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Could botched Ted Stevens prosecution prompt federal legal system reform?

Amanda Coyne
Late Alaska U.S. Sen. Ted Stevens
Clark James Mishler photo (mishlerphotos.com)

When a federal judge last week released a summary report on the botched trial of Alaska’s late Sen. Ted Stevens, he said it detailed “the systematic concealment of significant exculpatory evidence” and "widespread and at times intentional misconduct” by federal prosecutors.

Stevens could afford a high-powered lawyer to defend him. Imagine what would happen to you if prosecutors decided to cut corners.

U.S. District Court Judge Emmet Sullivan says he eventually hopes to release most of the 500-page investigative report looking at misconduct by Justice Department lawyers during the prosecution of Stevens. But already a picture is emerging of abuse within the system that is supposed to protect individual freedom.

At issue is the legal process called “discovery.” Defendants have the right to see evidence held by prosecutors that could help their defense, including deals cut with government witnesses or information that would allow their lawyers to question the credibility of such witnesses.

In Alaska’s and many other state courts, it’s a fairly straightforward process governed by fairly straightforward rules. After you’re indicted, your lawyer is supposed to get from prosecutors any evidence that’s going to be used against you. The discovery rules don’t completely protect defendants from prosecutorial misconduct in state courts. Defense lawyers will tell you they often get discovery material in the middle of a trial.

Recently, a state judge in Kenai ordered a new murder trial on a cold case because the state prosecutor -- Pat Gullufsen, who has since retired -- knowingly hid DNA evidence that would have helped the defense. He even lied to the judge about it, all of which the judge found “troubling" and "disturbing."

Still, at least in state court the discovery rules are unambiguous. In federal court, the rules are much vaguer. It’s the prosecutors who decide what constitutes exculpatory evidence and what the defense can and can’t see. Because prosecutors want to win, that’s where abuses sometimes happen.

As Judge Sullivan pushes for the 500-page report detailing federal prosecutors’ mishandling of Stevens’ case to be released, a separate internal report from the Justice Department is pending. For the past two years, well-placed leaks to the media have suggested the problems with the case were perpetrated by two Alaska-based federal prosecutors at the time of the trial, Joe Bottini and Jim Goeke, as well as FBI agent Mary Beth Kepner, who works out of Anchorage.

But this doesn’t jive with what former state lawmaker Pete Kott’s lawyer found.

Kott was charged with taking bribes from Bill Allen, the prominent oilman who also was friends with Stevens and remodeled the Republican senator’s home in Girdwood. Allen cooperated with the feds in exchange for a reduced prison sentence and perhaps other things. Later, after the prosecutorial misconduct in the Stevens’ case was brought to light, his lawyer, Seattle-based Sheryl McCloud, became privy to documents held by prosecutors that could have helped Kott question Allen’s motives and honesty as a government witness.

“The written documents I’ve seen show that it was the Department of Justice lawyers (in Washington, D.C.) who were making many of the calls on this case and were hiding exculpatory evidence,” McCloud said, adding she was “shocked” with how high up the chain the misconduct went.

U. S. Attorney for Alaska Karen Loeffler, who didn't return phone calls for this story, seems to be in defense mode. At a recent press conference, Loeffler would only go as far as to say that if mistakes were made by federal prosecutors in the Alaska corruption probe, they would learn from them.

Even among her peers, Loeffler seems unwilling to concede that sometimes prosecutors cut corners. At a recent meeting with lawyers across the state to discuss rules of evidence, she said that in her 23 years as a federal prosecutor, she was “not aware of situations where anyone thought, ‘Oh my God, we’ve got evidence they’re innocent and we wouldn’t turn it over.’”

But based on the summary report released last week, it is clear an investigator believes prosecutors in Alaska and Washington, D.C. knowingly did exactly that when it came to Ted Stevens.

What will happen to the prosecutors involved in the misconduct? And will the system ever be reformed?

No justice for Justice attorneys

USA Today recently published a series detailing examples of prosecutorial misconduct, finding 201 cases since 1997 in which federal courts determined U.S. lawyers violated laws or bent ethics rules so severely that the cases were overturned.

The newspaper tried to find how many prosecutors were punished in those cases, but the Justice Department wouldn’t release information. Doing so, Justice’s officials said, would violate the prosecutors’ rights. Researching state bar records, the newspaper found only one federal prosecutor who was barred from practicing law for misconduct during the past dozen years.

Richard Marmaro, a California-based lawyer, has plenty of experience with rogue prosecutors. Both he and Brendan Sullivan, who was Ted Stevens’ lawyer, are considered some of the best white-collar criminal lawyers in the country and they have fought high-profile cases for years. In fact, while Sullivan was defending Stevens he was also working with Marmaro on another federal case in Los Angeles.

That case involved Broadcom, a California tech company whose founders were accused of financial wrongdoing. The federal judge threw out the charges in late 2009 after ruling the prosecutors engaged in a "shameful" campaign to intimidate witnesses and obtain unjustified convictions. The misconduct involved getting one witness fired from her job, threatening another witness with unwarranted felony charges, and threatening another witness with a $12 million fine if he didn’t testify the way prosecutors wanted him to.

And yet, the attorneys who alleged committed these acts still work as federal prosecutors.

“Prosecutorial misconduct is a very pervasive problem in our criminal justice system,” Marmaro says. But even when such misconduct comes to light, the Justice Department usually doesn’t punish its own. “If it happens at all, it happens rarely,” he says.

Two Alaska-based prosecutors who helped in the Stevens’ trial and other Alaska corruption cases still work for the Justice Department. Jim Goeke was transferred to Washington state and remains a federal prosecutor, and federal attorney Joe Bottini is still working out of Anchorage.

As for the prosecutors from Justice’s Public Integrity unit, Judge Emmett Sullivan said in an order last week that although the new report advises against criminal contempt charges, it does not preclude that prosecutors could be charged with other crimes.  

Since Stevens’ trial, one of the prosecutors has committed suicide. Three others are still working for the Justice Department. Two of them, however, have since run into problems again in other high-profile cases.

William Welch, who helped supervise the prosecution of Stevens, is currently leading the case against former CIA official Jeffrey Sterling. There are accusations that Welch has failed to comply with discovery rules and not turned over certain information to Sterling’s lawyer.

Brenda Morris, who was the lead trial lawyer in the Stevens’ case, is now based in Atlanta. She supervised another botched trial in Alabama.

It takes big bucks to take on feds

Prosecutorial misconduct “has been going on for years, but it’s just now receiving the public scrutiny that it deserves,” says Marmaro, adding that Stevens’ defense team deserves “a large amount of credit for exposing it.”

Benjamin Brafman -- a well-known lawyer who has defended diplomat Dominique Strauss-Kahn, hip-hop mogul Sean "Diddy" Combs, and Mafioso clients -- tends to agree. Although he does not believe his district in New York is plagued with prosecutorial misconduct, Brafman says that might have as much to do with a bevy of smart East Coast lawyers ready to fight the government.

“One can’t help but shudder to think what might happen when nobody is paying attention, or is represented by council that doesn’t have the resources that Stevens’ lawyer did,” Brafman says.

Just ask Pete Kott. He spent a year behind bars after he was convicted for taking Bill Allen’s bribes.

There was one pivotal moment in his trial that, had his lawyer known, might have resulted in a different outcome.

As his trial was getting started in mid-September 2007, Kott’s lawyer at the time, Jim Wendt, stood among a team of federal prosecutors in U.S. District Court Judge John Sedwick’s chambers in the federal building in Anchorage. Justice’s team included attorneys from its Public Integrity division in Washington, D.C., as well as Jim Goeke, the Alaska-based federal prosecutor at the time.

Goeke asked the judge to prevent any mention in court of Allen’s relationship with a woman named Bambi Tyree. Allen was the government’s lead witness, having admitted to bribing Kott. In exchange for his testimony against Kott and others, Allen might get a reduced sentence.

But the media was already starting to dig into allegations that, years earlier, the oilman had repeatedly hired Tyree for sex when she was underage. Reporters wondered whether the feds had cut a deal with Allen to rat out Kott, Stevens and others in exchange for the government burying his alleged relationship with Tyree.

As the lawyers stood before Sedwick, Goeke said a reference to Tyree might have shown up in some recordings provided to Kott’s lawyer as part of the discovery process, according to transcripts from the Sept. 7, 2007, meeting in Sedwick’s chambers. Specifically, Goeke said, there might “be a line of inquiry concerning Mr. Allen’s relationship with Tyree, and the government would posit that it has no relevance to this case whatsoever.”

Wendt was seemingly unaware of what Goeke was talking about. Who was Bambi Tyree? Why did it matter?

Goeke knew Tyree well. He’d been a federal prosecutor in a case a couple years earlier in which Tyree was identified as one of the ringleaders in a sordid affair involving underage girls and crack cocaine. In that case, Tyree’s relationship with Allen came up, as well as the fact that he had allegedly asked her to sign a false affidavit denying that relationship.

If Kott’s lawyer was allowed to paint Allen as a sex offender who had girls sign false statements, his character could be tarnished in the eyes of the jury. There were also concerns that if the connection between Tyree and Allen came out, Allen might not testify at all or, worse, stop cooperating with the government.

Goeke and the others kept nearly all of what they knew from Kott’s lawyer. And the judge sided with the prosecutors, saying that, “The fact that (Bill Allen’s) a philanderer isn’t something that one usually gets into in a criminal felony trial unless for some reason that’s relevant.”

After he was convicted, Kott got himself a new lawyer and fought his way out of prison. And after a judge tossed the convictions against Stevens, the government released hundreds of pages of reports, interviews and other documents that clearly showed Allen was suspected of engaging in sexual relationships with underage girls.

Kott hired defense attorney Sheryl McCloud, and she successfully argued his case before a federal appeals court, landing Kott the chance for a new trial after the judges agreed the prosecutors had withheld material -- including the stuff related to Allen’s alleged sex crimes -- that could have helped his case.

“This is one of the reasons I went to law school … to be able to fight the government when they’re invading individual rights,” McCloud says.

Will Stevens case change things?

Lawyers have complained for years about prosecutorial abuses to little avail. The public -- and judges apparently -- have been hardened to the pleas of defense lawyers yelling about problems in the system.

Longtime federal public defender Rich Curtner says discovery is a big issue in Alaska’s federal courtrooms, one he suspects will now be under a spotlight.

“Is Stevens the only case where such abuses have occurred? That’s what myself and every defense attorney are asking,” he said. “This calls into question all of the cases I’ve had with the same prosecutors. Would they treat Sen. Stevens different than my client? My clients are not as popular as Sen. Stevens, the most senior senator in American history.”

Jack King, staff attorney for the National Association of Criminal Defense Lawyers, says his organization has been trying for 20 years to get federal discovery rules changed to better conform to the open discovery process many states have in place. However, every time they’ve proposed such rules, the Justice Department pushes back, claiming there is no problem to address, he says.

The mishandling of the Stevens case isn’t going to change things overnight. “He was not a celebrity,” King says. “He was not a pop star or movie star.” Still, the Stevens case is getting attention in Washington and federal jurisdictions across the country, King said. It’s even created an advocate in none other than the judge who presided over the trial. Judge Sullivan has written letters to judicial committees about his experience in the Stevens case and the need to reform the system.

Contact Amanda Coyne at amanda(at)alaskadispatch.com.