Though a judge threw out some of the prosecution's key evidence in the corruption trial of Sen. Ted Stevens, government attorneys have been allowed to question a witness about some of the records included in that evidence.
On Wednesday, U.S. District Court Judge Emmet Sullivan ruled against a mistrial in the case of Sen. Ted Stevens, but he struck key evidence the government used to make its case that Stevens lied about renovations to his home in Girdwood, Alaska and other gifts he received, primarily from the former CEO of Veco, a now-defunct oil services firm.
But in nearly two hours of testimony Thursday, Dave Anderson, a former Veco employee, testified about the project to renovate Stevens' home. Anderson helped jack up Steven's home, laid the foundation for the new floor, and did the framing. Anderson also testified that he helped build an extensive deck for the house, but that he went to Portland, Ore. while another contractor did a lot of the internal finishing work on the house.
Stevens' lawyers had asserted that the government knew Anderson was in Portland, Ore., for several months even though he had submitted time sheets for work he billed as being done in Girdwood. The government had submitted Anderson's time sheets to the jury.
Defense attorney Robert Cary, having seemed to have gained a huge seed of reasonable doubt with the judge's ruling to expunge Anderson's billing records from evidence, sat looking concerned most of the morning. The defense did not cross-examine Anderson, and the prosecution has now rested its case.
Later Thurday, Judge Emmet Sullivan will tell the jury why the evidence was struck and that the prosecutors knew the information was inaccurate. The defense is up next, and is slated to call Sen. Daniel Inouye, D-Hawaii, and former Bush administration Secretary of State Colin Powell as character witnesses.
The mistrial request by Stevens' defense recapped the government's failure to provide them information they should have had to prepare for the trial and included allegations that the prosecutors submitted evidence they knew to be false.
Sullivan's order focused on grand jury information that contradicted documents prosecutors entered into evidence and on records that were not submitted by the government about a car trade between Stevens and key government witness Bill Allen, the former VECO CEO who paid for renovations to Stevens' home.
"In opening arguments they said VECO kept track of their payments right down to the penny," defense attorney Robert Cary said in his request for a mistrial.
The invoices are for thousands of dollars that were billed by Anderson for work on Stevens' home, including one for $20,150, and one for $21,885.28.
The documents that will be struck from the record will also affect the testimony of a key prosecution witness, VECO accountant Cheryl Boomershine, who testified in detail about invoices and records that VECO employees submitted for work done at Stevens' home.
"[The prosecution] knew two of the VECO employees were not working on the project and that one of them, Dave Anderson, was not even in the state," Cary said. "Two hundred eighty hours on Girdwood. They circled his time for the jury."
"The grand jury testimony in their files showed they knew this. This was false evidence," Cary told Sullivan.
"The government knew those records were lies," said Sullivan, who, at times, has seemed exasperated with the prosecution team.
Prosecutor Nicholas Marsh stammered out his response before Sullivan interrupted.
"Why is it so hard to admit the government knew those records were not truthful?" he said. "All along, the government knew that was a lie. ... The United States knew this was a lie."
When Marsh tried to explain that "this is the way VECO kept records," Sullivan again responded harshly.
"Someone should have said something stinks here," the judge said.
In rebuttal to the prosecutors' claims, Cary said, "The impression [prosecutors] made before the jury and in openings was that these [documents and records] were accurate."
Cary pleaded with the judge about previous requests for a mistrial.
"Earlier, I made reference to a playing field. ... This is not a game. This is a criminal case," he said. "There is much more on the line."
Sullivan, who has blasted prosecutors for not sharing portions of FBI interview reports earlier in the trial, again expressed his frustration with how they have handled the case.
"I'm concerned about the government's [legal] obligation," he said. "The government has exclusive control over this information. ... I've been telling the government what to do since day one."
Before Sullivan ruled on the issue, Marsh told the judge that striking the records was too severe a sanction against the government, but the judge disagreed.
"You knew the records you circled ... were not true, that it was a lie," he said.
Other information being struck from the evidence concerns Stevens' trade of his 1964 Mustang for Allen's 1999 Land Rover. The defense said the government did not share any of Allen's records for the car, including a check he used to buy the car for $44,000, but then prosecutors used the information in Allen's testimony.
"The government is supposed to provide material to the defense and material that is part of the case in chief," Cary said.
"The government intentionally did not give this check because you intend to use it." Sullivan said to the defense attorney.
Prosecutors never intended to introduce Allen's check for the Land Rover because they "didn't see it as material to the case," assistant U.S. Attorney Joseph Bottini said.
But Sullivan said prosecutors "made a conscious effort" to keep the check from the defense.
"You have an obligation to bring that forward," Sullivan said. "I think the government knew it had an obligation to turn it over, but didn't want to turn it over. ... You chose not to disclose it."
After the prosecution rests, the defense is expected to begin to present its case, and has listed former Secretary of State Colin Powell and Sen. Daniel Inouye as possible witnesses for Thursday's testimony.
Late tonight, Stevens' defense team filed for an acquittal. In their motion, the defense claimed that the evidence submitted by the government has not proved any of the charges in the indictment.
"That evidence is insufficient to prove any of the seven counts in the indictment beyond a reasonable doubt, and judgment of acquittal, therefore, should be entered," the defense motion said.
"The government has not proved that Sen. Stevens made false statements or concealed information required to be disclosed regarding the home renovations," the motion said. "That is because the government has offered absolutely no evidence of the fair market value of the home renovations."
The request for acquittal is largely a procedural move by the defense.