The federal judge who presided over the Ted Stevens prosecution in Washington today ordered the public release of a lengthy investigation of the prosecutorial misconduct that doomed the high profile corruption case.
U.S. District Judge Emmet Sullivan in a ruling today rejected two requests to permanently seal the investigative report from Henry Schuelke III, the attorney the judge assigned to probe allegations that the trial prosecutors didn’t play fair in the Stevens case.
Schuelke’s 500-page report, Sullivan said in his decision, will be released to the public on March 15. Sullivan has given the Stevens prosecutors an additional opportunity to submit objections or comments to the report that will be published simultaneous with the disclosure of the investigation.
The report concluded that the investigation and prosecution of Stevens on corruption charges was marred by “systematic” concealment of favorable evidence from the former Alaska Senator’s defense team. Schuelke, however, did not recommend any prosecution for criminal contempt.
“To deny the public access to Mr. Schuelke’s Report under the circumstances of this case would be an affront to the First Amendment and a blow to the fair administration of justice,” Sullivan wrote.
The judge said the Justice Department’s missteps in the case, and the government’s decision to abandon the prosecution in April 2009 amid allegations of misconduct, led to national discourse on how to better ensure prosecutors follow ethics rules.
Withholding Schuelke’s report, Sullivan said, “would be the equivalent of giving a reader only every other chapter of a complicated book, distorting the story and making it impossible for the reader to put in context the information provided. The First Amendment, the public, and our system of justice demand more.”
Two of the prosecutors in the Stevens case told Sullivan that they either agree or do not object to the public release of Schuelke’s report. Sullivan did not reveal the identities of those two prosecutors, who filed court papers under seal about the report. One prosecutor "welcomes" the release of the report, Sullivan noted.
Sullivan said two other Stevens prosecutors asked him to permanently seal the investigative report. Two other prosecutors opposed the release of the report.
Lawyers representing the Stevens prosecutors who were opposed to the release of the report argued that Schuelke’s investigation was a grand jury style probe and therefore the rules mandating secrecy of such proceedings should apply.
Another argument pitched to Sullivan was that there is no First Amendment right of access to the report. One prosecutor said the report contains inaccurate information. But Sullivan said the lawyer failed to identify what information isn’t correct.
Sullivan rejected the arguments, saying that the public has an “overriding and compelling right to access the report.” The judge said Schuelke’s probe “differed in significant respects” from a grand jury investigation.
The judge said none of the Stevens prosecutors appeared before a grand jury as part of Schuelke’s probe of government misconduct. The Stevens attorneys, the judge noted, appeared voluntarily for depositions. Schuelke had subpoena power, but he did not have to use it.
“The Stevens case has come not only to symbolize the dangers of an overzealous prosecution and the risks inherent when the government does not abide by its discovery obligations, but it has also been credited with changing the way other courts, prosecutors, and defense counsel approach discovery in criminal cases,” Sullivan said.
Sullivan dismissed as "speculative" the argument that the Stevens attorneys will suffer professional damage from the release of the report. The judge said the Justice Department's Office of Professional Responsibility is already aware of the information in the report.
"Mr. Schuelke’s Report chronicles significant prosecutorial misconduct in a highly publicized investigation and prosecution brought by the Public Integrity Section against an incumbent United States Senator," Sullivan said. "The government’s ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate."