WASHINGTON — As the fate of Sen. Ted Stevens is placed in the hands of a jury today, the government's once-powerful corruption case against the long-serving Republican suddenly looks too close to call.
Because of a finding of prosecutorial misconduct by U.S. District Judge Emmet G. Sullivan, one of the signature allegations in the indictment -- that Stevens got a sweetheart car deal from an Alaskan oil tycoon -- will not be considered by the jury.
In addition, what at first seemed like slam-dunk charges that Stevens and his wife, Catherine, got a free makeover of their Alaskan home has been undercut by evidence that the Stevenses paid tens of thousands of dollars out of their own pocket for the upgrade, and that the finished product was not wildly out of line with its assessed value.
"Initially it looked like a win for the government, but there may be enough reasonable doubt" to swing the verdict in favor of Stevens or leave the jury deadlocked and cause a mistrial, said Henry Hockeimer, a Philadelphia lawyer and former federal prosecutor.
The nature of the indictment itself could leave jurors hung up, he said. Stevens was charged with violating Senate financial disclosure rules rather than the more serious, and difficult to prove, crime of trading his office for favors as part of a bribery scheme.
"It was an odd way to charge," Hockeimer said. "The jury may perceive this as the government intent on getting this entrenched, crusty senator."
But Stevens and his lawyers also have to contend with the fact that Stevens was the beneficiary of some extraordinary munificence, including an assortment of unreported or under-valued gifts such as a professional-grade gas grill and an Iditarod sled dog puppy. Also, neither Stevens nor his wife was able to account for whether they paid for a new wraparound deck that was installed more than a year after their home's main renovation was complete.
Legal experts said his fate was likely to be determined by what jurors make of his own high-stakes decision to take the witness stand and whether he struck them as credible and sympathetic. They said the prosecution appeared to pick up momentum as the trial proceeded.
"There is a perception that, if the government brings a case, especially against a high-profile public official, there is going to be fire to back up that smoke. In the first three quarters of the trial, we saw the government struggle," said Joshua Berman, a Washington lawyer and former federal prosecutor.
But Berman said the U.S. "scored a number of powerful points" in its cross-examination of Stevens, who was put in a position of having to acknowledge that he received many items of value from friends, but that he did not really want them or did not consider them his own.
The government showed that Stevens was given a $2,700 vibrating massage chair from a neighbor back home in Girdwood, Alaska.
Stevens said the gift was a loan, although it has remained in his Washington home for seven years.
"What were the terms of this loan?" prosecutor Joseph W. Bottini asked in closing remarks Tuesday. "Zero percent interest for 84 months?"
Stevens' position during trial that his wife was in charge of the home renovation bills, and that he was somehow less responsible, could also strike some jurors the wrong way. "That woman is still recovering from a bus he threw her under," prosecutor Brenda Morris told the jury Tuesday.
Stevens' lawyer, Brendan V. Sullivan, said his client was being victimized by an overzealous prosecution.
"We are trying to convict an innocent man in this courtroom on an interpretation of evidence that is so far from real life that it should make you sick," Sullivan said Tuesday.
He urged the jurors to accept at face value statements Stevens had made in e-mails and other correspondence in which he requested bills for the home renovations. Prosecutors say he wrote the letters to cover himself.
Sullivan derided the notion that Stevens "must stay awake all night long thinking about what to say in these letters and whether it is going to look good eight years out."
"Do you have any evidence he cares about a grill or a fish sculpture or the rest of that stuff?" Sullivan asked, alluding to some of the items in dispute.
But the government said there was evidence that Stevens knew he was up to no good.
Bottini played a secretly recorded phone conversation in which Stevens raised the possibility of having to do jail time.
"Who talks about spending a little time in jail unless they have done something wrong?" Bottini said.