Updated 10:33 a.m.
The special prosecutor who examined the botched prosecution of Ted Stevens said he found evidence of willful concealment of information from the late Alaska senator's defense lawyers on at least three occasions, according to a lengthy investigation published today.
That evidence, special prosecutor Henry "Hank" Schuelke III said, would have aided Stevens' defense of public corruption charges in U.S. District Court for the District of Columbia. Two assistant U.S. attorneys, the report said, concealed information that went to the credibility of the government's chief witness.
The report found that prosecutors in the Stevens case never conducted or supervised a comprehensive review of information that the government was obligated to provide to the Alaska senator’s defense attorneys.
The 525-page report digs into a host of issues, including discovery obligations and alleged mismanagement of the case. Supervisors decided the government would “have to play our cards close to the vest” in the prosecution, according to the report.
Schuelke, appointed by a Washington federal trial judge to investigate the Justice Department’s missteps, said that not only was the review for exculpatory information not supervised, “the prosecutors themselves were unsupervised.”
DOJ’s Criminal Division leadership, Schuelke said in the report, “took a keen interest” in the indictment and prosecution of Stevens.
“Paradoxically, however, the role of the 'front office' in the management of the prosecution contributed to the failures of effective supervision of the trial team by the leadership of the Public Integrity Section,” the report said.
Schuelke wrote that an FBI agent, Mary Beth Kepner, did not prepare reports based on every interview she had with the government’s lead witness, Bill Allen, a friend of Stevens. Schuelke also reported that handwritten notes taken by prosecutors and two FBI agents contained significant exculpatory information that was never disclosed to Stevens’ defense lawyers.
“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness,” Schuelke said in the report.
The collapse of the Stevens case in 2009 marked a low point for the Justice Department’s Public Integrity Section and renewed national debate over the extent to which prosecutors are not playing fair with defense attorneys. Holder soon announced a series of DOJ reforms that were designed, he said, to minimize the chance of prosecutorial error. The department stepped up training for prosecutors and created a new position to focus on discovery issues.
Schuelke said his review of the botched prosecution included the examination of more than 128,000 documents. The Stevens prosecutors—William Welch II, Brenda Morris, Edward Sullivan, Joseph Bottini and James Goeke—cooperated in the probe. A sixth lawyer, Nicholas Marsh, committed suicide in 2010.
The Justice Department hasn’t yet published its internal ethics investigation conducted by the Office of Professional Responsibility. Still, lawyers for several Stevens prosecutors addressed the Schuelke report and the OPR investigation.
“Brenda Morris did not commit prosecutorial misconduct, as the report released today affirmatively states,” her lawyer, Hogan Lovells partner Chuck Rosenberg, said in a statement this morning. “Brenda is a woman of tremendous integrity and an exceptionally talented prosecutor—she was fully honest with the investigators and always hoped that one day this report would be made public so that the facts of her individual role would be known.”
Steptoe & Johnson partner Brian Heberlig, who represented Edward Sullivan, said in a statement that Schuelke “rightfully exonerated” Sullivan.
“Mr. Sullivan is a diligent attorney, with strong character and integrity, whose conduct comports with the Department’s highest ethical standards. Mr. Sullivan was rightfully exonerated by Mr. Schuelke and the Department’s Office of Professional Responsibility, and his vindication is evidenced by the fact that he continues to prosecute cases in the Criminal Division’s Public Integrity Section,” Heberlig said.
Attorney General Eric Holder Jr. said this month in testimony on Capitol Hill that the OPR report includes recommendations for sanctions. Holder did not name any prosecutor who may be sanctioned. He said any sanctions will take into account whether the ethics violation was isolated and how serious the lapse was.
“The Department has cooperated fully with Mr. Schuelke’s inquiry into the prosecution of former Senator Ted Stevens and provided information throughout the process," a Justice Department spokeswoman, Laura Sweeney, said in a statement. "The Department is in the process of making an independent assessment of the conduct and, to the extent it is appropriate and in accordance with the privacy laws, we will endeavor to make our findings public when that review is final.”
Schuelke in November submitted the investigation to Judge Sullivan (not related to prosecutor Edward Sullivan), who then published the findings and set a schedule to allow the subject prosecutors to argue against to public disclosure.
For months, four Stevens prosecutors—Edward Sullivan, Goeke, Bottini and Marsh—waged a legal fight under seal over whether the Schuelke report should be published at all. The prosecutors compared the investigation to grand jury proceedings, arguing that Schuelke’s report should remain confidential because it did not recommend criminal charges.
Over the objection, Sullivan in February ordered the report released to the public. The U.S. Court of Appeals for the D.C. Circuit on Wednesday refused to block the publication of the report. Welch and Morris were not opposed to the release of the Schuelke report.
“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,” the judge said.
The case against Stevens drew national attention, marking the first prosecution of a sitting U.S. senator in more than 20 years.
Prosecutors charged Stevens in the summer of 2008 with failing to report hundreds of thousands of dollars in gifts and home repairs.
Stevens, according to the indictment, intentionally neglected to disclose numerous valuable items on annual U.S. Senate financial disclosure reports. DOJ lawyers said Stevens was hiding his relationship with an Alaska businessman named Bill Allen.
Stevens’ attorneys at Williams & Connolly, including Brendan Sullivan Jr. and Robert Cary, tried to convince jurors that Stevens did not intentionally omit any item of value from the forms. The defense attorneys told jurors that Stevens believed he paid for the whole cost of renovations to his home.
Schuelke’s investigative report said that Stevens’ defense lawyers “never learned during or after the trial that the prosecutors possessed evidence that directly corroborated Senator Stevens’ defense.”
Stevens, one of the longest serving Republicans in the Senate, was convicted in late 2008. The Justice Department trumpeted the victory on the steps of the E. Barrett Prettyman U.S. Courthouse in downtown Washington.
The victory didn’t last long. The allegations of prosecutorial misconduct that marred the trial flared up in post-trial litigation.
In April 2009, Holder announced the government was dismissing the prosecution on the ground government lawyers failed to provide Stevens’ counsel beneficial information to aid his defense.
Sen. Lisa Murkowski (R-Alaska) is expected later today to introduce legislation concerning the fairness of prosecutors’ obligations to disclose favorable evidence to defense attorneys.
The National Association of Criminal Defense Lawyers and the American Civil Liberties Union are supporting the effort to reform disclosure rules.
Stevens died in a plane crash in Alaska in August 2010.