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Prosecutors' intent at issue in Ted Stevens case inquiry

A criminal probe will try to determine whether Justice Department lawyers intentionally withheld evidence from the former senator's defense team or simply made mistakes under pressure.

April 12, 2009|James Oliphant

WASHINGTON — A criminal inquiry into the way former Sen. Ted Stevens of Alaska was prosecuted on public corruption charges will try to determine whether a team of federal lawyers intentionally deprived Stevens of a fair trial or simply made mistakes under pressure.

The careers, and possibly the freedom, of six Justice Department prosecutors hang in the balance.

On Tuesday, U.S. District Judge Emmet G. Sullivan voided Stevens' conviction and ordered the criminal inquiry, saying, "In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct I have seen in this case."

The federal lawyers' chief hope is that their behavior can be explained by the intense pace of preparation for an extremely high-profile case.

The 85-year-old Republican senator was charged with knowingly filing false financial reports with the Senate, failing to disclose more than $250,000 in gifts and improvements made to one of his Alaska homes. He was convicted in October and defeated the following month in his reelection bid.

According to Stevens' lawyers, an FBI whistle-blower and some legal observers, the prosecutors appeared to respond to the pressure by intentionally presenting false or misleading testimony and evidence, and withholding crucial information from the defense.

"Prosecutors know that a defeat [or a victory] would bring equally high-profile results for their careers," said Jonathan Turley, a law professor at George Washington University who followed the Stevens trial. "A fair trial appeared a risk that they were simply not willing to accept."

But others say the prosecutors were simply overwhelmed and outgunned by Stevens' lawyers.

Peter Zeidenberg, a Washington lawyer and former trial attorney in the Justice Department's public integrity section, which prosecuted Stevens, said that any actions by the prosecution to conceal evidence were probably unintentional and more a product of having to sift through mountains of documents in a short time.

"Very likely, things were overlooked," Zeidenberg said. "I'd be surprised if there was a conscious decision to hold back information."

Brenda Morris, the deputy chief of the public integrity section, was named to the case just days before Stevens was indicted in late July. That meant most of the case had already been built by the other team members: Nicholas Marsh, Joseph Bottini, Edward Sullivan and James Goeke.

After Stevens' lawyers took the unusual step of pushing for an immediate trial, Morris and her team were staring down a barrel of a gun: a trial date in September.

They had less than 60 days -- and they were matched against the storied law firmWilliams & Connolly, which could rain paper down on the Justice Department lawyers.

"These guys -- they don't have a bunch of associates and paralegals working for them," said Zeidenberg of the federal prosecutors. "They don't have any secretarial support. They do all the research, they do all the memos. They have to respond to every motion. They do all the trial prep.

"It's entirely understandable how mistakes happen," he said.

Prosecutors locked in on Stevens' relationship to VECO Corp., an Alaska oil fields company founded by Bill Allen. VECO, the government said, oversaw an extensive renovation of Stevens' Alaskan home -- and the senator failed to report that benefit.

Allen was a linchpin of the government's case. In court, Allen testified that he was told by a mutual friend not to send a bill for the renovations to Stevens, and that in asking for a bill, the lawmaker was trying cover his bases. That testimony undercut Stevens' defense, which was centered on a note the senator wrote Allen in 2002 asking to be billed.

Four months after the jury rendered a verdict for the government, a new team of federal lawyers assigned to go through the trial materials discovered notes of an earlier interview with Allen in which he said he had no recollection of the conversation he later detailed in court.

The notes were never provided to the defense. Two members of the Justice Department's trial team had been present at that interview with Allen.

"This information could have been used by the defendant to cross-examine Bill Allen and in arguments to the jury," the government acknowledged in a pleading filed April 1, asking that the case against Stevens be dismissed.

Moreover, one of Stevens' trial lawyers, Brendan V. Sullivan Jr., who is not related to the trial judge, complained that the government bent Allen to its will by promising not to indict other members of his family and by allowing him to sell his interest in VECO for millions of dollars. Allen pleaded guilty to bribery charges in Alaska but remains free from custody.

"They knew it was false testimony," Sullivan said at a hearing last week. "They knew it was false."

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