Prosecutorial Misconduct in Stevens Case Was Not Criminal

     (CN) - Federal prosecutors who targeted U.S. Sen. Ted Stevens committed intentional misconduct, but they did not violate the criminal contempt statute, according to a newly unsealed report that took two years and consideration of 128,000 documents to complete.
     A federal jury found the Alaska senator guilty of felony corruption in 2008 for lying about home renovations and other gifts he had received from executives with the VECO Corp., an oil field services company.
     Stevens, the longest-serving Republican senator in history, lost his 2009 re-election bid after the conviction and died in a plane crash on Aug. 9, 2010.
     Allegations of prosecutorial misconduct had dogged the proceedings from the start, and the government admitted in 2009 that it had held back exculpatory evidence about a key witness at least twice during the trial. A seemingly contrite Justice Department moved to set aside the verdict and dismiss the indictment a short time later.
     The court appointed Washington, D.C., attorney Henry F. Schuelke III to investigate further misconduct allegedly committed by six federal prosecutors. Schuelke and fellow investigator William Shields submitted the fruits of their "exhaustive" labors to U.S. District Judge Emmet Sullivan, under seal, in November.
     Last month, Sullivan ordered release of the 514-page report, rejecting claims from the government that the information "should never come to light." He followed up on that order on March 8 in 55-page opinion.
     That opinion and Schuelke's report appeared on the case docket Thursday.
     "To deny the public access to Mr. Schuelke's report under the circumstances of this case would be an affront to the First Amendment and a blow to the fair administration of justice," Sullivan wrote.
     The report opens with the fact that "prosecutors never conducted or supervised a comprehensive and effective review for exculpatory information." Stevens' lawyers with Williams & Connelly discovered that prosecutors had withheld materials in violation of Brady v. Maryland and Giglio v. United States. In Brady, the Supreme Court said it is a violation of due process for prosecutors to suppress evidence that could favor the defendant. In Giglio, it said defendants are entitled to a new trial if prosecutors failed to inform the jury that a witness had been promised not to be prosecuted in exchange for his testimony.
     Key evidence that prosecutors withheld concerned Bill Allen, a VECO executive whom the FBI tapped to testify against Stevens and other Alaskan officials. The government had known since at least 2004 that Allen had a sexual relationship with a 15-year-old prostitute, and that Allen had suborned perjury by his victim, Bambi Tyree.
     "Tyree previously signed a sworn affidavit claiming she did not have sex with Allen," according to an interview with an FBI case agent, transcribed in the report. "Tyree was given the affidavit by Allen's attorney, and she signed it at Allen's request. Tyree provided false information on the affidavit because she cared for Allen and did not want him to get into trouble with the law."
     Schuelke's report implicates several prosecutors by name, including Assistant U.S. Attorneys Joseph Bottini and James Goeke, and Justice Department attorneys Nicholas Marsh and Edward Sullivan.
     Stevens' attorney Brendan Sullivan tried to establish the senator's good intent by introducing into evidence the so-called Torricelli notes, which ask Allen to discuss a bill for the repair work with his neighbor, Bob Persons. Later, Bottini used the same notes to "turn the tables on the defense."
     "On direct examination by Mr. Bottini, Mr. Allen testified that after he received the Torricelli note he spoke to Bob Persons who told him 'don't worry about getting a statement that he did not recall speaking with Bob Persons about the Torricelli bill. He said, Ted is just covering his ass.'"
     But that testimony contradicted the fact that Allen told prosecutors in an April 2008 that "he did not remember speaking to Bob Persons about the Torricelli note."
     "But Mr. Bottini and his colleagues never disclosed that impeachment information to Williams & Connolly," the report states. "They also never disclosed other Brady information provided to them by Mr. Allen during his interviews on April 15 and April 18, 2008, that the value of VECO's work on the Girdwood residence was about $80,000, and not more than $250,000 as alleged in the indictment."
     "Although the simultaneous failure by Mr. Bottini, Mr. Marsh, Mr. Goeke and Mr. E. Sullivan to recall their interview of Mr. Allen on April 15, 2008, and his statement that he did not recall speaking with Mr. Persons about the Torricelli notes, is difficult to believe, there is no evidence that would establish beyond a reasonable doubt that any one or more of them did in fact recall that information and concealed it from Williams & Connolly and the court," Schuelke wrote.
     "However, our investigation found evidence which compels the conclusion, and would prove beyond a reasonable doubt, that other Brady information was intentionally withheld from the attorneys for Senator Stevens."
     Schuelke said the misconduct was certainly intentional, but does not meet the threshold for criminal contempt.
     Judge Sullivan said it is important that Americans get the full story.
     "It is not an overstatement to say that the dramatic events during and after the Stevens trial, and particularly the government's decision to reverse course and move to vacate the verdict, led to a continuing national public discourse on prosecutorial misconduct and whether and what steps should be taken to prevent it," he wrote. "Withholding the Report from the public and leaving the public with only the information from the trial and immediate post-trial proceedings would be the equivalent of giving a reader only every other chapter of a complicated book, distorting the story and making it impossible for the reader to put in context the information provided. The First Amendment, the public, and our system of justice demand more."