Anchorage Daily News

Editor's note: Cliff Groh is an Anchorage lawyer, former state prosecutor, and lifelong Alaskan who covered Ted Stevens' trial last fall and is writing a book about it. This analysis is excerpted with permission from his blog on Alaska's political corruption scandal at www.alaskacorruption.blogspot.com.

Q. What misconduct does it appear that the prosecutors committed? The law requires the prosecution to turn over -- or "discover" -- evidence to the defense in criminal cases. The defense had complained repeatedly about violations of discovery rules during the trial, and Judge Emmet Sullivan had excoriated the prosecutors again and again for not following his orders regarding discovery. This process kept going in post-trial litigation.

Q. Why are these apparent instances of misconduct so important? Prosecutors are supposed to turn square corners. The traditional statement is that prosecutors are expected to strike blows that are hard but fair.

Anchorage attorney Wev Shea, who served as Acting U.S. Attorney for the District of Alaska, has been writing articles for weeks calling the prosecution of Ted Stevens "corrupt" and "unethical." While Attorney General Eric Holder's statement was careful not to accuse any particular government lawyer of misconduct, his complete disposal of this case shows an acceptance of a dark view of what the trial prosecutors did in this case.

Those sympathetic to Ted Stevens ask what would happen to a criminal defendant who didn't get to put on a $2 million defense to help him -- in the words of Stevens' lawyers, "Any citizen can be convicted if prosecutors are hell-bent on ignoring the Constitution and willing to present false evidence." Others wonder why some of those asking that question only seem to worry about government abuse of power when it is applied against someone like them. Both questions are worth pondering.

Q. Why did the trial prosecutors commit this apparent misconduct? These problems seemed to flow from three causes: the incredible speed with which this trial occurred following the indictment, the discretionary system for discovery in the federal system and an apparently untempered zeal among some prosecutors to stamp out public corruption.

It was apparently Ted Stevens' personal decision to plead for a quick trial so that the verdict could come before the election. Ted Stevens was indicted in late July, and the trial started less than two months later.

In Alaska state courts, there's essentially an "open file" policy in which basically all the evidence the prosecution possesses is turned over to the defense. In the federal system, by contrast, somebody goes over every page of every document and makes discretionary decisions about whether to give it up. Making discretionary decisions in a fevered atmosphere is a recipe for trouble.

If there was some form of malice -- as opposed to carelessness -- in these discovery problems, it may have come from prosecutors who wanted to win too much.

All good trial lawyers have a keen competitive spirit, but the attorneys in the Department of Justice's Public Integrity Section sometimes also appear to have a deep desire to smash public corruption by any means necessary. A missionary-like zeal mixed in with the normal fighting blood can make for a dangerous combination, and that combination may have produced some distorted judgments.

Q. What would have happened in the trial if this apparent misconduct had not occurred? Ted Stevens' lawyers confidently suggested that the jury would have acquitted the defendant if the prosecutors had not cheated: "In essence, the government tricked the jury into returning a tainted verdict against the Senator based on false evidence."

The answer to the hypothetical question of "What if?" is not so clear in this case, however.

The prosecution had a strong case and a relatively low bar to clear under the statute. The government presented numerous e-mail messages and other evidence showing that Ted Stevens knew that Bill Allen and people who regularly worked for VECO were arranging for -- and performing -- a lot of the work at his home in Girdwood. While Ted Stevens and his wife paid well over $100,000 for the renovations at his chalet, it's undisputed that the Stevenses never paid Allen or VECO anything. Similarly, the prosecution showed that Bob Persons and Bob Penney also provided valuable things to Stevens that the Senator did not disclose.

All the government had to show to get a conviction on one count in this case was that Sen. Stevens had received more than about $300 a year in undisclosed gifts or liabilities and had "knowingly and willfully" not reported them.

Q. What effect will this announcement have on the federal investigation? Former State Senate President Ben Stevens (R-Anchorage) and U.S. Rep. Don Young (R-Alaska) are probably breathing a little easier, as they likely figure that the probe will at least slow down now. (Although numerous media reports have stated that Ben Stevens and Young are under investigation in the federal probe into public corruption in Alaska, neither has been criminally charged and both deny wrongdoing.) That speculation is sound. The Department of Justice's Public Integrity Section is running this investigation, and it only has about 25-30 lawyers. The three Public Integrity attorneys most involved in handling the probe -- as well as the two FBI agents apparently most active in it -- are ensnarled in the internal investigation into alleged misconduct.

The Department of Justice may now be more wary of longtime Veco CEO Bill Allen as a prosecution witness, which would help at least some of the potential defendants in the ongoing federal investigation into public corruption in Alaska that apparently started in 2004.

Q. What effect will yesterday's announcement have on Ted Stevens' legacy? As a legal matter, lead Stevens lawyer Brendan Sullivan was correct today when he said the upcoming voiding of the convictions means that Stevens "is innocent of the charges, as if they'd never been brought." Ted Stevens himself said in a statement that "I always knew that there would be a day when the cloud that surrounded me would be removed. That day has finally come."

As a matter of history, however, the answer may be different. Alaskans should think about what Ted Stevens' legacy should be.

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