Prosecutors acknowledged at the hearing that they made a mistake in not originally providing the information to the defense in preparation of the trial and, as a result, have self-reported their conduct to the Justice Department's Office of Professional Responsibility for an internal investigation. In court filings, prosecutors said the defense was "absolutely, unquestionably, and unequivocally disclosed to the defense prior to trial."
The judge allowed the trial to continue Monday, but demanded an explanation from the prosecution and said he would consider sanctions, if warranted. "I am very disturbed that this happened," he said.
Sullivan said it appeared that "someone made a contentious effort to redact favorable information. ... I want an answer why someone sat down with a black felt-tip pen and shadowed information."
Lead prosecutor Brenda Morris responded, saying, "It was a mistake." Sullivan asked Morris, who is the principal deputy chief of the Justice Department's Public Integrity Section, "How do I have confidence that the Public Integrity Section has integrity?"
Morris, whose voice quivered at times, said, "We are not taking this lightly." Cary told the judge during the hearing that the trial has "been played on an uneven playing field."
The judge was sympathetic. "There are ways to remedy this while the trial is going on. ... Direct examination is still going on. ... How can I level the playing field?" he said to the defense, noting that he could consider providing the jury with instructions that prosecutors withheld information, or that he could allow the defense an opportunity to remake their opening statement before the jury.
The defense attorneys stood firm and rejected those possibilities, instead asking the judge to declare a mistrial. He refused, giving the defense three days to review the documents.
"I don't know what I'm going to find. ... I could find another explosion," defense Attorney Brendan Sullivan told the judge.
The judge, visibly annoyed with prosecutors, quipped, "That's predictable." Jurors were to hear FBI tapes of phone conversations between Stevens and Allen today, but the mistrial request threw the schedule off track as the judge decided, instead, to send them home for the day.
Today's mistrial request is the second submitted by the defense this week.
Late Sunday night, the defense filed a request for a mistrial and a request to dismiss the indictment after the government sent a defense witness, who was under subpoena, back to Alaska without informing the defense or the judge.
Stevens, the longest-serving Republican senator, is up for re-election in November. After his indictment in July, defense attorneys requested an expedited trial, so the senator could attempt to clear his name before Election Day.