Updated 12:14 p.m.
The Ted Stevens report is particularly critical of two assistant U.S. attorneys, Joseph Bottini and James Goeke, who are accused of intentionally concealing favorable information from the former Alaska senator's defense lawyers.
Special prosecutor Henry Schuelke III's report said Bottini and Goeke, who were the two Alaska-based prosecutors on the Stevens case, held onto significant exculpatory evidence that they learned from a government witness during pre-trial interviews in August and September 2008.
The witness, Rocky Williams, supported Stevens’ defense that he believed he paid for renovations to his home in Alaska.
The case against Stevens was built around the allegation that he filed false U.S. Senate financial disclosure reports, omitting hundreds of thousands of dollars in repairs and gifts.
The Schuelke report also said Bottini and Goeke withheld impeachment information that would have undercut the credibility of the government’s chief witness, an Alaska oil businessman and Stevens friend named Bill Allen. That information concerned a request by Allen to a juvenile prostitute to sign an affidavit denying any sexual relationship.
Finally, the report concluded that Bottini “failed to correct materially false testimony given by Mr. Allen during his cross-examination in Stevens which Mr. Bottini knew at the time was false.” The trial testimony centered on whether Stevens was trying to “cover his ass” by requesting a bill for work at his Alaska house when he had no intention to ever pay it.
In the end, Schuelke of Washington’s Janis, Schuelke & Wechsler, concluded that criminal contempt charges could not be sustained.
“Were there a clear, specific and unequivocal order of the court which commanded the disclosure of this information, we are satisfied that a criminal contempt prosecution would lie,” Schuelke said. “We conclude, however, that the record demonstrates that Judge Sullivan admonished the Government to "follow the law" and did not issue a clear, specific and unequivocal order” that would support a criminal contempt conviction.
Schuelke said in a footnote in the report that “we offer no opinion as to whether a prosecution for obstruction of justice” is viable against any of the Stevens lawyers.
The report did not offer a conclusion about the conduct of Nicholas Marsh, who committed suicide in September 2010.
Bottini's lawyer, O'Melveny & Myers partner Kenneth Wainstein, said in a statement:
"Our criminal justice system is based on principles of fairness and due process and the fundamental requirement that criminal accusations should be leveled only when a person intentionally violates the law and not when one simply makes mistakes. The process resulting in today’s Special Prosecutor’s report deviated dramatically from those principles, and the result is a good man’s human errors have been miscast as intentional criminal misconduct."
Schuelke's analysis of the Stevens case dug into the management decisions on the roles prosecutors in Washington and in Alaska would play.
Shortly before Stevens was indicted in 2008, Matthew Friedrich, then the Criminal Division’s assistant attorney general, appointed Brenda Morris to serve as lead trial counsel. At the time, Morris was a top attorney in the Justice Department’s Public Integrity Section. Morris had initially declined the post.
The move upset Bottini and Marsh. Bottini said in an e-mail in July 2008 to a colleague that everyone was unhappy about the trial team rearrangement. Marsh considered the appointment of Morris “to be a slap in the face to him.”
Morris said her assignment on the Stevens trial team was the start of a “horrible experience.” Schuelke's report said Morris, a veteran prosecutor in Washington, “abdicated any meaningful supervisory role with respect to the matters which gave rise to this investigation.”
Schuelke said Morris deferred to the judgment of Bottini, Goeke and Marsh and “accepted on faith their representations concerning matters about which she had little no personal knowledge.”
The report concluded that Morris did not knowingly and willfully withhold information from Stevens and his lawyers.
William Welch II, then the Public Integrity chief, said he felt he was eliminated from the chain of command because of the Criminal Division front office’s active management of the prosecution.
Welch, the report said, “supervised the conduct of the prosecution only when discrete matters were brought to his attention after controversies arose.”
The report credited Welch, saying that on the occasions when a discovery issue arose, “he directed that disclosure be made.”
Stevens trial attorney Edward Sullivan, who has since returned to the Public Integrity Section, was the “most junior” member on the Stevens prosecution team, the report said.
“While the record demonstrates that he was privy to relevant facts and internal discussions concerning information which should have been disclosed to the defense but was not, we think it fair to say that he deferred to the judgment of his seniors on the team and made no independent decisions,” the report said.