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Judge: Shine light on Ted Stevens prosecutorial misconduct

Amanda Coyne

Ruling against federal prosecutors, U.S. District Court Judge Emmet Sullivan on Wednesday ruled that a report detailing "the systematic concealment of significant exculpatory evidence" and "widespread and at times intentional misconduct" by Justice Department lawyers during the prosecution of the late Sen. Ted Stevens, R-Alaska, must be made public by March 15.

Using language that sometimes bordered on biting, the ruling means the public for the first time will have a chance to review the findings of special investigator Henry Schuelke, whom Sullivan asked to investigate misconduct of federal prosecutors in the wake of the botched Stevens prosecution.

Just days before the November 2008 election, Stevens was found guilty by a Washington, D.C. jury for failing to disclose thousands of dollars in renovations to his home provided by former Alaska oilman Bill Allen and his company VECO.

The trial, however, was marred by prosecutors who withheld evidence from the defense, including, according to the 9th U.S. Circuit Court of Appeals, information about Allen's alleged involvement with underage girls, and his attempt to cover up such involvement by having those girls sign false affidavits, among other things. The Justice Department subsequently removed the initial legal team. It was information provided to the defense by the new team that ultimately resulted in Judge Sullivan tossing Stevens' convictions.

Four of the six involved who have filed pleadings in the case had asked that the report be kept under seal. Because their requests to keep the report sealed are also sealed, it's impossible to know who wanted what made public, or whether Bill Allen was one of those who requested that the report also be kept from public scrutiny.

What is known is that nobody -- including the Anchorage-based FBI agent accused of misconduct who was responsible for handling Allen, the government's lead witness -- has lost a job or even been publicly reprimanded. 

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. One of the prosecutors has committed suicide. His estate, however, has retained a lawyer. Three others are still working for the Justice Department, one of whom has been accused of withholding evidence in another high-profile case. 

In his ruling, Sullivan said the public deserves to know what happened.

"Withholding the Report from the public and leaving the public with only the information from the trial and immediate post-trial proceedings would be the equivalent of giving a reader only every other chapter of a complicated book, distorting the story and making it impossible for the reader to put in context the information provided," Sullivan said. Adding that "(t)he First Amendment, the public, and our system of justice demand more."

He often italicized the word "public" throughout the ruling. As in, "The attorneys then tried the defendant in the most public manner possible, and when they obtained a guilty verdict, they held a press conference to proclaim victory to the public."

The ruling was also significant in that it was the first time the judge, or anybody in such a power position outside Alaska, has said unequivocally that Stevens lost his Senate seat because of the verdict.

"The government's ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate," Sullivan wrote.

Sullivan also notes how the case has come to heighten awareness of federal prosecutorial misconduct nationwide, and that the report "sheds significant light on these important issues."

Such conduct, according to defense lawyers, has been going on for years. It's particularly endemic in the federal system lawyers say, where the rules governing the legal process called "discovery" are much more controversial than in most state courts. But the public -- and judges apparently -- have been hardened to pleas of defense lawyers yelling about problems in the system.

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, but 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 cannot see. Because prosecutors want to win, that's where abuses sometimes happen. 

Indeed, that's precisely where abuse happened in the Stevens case, and it took one of the most powerful men in the country -- who had resources for one of the best defense teams in the country -- to ferret it out.

Jack King, staff attorney for the National Association of Criminal Defense Lawyers, said that 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.

Now, however, the reformers have a formidable ally in Sen. Lisa Murkowski. In response to Sullivan's decision to ensure that the report is released to the public, she wrote in a statement: "The legacy of the Stevens trial -- not just in Alaska, but nationwide -- has become bigger than one man; it's become a national example of abuse of power and a double-standard for the Department of Justice." And she said that she would work to reform the system.

They also have another ally in Judge Sullivan, who has written letters to judicial committees about his experience in the Stevens case and the need to reform the system.

In Wednesday's ruling, he wrote that the case "has come not only to symbolize the dangers of an overzealous prosecution and the risks inherent when the government does not abide by its discovery obligations, but it has also been credited with changing the way other courts, prosecutors, and defense counsel approach discovery in criminal cases."

Contact Amanda Coyne at Amanda(at)alaskadispatch.com