Stevens Report Details Botched Prosecution, 'Systematic' Concealment of Evidence

By Zoe Tillman and Mike Scarcella

In a 525-page report (PDF) released this morning, a special prosecutor detailed the mismanagement and, in some cases, misconduct that he believed characterized the Justice Department's handling of the prosecution against late Alaska Senator Ted Stevens.

Reactions were swift. Prosecutors cleared of misconduct expressed support for the report's findings, while those found responsible for wrongdoing claimed they were unfairly targeted. Stevens' defense lawyers called the report proof of "the worst misconduct we've seen in a generation by prosecutors."

On the heels of the report's release, Sen. Lisa Murkowski (R-Alaska) announced new legislation this afternoon aimed at preventing the type of prosecutorial misconduct found in the Stevens case in the future.

U.S. District Judge Emmet Sullivan tasked special prosecutor Henry “Hank” Schuelke III with examining the Justice Department’s handling of the Stevens case after it collapsed in 2009. Stevens was convicted in late 2008 of failing to report hundreds of thousands of dollars in gifts and home repairs, but the department dismissed the prosecution in April 2009 amid growing concerns of prosecutorial misconduct.

Schuelke said in the report that he found evidence that certain prosecutors willfully concealed information from Stevens’ defense lawyers. That information would have aided Stevens’ defense against public corruption charges in U.S. District Court for the District of Columbia and should have been disclosed, Schuelke wrote. He did not recommend criminal contempt charges against any of the prosecutors, however, saying the evidence did not support such a decision.

The report found that prosecutors never conducted or supervised a comprehensive review of information that the government was obligated to provide to Stevens’ attorneys. The Justice Department’s strategy in handling the information was to “play our cards close to the vest,” according to statements quoted in the report.

“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’ defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness,” Schuelke said in the report.

Schuelke said his review 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 report was completed in November but was kept under seal until today to give the prosecutors under investigation an opportunity to review and respond. Sullivan, Bottini, Goeke and Marsh unsuccessfully objected to the report’s release, albeit for different reasons.

The report lay much of the blame for the failure to disclose information to defense lawyers with Bottini and Goeke, two assistant U.S. attorneys based in the Alaska federal prosecutor’s office at the time. Schuelke found that they withheld evidence from one witness, Rocky Williams, which would have supported Stevens’ defense that he believed he paid for services at issue in his corruption trial.

In another instance, the report found that Bottini and Goeke withheld other information that could have hurt the credibility of the government’s main witness, Alaksa oil businessman and Stevens' friend Bill Allen. At issue were documents from an unrelated prostitution case that indicated Allen may have asked a 15-year-old girl to swear to a false affidavit that the two never had sex, when in fact they did.

In lengthy responses released with the report, attorneys for Bottini and Goeke wrote that while mistakes may have been made, there was no intentional misconduct.

In a phone interview today, lead counsel for Bottini, Kenneth Wainstein of Washington’s O’Melveny & Myers, said he thought the evidence showed Bottini and Goeke were the ones pushing hardest to disclose information to Stevens’ defense lawyers. Both Bottini and Goeke presented a narrative where supervising attorneys denied or ignored their recommendations to disclose the information. Bottini also submitted a letter today to Attorney General Eric Holder explaining his involvement and urging him not to take Schuelke’s report at face value.

“[Bottini’s] main concern is he loves the Justice Department, that’s his home, and it pains him to think that people in the Justice Department think that they he did something intentionally,” Wainstein said.

Goeke’s lead counsel, Matthew Menchel of Kobre & Kim in Miami, said in a phone interview today that “the idea that [Goeke] is being held intentionally responsible for discovery violations is in itself a miscarriage of justice.”

Attorneys for Morris and Welch, who were cleared of misconduct, issued brief written statements today acknowledging the release of the report. Morris’ one-page written response to the report indicated that she “disagreed with some of the recollections cited,” but was “satisfied with the overall conclusion” regarding her involvement.

“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,” her attorney, Hogan Lovells partner Charles Rosenberg, said in a statement.

Morris was brought in to lead the trial team as Principal Deputy Chief of the Public Integrity Section over her objections, a move that upset other prosecutors involved, according to the report. Schuelke said Morris, who was unfamiliar with the case history when she came in, deferred to the judgment of Bottini, Goeke and Marsh and “abdicated any meaningful supervisory role with respect to the matters which gave rise to this investigation.”

Welch, in his response, agreed with the report’s findings that the department’s front office – meaning top department officials – micro-managed the case and disrupted the normal chain of command. Welch, who led the Public Integrity Section at the time, said he was not informed in advance of some decisions made regarding the disclosure of information to the defense.

“We are pleased that Mr. Schuelke’s report makes it clear that Bill Welch acted responsibly and appropriately during all phases of the Stevens prosecution,” his attorneys, William Taylor III of Zuckerman Spaeder and Mark Lynch of Covington & Burling, said in a statement.

Steptoe & Johnson partner Brian Heberlig, who represented Edward Sullivan, said in a statement that Schuelke “rightfully exonerated” Sullivan. Still, Sullivan had opposed the release of the report and issued a written response that claimed Schuelke unfairly leveled criticism at the prosecutors as a group without separating out Sullivan. Sullivan, a junior line attorney at the time, wrote in his response to the report that the department lacked formal guidelines and training on reviewing information for possible disclosure.

Marsh also bore some of the brunt of the blame for the prosecution’s missteps in the report. In a statement, Marsh’s attorney, Robert Luskin of Patton Boggs, said that Marsh “acted at all times in complete good faith, with a keen appreciation for his ethical obligations. Under difficult circumstances, he tried to do the right thing.”

At a press conference this morning, however, Stevens’ lawyers from Williams & Connolly rejected the idea that the department’s actions were accidental.

“This is not about mistakes. This is not about negligence. This is not about incompetence. This is about intentional wrong-doing, corruption by government prosecutors to deny the constitutional right to a defendant in these courts. They abandoned all standards in order to win,” said partner Brendan Sullivan Jr.

The new legislation announced today by Murkowski would change the rules governing the disclosure of potentially exculpatory evidence to defendants. The Fairness in Disclosure Act of 2012 would require prosecutors to turn over any information that might be favorable to the defense as soon as possible, or else face sanctions.

The bill would create a national standard for the discovery obligations of Justice Department attorneys. The timing of Murkowski’s announcement was deliberate. At a press conference today, Murkowski said Schuelke’s report showed that, “Instead of justice being blind, in this case, justice was blindly ignored.”

Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, also announced today that he planned to hold a hearing before the April recess featuring Schuelke.

Schuelke’s report closed one chapter of the case, but the Justice Department is also expected to release an internal ethics investigation conducted by the Office of Professional Management. The details and conclusions of that report are unknown.

Staff writers Matthew Huisman and Todd Ruger contributed to this report.

Comments

[Jeremiah]

This sort of behavior is routine prosecutorial conduct, and as such usually escapes mainstream scrutiny, as prosecutors are normally engaged in the business of violating the rights of small people. As with the Duke case, the only reason there is an uproar about this particular example of routinized corruption is that the victim was not just white, but politically and economically powerful. (the Duke defendants weren't themselves politically and economically powerful, but their parents and lawyers certainly were, so the analogy holds).

[Henry A. Turner, Attorney at Law]

Whatever happened to the already binding U.S. Supreme Court precedent, Brady v. Maryland (1963), which mandates such disclosure from Prosecutors?

[Ratkellar]

I do not practice in criminal law, but courts should be interested in finding the truth. These DoJ attorneys obviously think other matters take precedence. The vague "sanctions" had better include disbarmetn for wilfull or intentional hiding of evidence.

[Gloria Grening Wolk]

The excuse for doing nothing more than exposing the obstruction of justice and other acts that could lead to a wrongful conviction is the judge did not make explicit orders??? Blame the judge??

Is this an example of compromise? Yes, we will investigate but no one will be punished? How do we avoid holding these DOJ lawyers responsible? Blame one of the few courageous judges in the nation. Clever. Now the worst government lawyers keep their jobs, keep their taxpayer salaries and benefits, and set an example for others.

[Kimberly A. Campbell]

It is up to attorneys that care to take a stand for justice. We're seeing too many cases like this. Too much corruption with no reprimand in the Courts. I thought I was a citizen of a nation of integrity. One that sought to adhere to the law by not only positive law, but moral law. Maybe I was wrong.

[Ron L. Scott, Attorney-at-Law]

Here we go again. But, then again, who cares - they just move on to bigger and better paychecks. What we really need are independent persons capable of reviewing and considering disbarment proceedings. Yet we will wring our hands and continue wondering why there is such a lack of confidence in Government and such a visceral dislike for lawyers.

New Legislation? "... or else face sanctions." With all due respect Senator Murkowski, such outrageous conduct by Attorneys employed at the most powerful Govenment Agency in the United States crys out for immediate and permanent disbarment!