- The Washington Times - Wednesday, April 8, 2009

A federal judge on Tuesday turned the tables on the prosecutors who tried to jail former Alaska Sen. Ted Stevens, commencing a criminal investigation that could put the very people charged with enforcing the law behind bars.

The stunning rebuke of the Justice Department came as Judge Emmet Sullivan threw out the case against Mr. Stevens, citing repeated revelations of prosecutorial misconduct, most involving failures to turn over evidence.

“For nearly 25 years, I've told defendants appearing before me that in my courtroom they will receive a fair trial and I will make sure of it,” Judge Sullivan said. “In nearly 25 years on the bench, I have never seen anything approaching the mishandling and the misconduct I have seen in this case.”

The case began as the first prosecution of a sitting U.S. senator in more than a generation, but has become historic for very different reasons.

The judge appointed Henry F. Schuelke III, a respected private lawyer who has worked as a prosecutor and ethics counsel, to investigate suspected charges of criminal contempt and obstruction of justice by the prosecutors. Such an appointment has been made only a few times in the past 25 years, one former prosecutor said.

Several defense lawyers interviewed by The Washington Times said the conduct by out-of-control prosecutors, exposed most dramatically in the Stevens case, has been endemic throughout the Justice Department for the past decade.

Judge Sullivan also called “shocking, but not surprising,” revelations that three letters outlining problems with the case that Mr. Stevens' defense team sent to former Attorney General Michael Mukasey went unanswered.

He said he has heard nothing about a 6-month-old internal Justice Department investigation that began at the first sign of trouble with the case, which involved two complete prosecution teams. The second team, led by Paul O'Brien, repeatedly revealed misconduct by the first team, at whom Judge Sullivan's investigation is aimed.

“The events and allegations in this case are too serious and numerous to be left to an internal investigation that has no outside accountability,” the judge said. “This court has an independent obligation to ensure that any misconduct is fully investigated and addressed in an appropriate public forum.”

He ordered Mr. Schuelke to investigate William M. Welch II, head of the Justice Department's corruption-fighting Public Integrity Section; Brenda K. Morris, the Public Integrity Section's principal deputy; and two lawyers from the section, Nicholas A. Marsh and Edward P. Sullivan. Two assistant U.S. attorneys from Alaska - Joseph W. Bottini and James A. Goeke - are also under investigation.

All six remain on the job.

“I think over time [Judge Sullivan] lost confidence in the department to police itself,” said Barry J. Pollack, a white-collar defense lawyer who is not involved in the case.

The judge wasn't the only one.

“Until recently, my faith in the criminal system, particularly the judicial system, was unwavering,” Mr. Stevens said in court. “But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed.”

Mr. Stevens, who served as a Republican in the Senate longer than anyone else in the chamber's history, lost a tight re-election race last fall, mere days after he was convicted of failing to disclose more than $250,000 he received in gifts and home renovations.

Prosecutors first ran into trouble during the trial when it emerged that they withheld evidence that should have been given to the defense. After trial, it got worse: An FBI agent working the case filed a whistleblower complaint, charging widespread misconduct by prosecutors; a witness said prosecutors knew he lied on the stand; and the prosecution team ultimately was held in contempt for failing to reveal even more evidence.

Attorney General Eric H. Holder Jr. pulled the original prosecutors off the case in February and appointed a new team, which quickly discovered what may have been the most serious accusation of all - that the original team may have knowingly put on false testimony.

During the trial, star witness Bill Allen testified that another witness had told him that Mr. Stevens asked to be billed for the work done on his home only to “cover” himself so that the work would not appear to have been an improper gift.

It turned out to be one of the more damaging moments of Allen's testimony and helped undercut the defense's contention that Mr. Stevens intended to pay for all of the renovations done to his Girdwood, Alaska, home.

But the new prosecution team found notes from the original team indicating that Allen, when first interviewed, had no recollection of such a conversation with the other witness.

Stevens defense attorney Brendan Sullivan said in court Tuesday that he felt sick when he learned about the most recent misconduct.

“We are no match for corrupt prosecutors if they want to hide information known only to them, if they want to present false testimony,” he said.

Mr. Holder said last week that it was in the “interest of justice” that the Justice Department filed a motion to vacate the guilty verdict and dismiss the charges “with prejudice,” meaning Mr. Stevens cannot be put on trial again.

“We will review the order regarding an investigation of prosecutors' conduct and will continue to cooperate with the court on this matter,” said Justice Department spokeswoman Laura Sweeney.

“We take seriously the court's comments regarding the discovery process and will review them for possible future actions. As the attorney general indicated last week, the fact that there is an inquiry into the prosecutors' actions does not mean or imply any determination has been made about their conduct,” she said.

During court, Mr. O'Brien apologized to Mr. Stevens.

“We deeply regret this occurred,” he said.

But outside lawyers called this sort of prosecutorial overzealousness commonplace.

“The conduct by these prosecutors was outrageous. They clearly violated their responsibilities and, unfortunately, it is not that unusual. There has developed a philosophy in both the Department of Justice and U.S. attorneys' offices of arrogance and no accountability,” said Joseph diGenova, a former U.S. attorney who is now a defense lawyer.

“This is a problem all over the U.S., and it came from having three previous attorneys general [in the Bush administration] who didn't care about supervision. There was no interest in supervision, and this shows how the department and U.S. attorneys' offices have become arrogant and unresponsive.”

But it ultimately will fall to Mr. Schuelke to determine whether the actions of the Stevens-team prosecutors were criminal. He declined to comment when contacted by The Times.

Barbara “Biz” Van Gelder, a former prosecutor and white-collar defense lawyer who has worked with Mr. Schuelke, called him a “brilliant choice.”

“This is one where not everyone may agree on how it comes out,” she said, “but everyone will agree the process was fair.”

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