Judge Denies Mistrial Request in Stevens Case

DOJ prosecutors submit themselves for an internal investigation.

ByJason Ryan and Theresa Cook
October 02, 2008, 11:13 AM

Oct. 2, 2008 — -- A federal judge decided today to proceed with the government corruption case against U.S. Sen. Ted Stevens, R-Alaska, denying his attorney's request for a mistrial. The trial will continue Monday.

Stevens' attorneys had asked for a mistrial earlier today, claiming federal prosecutors withheld information about their star witness in the case against the lawmaker. Despite the judge's ruling at a federal courthouse in Washington, D.C., prosecutors reported themselves to the U.S. Justice Department for an internal investigation into possible misconduct for failing to turn over all their materials to the Stevens defense team.

The prosecution has now turned over about 100 FBI reports relating to the Stevens investigation to defense attorneys, who will review all of them over the weekend to determine what remedy to request from the judge.

At the close of proceedings today, Judge Emmett Sullivan said, "The court has no confidence in the government ... to discharge its ... obligations."

The defense team learned late Wednesday that Justice Department prosecutors had failed to provide them with FBI interview paperwork on Bill Allen, the government's key witness.

In July, a federal grand jury indicted Stevens, 84, for allegedly lying on financial disclosure forms required by the U.S. Senate. Prosecutors claim Stevens omitted $250,000 in gifts, including a massive renovation project carried out at his Girdwood, Alaska, home, which they say Allen and his company funded.

Allen, the former CEO of now-defunct oil services firm Veco, took the stand Tuesday and Wednesday and testified that he had never sent the senator a bill for the extensive home renovations.

Payment for the renovation project is at the heart of the case; prosecutors say that Stevens never paid a dime and that Allen and Veco footed the bill, but the defense says the lawmaker's family paid every bill it received.

Attorneys sparred in court over a portion of the FBI forms that prosecutors redacted before turning them over to the defense. The redacted portion included a line about a bill being sent to Stevens that noted if a bill had been sent, "Bill Allen believes they would have paid."

In court this morning, lead prosecutor Brenda Morris admitted to the "gross error," but claimed that Stevens' defense lawyers received the information missing on the FBI forms through other memos.

The defense disagreed. "The government claimed in court that the information provided last night was cumulative," defense attorneys claimed in documents filed this afternoon. "Nothing could be further from the truth. The information is both highly exculpatory and diametrically opposite to the information previously provided."

At a hearing to address the issue late this afternoon, defense attorney Robert Cary told the judge, "We opened this case without this information. ... This trial is broken and can't be fixed. ... We were entitled to this information."

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.

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