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Ted Stevens case: Probe of prosecutor misconduct will go public

February 8, 2012 |  1:00 pm

A judge has rejected efforts by federal prosecutors in the botched prosecution of former Alaska Sen. Ted Stevens to keep secret a 500-page investigation into allegations of prosecutorial misconduct in the case.

Instead, U.S. District Judge Emmet G. Sullivan ordered that the entire special prosecutor's report be made public March 15, promising to shed new light on a case that toppled the longest-serving Republican in the U.S. Senate and affected the way in which federal prosecutions are conducted across the U.S.

"To deny the public access to [the] report ... would be an affront to the 1st Amendment and a blow to the fair administration of justice," Sullivan said in his ruling.

"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," the judge said.

"Withholding the report from the public ... would be the equivalent of giving a reader only every other chapter of a complicated book," he added.

The report was filed under seal by prominent Washington attorney Henry F. Schuelke III. It found that the corruption prosecution of Stevens in 2008 was "permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens'] defense, and seriously damaged the testimony and credibility of the government's key witness," according to an excerpt quoted by Judge Sullivan.

Schuelke did not recommend criminal contempt charges against the errant prosecutors, however, because he said there had been no specific court order during the trial directing them to comply with their discovery obligations. Sullivan has said it never occurred to him that he would have to specifically order the prosecution team to follow the law.

Stevens, who has since died in a plane crash, lost his bid for reelection just after a jury in 2008 found him guilty of failing to report gifts from a well-connected oil industry executive.

But after revelations that prosecutors had failed to tell the defense about less-incriminating statements made by key witnesses and other important evidence, the Justice Department on its own motion dismissed the case against Stevens. That came too late, however, to keep Democrat Mark Begich from defeating Stevens.

Details of who was responsible for the prosecutorial omissions and the degree to which they were deliberate have never been made public, though Sullivan said the independent examination found "at least some of this concealment was willful and intentional."

The Justice Department is conducting an investigation of its own through its Office of Professional Responsibility and has not opposed making Schuelke's report public.

But two of the six prosecutors targeted under the probe argued in sealed motions against the document's release, and two others also raised some concerns, arguing that Schuelke's investigation should be subject to the same confidentiality protections as a grand jury probe.

Sullivan rejected their arguments.

"After a highly publicized trial and months of post-trial proceedings during which the prosecution team repeatedly denied any wrongdoing and zealously defended the guilty verdict it had obtained, the opposing attorneys cannot now circumvent the 1st Amendment and any public accountability," the judge wrote.

Especially, he noted, since taxpayers are picking up the tab for defending federal prosecutors. The bill so far, USA Today recently reported, is $1.8 million.

When asked about this amount, a Justice Department spokeswoman said that the federal government has long provided representation, or made representation available, to federal employees for legal proceedings arising out of the performance of their official duties.  


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Photo: Prosecutors Joseph Bottini and Brenda Morris, shown during the trial of then-U.S. Sen. Ted Stevens in 2008, are among the targets of a misconduct probe stemming from the case. Credit: Gerald Herbert / Associated Press