The Washington lawyer who led the criminal investigation of the Ted Stevens prosecution team continued today advocating for a change in how the U.S. Justice Department approaches its obligations to turn over favorable information to defense attorneys.
Henry "Hank" Schuelke III appeared for the second time on Capitol Hill to address his lengthy examination of the missteps in the Stevens case, which was dismissed in April 2009 amid allegations of government misconduct. Schuelke defended his report shortly before an attorney for a Stevens prosecutor attacked the propriety of the probe.
Schuelke, of Washington's Janis, Schuelke & Wechsler, expressed support for the elimination of the "materiality" requirement in criminal discovery--the notion that prosecutors can cling to information the government determines is not beneficial, or material, to the defense theory of a case.
"Human nature is such that good people, motivated by this adversarial desire to prevail, make those kinds of judgments," Schuelke said. "They should not."
Schuelke and a colleague, William Shields, spent more than two years investigating the Stevens case, which accused the late Alaska senator of concealing information on U.S. Senate financial disclosure forms.
Prosecutors alleged Stevens omitted hundreds of thousands of dollars in gifts and home repairs, to hide his relationship with an Alaskan businessman named Bill Allen.
Stevens' lawyers at Williams & Connolly, including Brendan Sullivan Jr. and Robert Cary, said Stevens believed he paid for the work at his house in Alaska. Stevens denied filing false financial reports. During the trial in 2008 in Washington federal district court, Stevens' attorneys attacked prosecutors for failing to turn over documents that undercut the credibility of Allen, the government¹s chief witness. The jury found Stevens guilty.
When the Justice Department asked a new team of prosecutors to look into the allegations, after the jury verdict, the government lawyers found evidence that the original Stevens trial team, lead by William Welch II and Brenda Morris, did not disclose as much favorable information as they should have.
Attorney General Eric Holder Jr. in 2009 asked U.S. District Judge Emmet Sullivan to dismiss the case. Sullivan appointed Schuelke to assess the prosecution to determine whether any of the Stevens lawyers--who also included Joseph Bottini, James Goeke, Nicholas Marsh and Edward Sullivan--should be charged with criminal contempt for failing to follow court orders.
Schuelke concluded in November 2010 that there was insufficient evidence to support a criminal contempt case against any of the Stevens prosecutors. Still, Schuelke said that systematic concealment of evidence pervaded the Stevens prosecution. Schuelke in particular blamed Bottini and Goeke, assistant U.S. attorneys in Alaska, for intentional misconduct. Both prosecutors have denied the allegations.
Judge Sullivan, Schuelke said in his report, did not formally issue an order compelling the Stevens prosecutors to turn over exculpatory information to the defense attorneys.
"One might say the prosecutors got lucky," Rep. James Sensenbrenner (R-Wis.) said in opening remarks today.
Kenneth Wainstein, who represents Bottini, today presented his criticism of the Stevens report to the committee members. Wainstein has been a leading critic of the report, which squarely accuses Bottini, a longtime federal prosecutor, of breaking the law.
"Considering the length of the report--all 500-plus pages of it--one would assume that that conclusion must be well-founded," Wainstein, a partner at Cadwalader, Wickersham & Taft, said in a prepared statement. "That assumption would be wrong."
Wainstein said "this is a case that proves up the old adage that quantity does not lead to quality." Prosecutors, Wainstein said, are human and make mistakes.
"Like every prosecutor--myself included--he has made his share of mistakes, especially in the hectic and unpredictable environment of criminal trials," Wainstein said. "He acknowledges that he made mistakes--serious mistakes--in the Senator Stevens case, and he will always regret the effect they had on the integrity of that prosecution and on the public perception of the Justice Department."
One of Wainstein's chief criticisms of the report is its lack of analysis of prosecutorial intent. He said there is a single paragraph about the alleged intent behind Bottini¹s conduct. Wainstein called reading the Schuelke report "a little disconcerting."
"It's like reading a novel that goes straight from the introduction to the happy ending or a judicial opinion that states the issue and the court's ruling but omits the analysis that leads to the ruling," he said.
Schuelke responded to questions today that he earlier addressed at a hearing in the Senate Judiciary Committee. Sensenbrenner, for instance, asked Schuelke about the prosecution¹s motivation.
"So it was win at all cost and not to have justice served?" Sensenbrenner asked.
"I think that¹s a fair characterization, yes," Schuelke responded.
Rep. Trey Gowdy (R-S.C.) questioned today why the Justice Department brought the Stevens case in the first place, saying that the prosecution didn¹t have a substantial factual basis. Prosecutors, he said, are "not known for taking really close cases that could go either way unless they have to."
The committee today got to hear from one lawyer in Washington who said he thinks Schuelke should have recommended a criminal contempt charge.
Seyfarth Shaw's Alan Baron, who served as special impeachment counsel to the House during the Judge Thomas Porteous proceedings, disagreed with Schuelke on a fundamental issue: whether there was an order from the trial judge telling the Stevens prosecutors to turn over certain information.
Baron, senior counsel at the firm, pointed to what he called a "critical" exchange at a hearing in September 2008 in which Judge Sullivan told the government to produce exculpatory information.
The judge, Baron said, didn't need to issue a written order forcing prosecutors to disclose beneficial information to Stevens¹ attorneys.
"Everyone agreed that they understood their obligation," Baron, who practices in white-collar criminal defense, said in prepared testimony. "None of the prosecutors asked for clarification of what was being ordered."
Schuelke's justification to not proceed is "unpersuasive," said Baron, who was not involved in the Stevens case.
"There may be many reasons for a prosecutor to exercise discretion and decide not to prosecute a case, but the reason stated here is not convincing," Baron said. "The judge's order was clear as was its violation."
Sensenbrenner concluded the hearing today by calling on the Office of D.C. Bar Counsel to investigate whether any of the Stevens attorneys violated local rules of professional responsibility. Sensenbrenner said he did not trust the Justice Department to conduct an impartial investigation.
DOJ has not yet released the findings of its internal probe, which could recommend sanctions against individual prosecutors.