eric Holder, dismissed the charges against Stevens after misconduct came to light.

Schuelke's report takes no position on whether Stevens was guilty of the charges. Most of the gifts were from Bill Allen, a close friend and fishing pal of Stevens who turned witness for the prosecution and pleaded guilty to bribing state lawmakers. Allen was chief of Veco, an oil field services company, that helped to renovate Stevens's Girdwood home.

Schuelke told the Senate Judiciary Committee on Wednesday it was especially crucial that the prosecution withheld pretrial statements by Rocky Williams, who supervised work that Veco employees did on Stevens' house. Williams had said he understood the costs of the Veco work were being included in bills that Stevens was paying through contractor Christensen Builders.

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. Schuelke told the Senate Judiciary Committee it "may well have affected the outcome of the trial" if it had come out that Williams believed the same thing.

Schuelke's report singled out two prosecutors -- Anchorage-based U.S. attorneys Joe Bottini and James Goeke for "willful nondisclosure" in the case. Bottini's lawyer, Ken Wainstein, said Williams had only said he "assumed" Veco costs were being rolled into the Christensen Builders bills. Bottini had considered it and concluded an assumption was not exculpatory evidence for Stevens, according to Wainstain.

Bottini regardless planned to ask Williams about the matter at Stevens' trial, Wainstein wrote, and it does not make sense to say he was intentionally keeping it secret. Williams never testified because the prosecution team sent him home to Alaska, saying that he was in poor health. Williams died soon after.

Wainstein said Schuelke's report was based on "flawed reasoning, slanted factual analysis," and a process that denied Bottini and Goeke a chance to test the accusations.

Reach Sean Cockerham at scockerham@mcclatchydc.com or on twitter @seancockerham.


By SEAN COCKERHAM
Anchorage Daily News