A federal judge and attorneys in Washington, D.C., called for new court standards this week to avoid the kinds of misconduct by prosecutors that led to criminal prosecution of former U.S. Sen. Ted Stevens.
In 2008, Stevens was found guilty of making fraudulent statements for allegedly receiving gifts worth thousands of dollars from friends and business associates but failing to report them on his tax returns or on Senate financial disclosure forms. The verdict was thrown out by a federal judge in 2009 after an FBI whistleblower revealed that prosecutors hid evidence that might have helped prove Stevens was innocent.
"There's a crying need for a rule," U.S. District Judge Emmet G. Sullivan said during a seminar at the federal courthouse in Washington this week. He was referring to "exculpatory evidence," or evidence that prosecutors obtain during an investigation that might show a defendant is innocent. Federal courts require prosecutors to reveal the evidence to defense attorneys.
However, the requirement often is overlooked as prosecutors seek to convict criminal defendants.
"It's not just about the Stevens case," said Sullivan, who presided over the former senator's trial.
Stevens, whose nearly 42 years in the Senate made him the longest-serving Republican senator in American history, died in an airplane crash in August 2010. He lost the first Senate campaign of his career after being found guilty on seven counts of corruption charges, largely as a result of a remodeling to his cabin in Girdwood, site of Alaska's largest ski resort, which was overseen by an oilfield services company executive and personal friend.
An epidemic of injustice
About 95 percent of the criminal defendants in federal court plead guilty and avoid a trial, Sullivan said.
Concerns linger in many of the cases that evidence that might prove their innocence is withheld by prosecutors, he said.
"Who knows?" Sullivan asked.
Federal rules need to be changed to ensure prosecutors are more diligent in turning over exculpatory evidence, he said.
"Then people can make intelligent decisions about whether to go to trial," the judge said.
Rob Cary, one of the defense attorneys who represented Stevens at his trial, discussed how disillusioned Stevens became by the conviction.
"He just couldn't believe how far the system got off track," Cary said.
He described violations by prosecutors who fail to disclose exculpatory evidence as "an epidemic."
Instead of uncertainties and variations between prosecutors about whether they comply with the court rules on evidence, "We ought to have something that is permanent," Cary said.
A new Stevens legacy
Andrew Goldsmith, a Justice Department attorney who oversees federal prosecutors' compliance with rules of evidence, said the Stevens case has created "a lot of positive effects."
As a result of a subsequent court-ordered investigation of the prosecutors' misconduct, the Justice Department has increased its training of attorneys on exculpatory evidence.
Henry Schuelke, an attorney who conducted the investigation, said, "It's hard for me to imagine that you would have a case with so many failures to disclose."
He described Stevens as a well-meaning senator who sought to pay all his bills for the cabin remodeling but who was victimized by ambitious prosecutors.
"All he wanted to do was sit on the porch and smoke a cigar in the evening," Schuelke said.
One of the things that tipped off FBI agent Chad Joy and the court about misconduct by prosecutors was a note Stevens wrote to VECO Corp. executive Bill Allen, who oversaw the remodeling, asking that the senator be informed of the entire bill he should pay for the project.
Prosecutors withheld a statement from Allen in which he acknowledged Stevens was willing to pay for the remodeling.
Instead, they influenced Allen to testify Stevens wrote the note to create the image he would pay his bill when he really had no intention of paying, the later investigation showed.
Schuelke said the incident led him to find a more widespread pattern of misconduct by federal prosecutors, which left him disappointed by their behavior.
"This was not an easy thing for me," Schuelke said.
One proposal for reducing the misconduct by prosecutors was introduced as a Senate bill last year by Sen. Lisa Murkowski, an Alaska Republican.
Under her "Fairness in Disclosure of Evidence Act," prosecutors could be fired, new trials would be ordered or prosecution evidence could be excluded if prosecutors do not promptly turn over exculpatory evidence to defense attorneys.
"While the injustices that were done to Sen. Stevens may have provided the impetus for the focus on this important issue, this bill is not about seeking vindication for Ted," Murkowski said in a statement when she introduced the bill in March 2012. "It's about learning the vital lessons from the Justice Department's failure of his prosecution and making our criminal justice system work the way our Constitution envisioned that it would."
Congress has not yet voted on Murkowski's bill.
New Justice Department training and rules on delivering exculpatory evidence to defense attorneys might reduce mistrials in other cases, but they have done little to get rid of all the hard feelings left over in Alaska from the prosecution of Stevens.
"Ted Stevens was a popular figure in Alaska," said Cliff Groh, an Alaska lawyer and columnist for the Alaska Bar Rag, the official publication of the Alaska Bar Association. "He won elections for years overwhelmingly."
He was considered "a very smart man, a hardworking person who delivered for Alaska and brought a lot of money to Alaska at a time when people felt poor," Groh said in an interview.
When the truth came out about how federal prosecutors mishandled the Stevens case, it made many Alaskans think, "to use a crude term, 'those federal f--k-ups,'" Groh said.
It also inflamed "a belief that Alaska is unfairly treated by the federal government," he said. The belief is rooted in disagreements over use of the huge swaths of federal land in Alaska and over policies such as the Jones Act, a law that state residents say drives up their expenses with its regulations over maritime commerce between U.S. ports.
"I've known Ted Stevens all my life, since I was a little boy," Groh said. "I was very disturbed by the charges."
Tom Ramstack is a Washington, D.C., lawyer and was the Supreme Court reporter for The Washington Times. He also covered the Stevens trial.