Federal Judge Orders Probe of Prosecutorial Misconduct

Judge Orders Probe of Attorneys in Stevens Case
Prosecutor Misconduct Alleged In Former Senator's Trial
The Washington Post by Del Quentin Wilber - April 8, 2009

A federal judge focused scrutiny yesterday on a small Justice Department unit assigned to root out corruption when he dismissed the conviction of former senator Ted Stevens and appointed an outside lawyer to investigate allegations of misconduct by prosecutors. The rare move to turn the investigation on the prosecutors themselves puts six federal lawyers, accused of mishandling evidence and witnesses, in the awkward position of becoming potential defendants in a criminal trial. It also creates a challenge for the Obama administration and Attorney General Eric H. Holder Jr., who must put a tainted prosecution behind him as he tries to remake the reputation of his department, which has been troubled in recent years. The Justice Department would usually examine such accusations internally. But U.S. District Judge Emmet G. Sullivan said yesterday that he has no faith in such an investigation after seeing so much "shocking and disturbing" behavior by the government.

"In 25 years on the bench, I have never seen anything approaching the mishandling and misconduct that I have seen in this case," he said. The judge aimed his criticism at prosecutors from the Justice Department's public integrity section, which has faced a shortage of experienced prosecutors and other resources, and has drawn attention for not winning convictions in some cases. Yesterday, Sullivan said he would appoint his own "prosecutor" to determine whether the six Justice Department lawyers should face criminal contempt charges. Convictions on such charges could lead to fines or jail time for the lawyers, who range from front-line prosecutors to the head of the public integrity section.

Last week, a new team of prosecutors asked Sullivan to dismiss Stevens's conviction and indictment after uncovering notes from previous prosecutors that contradicted testimony from a key government witness. Under court rules, the notes should have been turned over to defense attorneys before the trial, but Stevens's legal team did not receive copies until last month. Stevens was convicted in October. Paul O'Brien, one of the new Justice lawyers, told Sullivan that "we deeply, deeply regret that this occurred." Laura Sweeney, a department spokeswoman, said officials will review Sullivan's order "and will continue to cooperate with the court on this matter." Yesterday's court action was the latest twist in the troubled prosecution of Stevens, 85, a Republican from Alaska who narrowly lost his reelection bid eight days after he was convicted of seven counts of lying about $250,000 in gifts he received and free renovations to his Alaska house. Stevens, who smiled before the hearing as he shook hands with the new prosecutors, told Sullivan that the Justice Department had "nearly destroyed" his faith in the legal system. "Their conduct had consequences for me that they will never realize and can never be reversed," he said. During and after the trial, the judge reprimanded prosecutors several times for how they had handled evidence and witnesses. He chastised prosecutors for allowing a witness to leave town. He grew more agitated when he learned that prosecutors had introduced evidence they knew was inaccurate, and he scolded them for not turning over exculpatory material to the defense.

After the trial, an FBI agent came forward to complain about the conduct of prosecutors and another agent. And in February, Sullivan held three prosecutors in contempt for not complying with an order to produce documents connected to an investigation of the FBI agent's allegations. The judge said the most recent allegation linked to prosecutors' notes was "the most shocking and serious" so far. Sullivan asked Holder to better train prosecutors in how to handle evidence and witness statements that may be helpful to defendants. He identified those being investigated for potential contempt violations as four lawyers with the public integrity section: William Welch II, who heads the unit; Brenda Morris, the lead prosecutor on the Stevens case; Nicholas Marsh and Edward Sullivan; and two federal prosecutors from Alaska, Joseph W. Bottini and James Goeke. To investigate the allegations, Sullivan appointed Henry F. Schuelke III, a former federal prosecutor who the judge said is known for his "fairness, integrity and sound judgment." Schuelke declined to comment. Under Sullivan's order, Schuelke will review records and e-mail and will interview prosecutors, FBI agents and key witnesses. He will then recommend whether any prosecutors should be tried on charges of intentionally violating Sullivan's orders or rules on handling evidence. The judge could hold a trial in which Schuelke acts as the prosecutor. Much of yesterday's hearing focused on what transpired during an interview on April 15, 2008, with the key witness, Bill Allen, a close friend of Stevens who is the former chief executive of Veco, a now-defunct oil services company.

During the interview, according to the notes taken by two prosecutors, Allen said he did not recall talking to a friend of Stevens about sending the senator a bill for work done on the house in Alaska, the judge and prosecutors have said. Under oath at trial, however, Allen testified that the friend told him to ignore a note Stevens sent seeking a bill for the remodeling. "Bill, don't worry about getting a bill" for Stevens, Allen said the friend told him. "Ted is just covering his [expletive]." That testimony buttressed prosecutors' arguments that Stevens knew he was receiving gifts and was trying to create a paper trail. But defense attorneys have argued that Allen lied on the stand and that prosecutors allowed it to happen. "It is clear from the evidence that the government engaged in intentional misconduct," Brendan Sullivan, Stevens's lead attorney, told the judge. Staff researcher Julie Tate contributed to this report.