Judge: Ted Stevens Investigation Reveals Prosecutorial Misconduct

Updated 11:57 a.m.

The lawyer investigating allegations of misconduct in the investigation and prosecution of the late Alaska Senator Ted Stevens is not recommending that any of the government's lawyers face criminal charges, a Washington federal district judge said today.

Still, the special prosecutor's report, filed in the chambers of U.S. District Judge Emmet Sullivan, revealed "systemic concealment" of favorable information that would have corroborated the former Republicans senator’s defense that he did not knowingly file false Senate financial disclosure forms.

Sullivan said in an order today (PDF) that the 500-page report will remain confidential at least until January.

The judge is giving Justice Department lawyers a chance to object to public disclosure. The judge earlier expressed his desire to make the results of the report public to the greatest extent possible.

Sullivan appointed Henry Schuelke III in April 2009 to determine whether any of the government's trial team intentionally shirked obligations to provide exculpatory information to Stevens' defense attorneys. Schuelke is a partner in the Washington firm Janis, Schuelke & Wechsler.

Schuelke and a colleague, William Shields, determined the investigation and prosecution of Stevens on corruption charges was “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

Some of the concealment, Sullivan said, citing the report, was willful and intentional. Sullivan's order, however, is general and did not name specific prosecutors as having done anything wrong.

“Further, Mr. Schuelke and Mr. Shields found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed—at least to the Court and to the public—but for their exhaustive investigation,” Sullivan said.

Schuelke and Shields conducted 12 depositions and reviewed more than 150,000 pages of documents. Schuelke said U.S. Justice Department officials cooperate with his investigation.

Proving a criminal contempt case against any of the trial lawyers who prosecuted Stevens would have been a challenge. Schuelke said any prosecution would have required evidence that a government lawyer disobeyed an order that was "clear and unequivocal at the time it is issued." Schuelke, according to Sullivan, determined that there was no such order in the Stevens case.

Sullivan time and again accepted the trial attorneys' statements that they knew their obligations to turn over favorable information to Stevens' lawyers and that they were proceeding in good faith.

In his order today, Sullivan said the he did not issue a "clear and unequivocal" order directing the Stevens prosecutors to follow the law.

Hogan Lovells partner Charles Rosenberg, who represents Brenda Morris, a former top attorney in the DOJ Public Integrity Section, said he will review Schuelke's report and then determine the next steps. Rosenberg said the Justice Department's Office of Professional Responsibility cleared Morris of any wrongdoing.

A lawyer for Public Integrity Section trial attorney Edward Sullivan, Brian Heberlig, a partner at Steptoe & Johnson, said he has not yet read the investigative report. Judge Sullivan said in his order that attorneys for the Stevens trial team will receive copies of the report.

Heberlig said in a statement "there is no basis to conclude that Mr. Sullivan concealed exculpatory information from the defense in the Stevens case."

"Mr. Sullivan should not have been part of the Special Prosecutor’s investigation in the first place because was not on the trial team, did not have decision-making authority, and acted honorably in his limited, supporting role," Heberlig said. "Indeed, the Department of Justice’s Office of Professional Responsibility fully exonerated Mr. Sullivan in its own investigation of this matter and the Department has brought Mr. Sullivan back to the Public Integrity Section to resume his career as a prosecutor.”

Comments

[Rick]

What about obstruction of justice charges? If anyone other than a federal prosecutor had systematically or intentionally concealed highly relevant information, wouldn't the DOJ be the first to bring up an obstruction charge?

[Kimberly A. Campbell]

Brady v Maryland 373 U.S. 83 (1963)

[Avon]

I suppose all lawyers are going to have to be spoken to as if they were criminal arrestees being read their rights, from now on. At least in Federal cases, every judge will have to admonish the lawyers at the first pre-trial conference in any case, "You are hereby ordered unequivocally to make all due discovery pursuant to law, on pain of criminal prosecution. Is that clear? Do you understand your responsibilities? Sign here."
Federal judges as baby-sitters. Nobody at all is going to like that one bit.

[Marcus]

There is a distinct difference between violations of the rules of ethics and particular USDC rules in that jurisdiction and committing criminal contempt of a court order. All lawyers owe a duty of candor to the trial judge, as well as certain duties to criminal defendants. While the prosecutors may not have committed criminal contempt, they no doubt will face serious repercussions if the court finds they have breached other duties while in his courtroom, including sanctions and being precluded from appearing in Federal Court in the future..

[Eric Rasmusen]

I'm not a lawyer, but doesn't it strike anyone as odd that a lawyer is exonerated for breaking the law in a particularly heinous way and for lying to the judge if the judge didn't tell him to act legally and to tell the truth?

This seems like a literal case of "contempt of court".

Have the offending prosecutors been disbarred, at least?

[the kat]

No criminal charges? How about State Bar charges? lol