Prosecutors Gone Bad: Misconduct in the Ted Stevens Corruption Trial

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Jose Luis Magana / AP

Sen. Ted Stevens, R-Alaska, and his daughters Beth Stevens, left, and Susan Covich, arrive at federal court in Washington, Oct. 15, 2008.

When you think about innocent people suffering at the hands of power-abusing authorities, usually it’s foreign thugs jailing dissidents, or maybe cops gone bad in urban America. On Thursday, a special counsel appointed four years ago by a federal judge released a 514-page report on the abuse of power by prosecutors in the case against the late Republican Senator Ted Stevens. It is a reminder of just how much power prosecutors hold, and just how important it is to maintain and strengthen the judicial system’s checks against abuse.

You probably remember that Stevens was found guilty on seven felony counts of corruption in the fall of 2008, days before the election in which he was running for a 7th term. He ended up losing that election to Democrat Mark Begich by around 3,000 votes, thanks largely to the public fallout from the trial, which appeared to prove that Stevens had received tens of thousands of dollars of free work modernizing his mountain cabin from a hunting buddy, Bill Allen, who headed an oil services company.

Four years later we learn that prosecutors hid from the judge, the defense lawyers and the public several crucial facts. First, though the prosecutors told the jury that Stevens’ renovation was worth $250,000 and he paid $160,000, Allen told the FBI and prosecutors that the total work was worth $80,000. So, rather than receiving free work, Stevens had actually paid too much, but prosecutors failed to give that information to the defense as required by a Supreme Court ruling.

Second, Stevens’ key defense was that ten days after his friend Democratic Senator Bob Torricelli had dropped out of his 2002 re-election race in part because of revelations of questionable gifts Torricelli had received, Stevens had sent a note to Allen demanding he be billed for the work. Stevens later sent a second note reiterating his demand. In a bit of stunning courtroom drama, Allen surprised Stevens’ lawyer, Brendan Sullivan, by testifying that an Alaska neighbor of Stevens had told Allen that Stevens didn’t really want a bill but was just “covering his **s.” It turns out Allen had specifically denied any such conversation with the neighbor in front of prosecutors and the FBI the previous spring, but the notes with that information had not been handed over to the defense. Further, Allen had “remembered” the conversation with the neighbor just days before the trial after being pushed by the prosecutor to explain why he hadn’t billed Stevens.

That prosecutorial decision not to hand over the notes looks even worse in light of the final revelation in the report released on Thursday: that Allen, who had sex with a child prostitute named Bambi Tyree in the 1990s, had subsequently suborned perjury by asking her to sign an affidavit falsely stating that she and Allen had never had sex.

On April 7, 2009, responding to a request by Attorney General Eric Holder and the Justice department, the judge in the case dismissed Stevens’ indictment with prejudice and declared “the jury’s verdict is being set aside and has no legal effect.” But Stevens’ reputation was completely trashed. “The prosecutors lied to the judge [and] they made a bargain with the devil,” says Stevens’ attorney, Brendan Sullivan, and while “some people will think [Stevens] somehow did wrong or somehow caused this problem to occur… under our system he is completely innocent.”

Lawyers for the prosecutors responded to the report Thursday. Per Bloomberg:

Kenneth Wainstein, a lawyer for [one prosecutor], said in an e- mailed statement that his client’s “human errors have been miscast as intentional criminal misconduct.”

Matthew Menchel of Kobre & Kim LLP, said his client “repeatedly and persistently” pushed to disclose information and was told by superiors that “no such disclosure” would be made…

In a March 8 letter to Schuelke, [the lead prosecutor] said she relied on information from the prosecution team.

[Another prosecutor]’s lawyer, Michael A. Schwartz of Pepper Hamilton LLP in Philadelphia, didn’t respond to a phone message and e-mail seeking comment on the report.

The special counsel, Henry Schuelke III, could not recommend criminal prosecution of the prosecutors in the case because the judge had not explicitly ordered them to comply with the judicial precedents requiring them to hand over their evidence to the defense. However, says Schuelke, “the evidence establishes that this misconduct was intentional.” The Justice Department’s internal investigation is ongoing, and could result in discipline or firing of the prosecutors. They could also face disbarment.

Said a Justice Department spokesperson:

The Department has cooperated fully with Mr. Schuelke’s inquiry into the prosecution of former Senator Ted Stevens and provided information throughout the process.  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.