Stevens probe: prosecutors withheld evidence, but won’t face charges

By November 22, 2011Crime & Courts

A special investigator who probed into misconduct by prosecutors in the case of the late Alaska Senator Ted Stevens says the government lawyers should not face criminal charges. Despite that, the investigator found widespread concealment of evidence that could have helped Stevens mount his defense.

Ted Stevens was the longest serving Republican in the Senate when he was convicted 3 years ago of failing to list on his Financial Disclosure Forms gifts he’d received. Prosecutors said they amounted to $250,000 and included items like house renovations and a massage chair. But accusations of misconduct by FBI agents and withholding of evidence by prosecutors soon surfaced, and when the Obama Administration came into power, Attorney General Eric Holder asked that the verdict be vacated.

The judge who oversaw the case, U.S. District Court Judge Emmet Sullivan, threw it out and ordered an independent investigator, D.C. attorney Henry Schuelke to look into what happened. After two and a half years of silence on the case, Judge Sullivan filed an order Monday saying that the investigation had results. It found the Stevens prosecution was “permeated” by “systematic concealment” of significant evidence which Stevens’ lawyers could have used to corroborate the Senator’s story and testimony. It also could have seriously damaged the testimony and credibility of the government’s key witness, former Veco executive Bill Allen.

Schuelke found that at least some of the concealment by the government was “willful and intentional.” Despite that, he is not claiming that the prosecutors committed criminal violations.
Schuelke says that’s because Judge Sullivan did not issue a “clear and unequivocal” order directing the prosecutors to follow the law. When during the trial prosecutors admitted holding back evidence, Judge Sullivan admonished them and said, “we all know what the law is” and that they in good faith knew they had to provide relevant information to the defense. But Schuelke says that wasn’t a clear direction.

Judge Sullivan, for his part, says the prosecutorial misconduct was to a degree he hadn’t seen in 25 years on the bench.

The independent investigator Henry Schuelke and a colleague, William Shields, came to their conclusions after reviewing more than 150,000 pages of documents and interviewing witnesses, holding depositions, and familiarizing themselves with two Alaska cases against former state legislators Pete Kott and Vic Kohring.

The massive report by Schuelke and Shields is 500 pages, and sealed from the public eye until the Justice Department and the six attorneys under question can review it and decide if they want to challenge making it public. And DOJ and the lawyers may indeed fight that.

This isn’t the only investigation into the Stevens case. The Justice Department’s Office of Professional Responsibility is conducting its own look into what went wrong and who’s responsible. Earlier this month Attorney General Holder told a Senate panel that that multi-hundred page report will be coming out soon, but it’s unclear whether that report will see the light of day and be made public.
Ted Stevens lost his bid for reelection one week after being convicted in 2008… he died in a plane crash near Dillingham last year. Last week would have marked his 88th birthday.

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