Six years ago this month, I witnessed a miscarriage of justice in a federal courtroom in Washington, D.C. Relying upon star witness Bill Allen, who was testifying in exchange for freedom for himself and his children and for the opportunity to sell his Alaska company for hundreds of millions of dollars, federal prosecutors charged U.S. Sen. Ted Stevens with making false statements on Senate disclosure forms.
The charges were brought fewer than 100 days before the senator was to stand for re-election for an eighth term. The senator wanted to clear his name before the November election and demanded a speedy trial.
"This case is about concealment," the Department of Justice's lead lawyer stated in her opening statement, claiming that Stevens had concealed that he had not paid full value for renovations to his modest Alaska cabin. In fact, Stevens had paid more than $160,000 for renovations that independent appraisers valued at less than $125,000 at the time. But relying heavily on Allen's false testimony, government prosecutors convinced Washington, D.C. jurors to find Stevens guilty just eight days before the general election, which he lost by a thin margin.
As a result, Alaska lost a champion in Washington and the balance of power shifted in the Senate. Before an actual conviction was entered or any sentence imposed, the case was dismissed at the request of the Justice Department under then-new U.S. Attorney General Eric Holder, who was confirmed to that post the year following the senator's trial.
The case was about concealment, but it was federal prosecutors who did the concealing. An independent investigation ordered by U.S. District Court Judge Emmet Sullivan found that the prosecution was "permeated by the systemic concealment of significant exculpatory evidence, which would have independently corroborated Sen. Stevens's defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness." The investigation found that the government violated the Constitution by concealing statements of Allen that contradicted his testimony and by not correcting Allen's false testimony. The investigation found that federal prosecutors further violated the Constitution by concealing evidence that Allen suborned perjury from an underage prostitute, and concealing evidence that would have corroborated Stevens' testimony at trial.
Though the case was dismissed before any sentence was imposed (and before an actual conviction was entered), the prosecution of Stevens was a travesty. "If I had had a fair trial in Alaska, I would have been acquitted," the senator told the people of Alaska upon returning to campaign in the few days remaining before the election. I watched the senator say that on YouTube from my office back in Washington and thought to myself that if he had had a fair trial anywhere, he would have been found not guilty. He was a good man, a World War II hero who served Alaska and America in the Senate for more than four decades. He did nothing to deserve the vicious treatment he received from prosecutors sworn to uphold the law.
On the day in 2009 when the case against him was dismissed, Stevens addressed the court and expressed hope that "others may be spared similar miscarriages of justice." He thanked those who had corrected the miscarriage of justice he endured until his exoneration. Stevens died in a plane crash in 2010, before investigators found corruption of the prosecutorial function that exceeded what was known when the case was dismissed.
The Justice Department implemented new "guidelines" for federal prosecutors, but we are a nation of laws -- not guidelines. The government disclaims these guidelines in courts, asserting (correctly) that they do not have the force of law. Until we have new legislation of the type that Stevens wanted passed -- legislation that ensures that prosecutors abide by the Constitution -- what happened to the late senator can happen to any of us.
Rob Cary is a partner with Williams & Connolly LLP in Washington, D.C., one of Sen. Stevens' lead lawyers and the author of the new book "Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens."