Monday, November 21, 2011

Stevens Prosecutors - "serious, widespread . . . intentional" illegal concealment, but no prosecution

[UPDATE:  I should have checked before I posted this.  Cliff Groh already had posted on this and appears to have had access to the report.  Cliff, an attorney, attended the Stevens trial and has a better  sense of this than I do.  You can see his post at Alaska Corruption.]

There has been a trickle of web reports that the investigation Judge Emmett Sullivan ordered on the prosecution of the Ted Stevens case is complete.  Henry F. Schuelke's 500 page report will be available to the public by January.

I haven't been able find Judge Sullivan's actual order but here's what others are reporting:

 New York Times:
 "A court-appointed investigator has found that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial, a federal judge disclosed on Monday.

But the 500-page report by the investigator, Henry F. Schuelke, recommends that none of the Justice Department officials involved in the case be prosecuted for criminal contempt of court because the judge who presided over the trial, Emmet G. Sullivan, of Federal District Court in Washington, did not issue an order specifically instructing prosecutors to obey the law by turning over any exculpatory evidence. [emphasis added]
This last part sounds a little strange - that the judge should have to tell the prosecution to obey the law.  I do know that during the Stevens trial one local attorney told me he was astounded at the withholding of the evidence and said he'd be disbarred if he'd done something like that.  But later, another attorney told me that at the Federal level, the prosecutors have discretion over what they turn over while Alaska attorneys do not.  I'm not an expert here, so I'll just report what I've heard, but take it as speculative.

The Times article says the Schuelke reviewed 150,000 pages and interviewed dozens of witnesses. 
The judge quoted Mr. Schuelke as saying that the investigation and prosecution of Mr. Stevens had been “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.”
Mr. Schuelke and Mr. Shields also “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. . .
While Mr. Schuelke did not recommend prosecuting the prosecutors for criminal contempt, the judge noted that the investigator had written that he offered “no opinion” as to whether “one or more of the subject attorneys” might instead be charged with obstruction of justice. 
The Justice Department Office of Professional Responsibility is also conducting its own investigation of the prosecution in this case. 

There have been a lot of strange and, for me, yet to be explained anomalies. 
  • Stevens, at the time the senior Republican in the US Senate, was indicted by a Republican president while his Justice Department was shown to be exceptionally political.  Someone explained that the Public Integrity Section had considerable independence, but it's hard to believe that the White House hadn't been notified before things went public and thus hadn't at least tacitly approved.
  • Ted Stevens' conviction was thrown out in one of the earliest high profile actions of Obama's Attorney General Holder
  • Yet, despite that, Schuelke's report finds serious infractions but recommends no prosecutions.  
It seems there are still a lot of things we don't know.   This is a 500  page report so by January we should have some of these questions cleared up.  Or maybe we'll have more questions. 

 NewsFeed Researcher offers these additional sources on this story :

1. 'Serious misconduct' in prosecution of Ted Stevens, report says - Crime Scene - The Washington Post
2. DOJ: No misconduct in Stevens case - John Bresnahan -
3. A court-appointed lawyer investigating prosecutors involved in the Ted Stevens case said misconduct by the department was pervasive. - Law Blog - WSJ
4. Breaking: Investigator Says Stevens Prosecutors Intentionally Hid Evidence | Main Justice

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