Justice Department attorneys should not face criminal charges despite their “serious misconduct” during the corruption trial of late senator Ted Stevens, a special prosecutor has recommended.
Disclosed in a court order Monday, the recommendation came despite the prosecutor’s determination that the Justice Department attorneys had intentionally withheld helpful evidence from Stevens’s attorneys during the senator’s 2008 trial in the District’s federal court.
Stevens, an Alaska Republican who died in a small-plane crash last year, lost his reelection bid shortly after being convicted of seven counts of making false statements on financial disclosure statements to hide about $250,000 in gifts and free renovations to his Alaska house.
U.S. District Judge Emmet G. Sullivan threw out the guilty verdict in April 2009 after the Justice Department revealed that prosecutors kept key information from defense attorneys. Sullivan, who had reprimanded prosecutors several times during the trial for their handling of witnesses and evidence, also ordered his own investigation by a “special prosecutor” to investigate the extent of misconduct in the case.
The conclusions of that investigation — by D.C. defense attorney and former prosecutor Henry F. Schuelke III — were made public Monday.
In an order, Sullivan wrote that Schuelke submitted a 500-page report that found Stevens’s prosecution had been “permeated by 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.”
The judge added that Schuelke and a colleague, William B. Shields, determined that “at least some of the concealment was willful and intentional, and related to many of the issues raised by the defense” during trial.
Even so, the report recommended that the Justice Department attorneys not be prosecuted on criminal contempt charges because the judge did not issue a clear order telling them to properly handle evidence and witnesses, Sullivan wrote.
Sullivan did not indicate when he will make a final determination on how to proceed in the case. Although it appears unlikely, Sullivan could still order the prosecutors to be tried on contempt charges.
Schuelke’s report was submitted under seal and will not be made public “at least until” it is reviewed by the Justice Department, attorneys for the prosecutors and Stevens’s attorneys, Sullivan wrote.
Schuelke investigated prosecutors Brenda Morris, William Welch, Edward Sullivan, Joseph Bottini and James Goeke, as well as Nicholas Marsh, who committed suicide last year.
The prosecutors are also the focus of an investigation by the Justice Department’s Office of Professional Responsibility (OPR). That investigation is nearing a conclusion, officials have said.
Attorneys for most of the prosecutors either could not be reached or declined to comment. Edward Sullivan’s attorney, Brian Heberlig, said in a statement that the Justice Department’s OPR probe had “fully exonerated” the prosecutor.
Schuelke’s report was sparked by the circumstances surrounding a key moment in Stevens’s trial — the testimony of a star prosecution witness, Bill Allen, a close friend of Stevens’s and the former chief executive of a now-defunct oil services company. Allen testified that he gave Stevens gifts and supervised and financed much of the renovation work on Stevens’s Alaska home.
He also testified that a friend of Stevens’s told him to ignore a note the senator sent him requesting a bill for the remodeling work. “Bill, don’t worry about getting a bill. Ted is just covering” himself, Allen testified that the friend told him.”
The Justice Department later disclosed that prosecutors had taken notes of an interview with Allen before the trial. During that interview, the Veco executive told prosecutors that he did not recall talking to the friend about the bill. The fact that Allen appeared to have changed his story at trial would have buttressed defense attorneys’ attacks on the witness’s credibility.