Judge Questions Ex Parte Filing in Ted Stevens Case

The Justice Department prosecutors in the Ted Stevens public corruption case just can’t catch a break—despite winning a conviction against the longest-serving Republican senator.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia lambasted the prosecution several times during the trial for what he deemed were intentional violations of procedure. Now, Judge Sullivan is back at it—questioning prosecutors about the filing of post-conviction documents directly with the judge without notice or copies to the defense.

The public—and defense counsel—cannot see the ex parte documents and the Williams & Connolly defense lawyers are fuming that they were not notified before the prosecution submitted the records ex parte last week.

Last month, Judge Sullivan scheduled a hearing for this morning to explore allegations that prosecutors aided a government witness, David A. Anderson, to lie on the stand—claims that prosecutors say are false. After prosecutors filed confidential documents exclusively with the judge responding to Anderson’s claims, Judge Sullivan abruptly cancelled the hearing in an order filed last week.

The judge is demanding the prosecution respond to a defense motion seeking access to the ex parte documents, and the government must explain why the documents should not be stricken for failure to comply with rules of criminal procedure. Judge Sullivan noted in his order that he has “reminded” the government in the past (in the Stevens case) on proper procedure for filing sealed documents.

Government lawyers sent Williams & Connolly an e-mail defending the ex parte communication as necessary to protect the secrecy of a wiretap in an unrelated case, according to court papers the defense filed in seeking to review the documents. The government said in court papers last month that it had evidence—including video surveillance—to disprove Anderson’s claims. Details about that evidence were filed ex parte.

“The government now seeks to block any inquiry into these extraordinary allegations,” lead defense counsel Brendan Sullivan Jr. wrote in a motion filed Nov. 26. The government should have first asked permission to file documents directly with the court, Brendan Sullivan said. "Instead, the government took unilateral action, indistinguishable from marching into chambers and speaking to the judge outside the presence of the defense."

Judge Sullivan has ordered the prosecution to respond to Brendan Sullivan's motion by Dec. 15th. The judge set a hearing for Jan. 15 at 2 p.m. to address the ex parte filings.