- The Washington Times - Wednesday, March 28, 2012

The Democratic chairman and ranking Republican on the Senate Judiciary Committee said at a hearing Wednesday the prosecutorial misconduct uncovered by a special counsel in the Justice Department’s prosecution of the late Alaska Sen. Ted Stevens cannot be tolerated.

“What happened in the Stevens case should not happen again, whether the defendant is prominent or an indigent defendant,” said Sen. Patrick J. Leahy, Vermont Democrat and committee chairman. “Significant evidence was not disclosed to the defense and critical mistakes were made throughout the course of the trial that denied Sen. Stevens a fair opportunity to defend himself.

“The sloppiness, mistakes and poor decisions in connection with the Stevens case disturbed the judge hearing the case and disturb me,” he said. “The Justice Department needs to ensure that such a situation is never repeated.”

Sen. Chuck Grassley of Iowa, the committee’s ranking Republican, went a step further, adding that “a lot went wrong in the prosecution of Sen. Stevens” and yet “it seems nobody has been held accountable.”

He said the committee had “an obligation to hold Justice accountable for what went wrong here and prevent it from happening again in the future.”

Their comments came at a committee hearing on a court-ordered report on the botched Stevens prosecution.

The sole witness was Henry F. Schuelke III, the court-appointed special counsel who wrote a blistering 514-page report.

The Schuelke report, which the Administrative Office of the U.S. Courts said cost nearly $1 million, said Justice Department lawyers bungled the investigation and prosecution, saying the probe was permeated by the “systematic concealment of significant exculpatory evidence.” It said evidence was withheld, some intentionally, that would have independently corroborated Stevens‘ defense and seriously damaged the credibility of the key witness against him.

Prosecutors are required to turn over exculpatory materials to the defense.

A jury convicted Stevens on Oct. 27, 2008, on seven felony counts of failing to disclose more than $250,000 worth of home renovations and other gifts, mainly from an Alaskan oil service company. A few days later, he narrowly lost a bid for re-election to Sen. Mark Begich, a Democrat. Stevens died in a plane crash in August 2010.

U.S. District Judge Emmet G. Sullivan threw out the case in April 2009 at the request of the Justice Department, which found after trial that exculpatory evidence had been withheld. Judge Sullivan appointed Mr. Schuelke to investigate six prosecutors involved in the investigation and trial.

“This is a sad story,” Mr. Schuelke told the committee. “I took no joy in coming to this conclusion. I hope I never have to do it again.” He said if prosecutors had disclosed some of the exculpatory information to the Stevens defense team, “it may well have affected the outcome of the trial.”

“The motive to win the case was the principal operating motive,” he said, adding that he did not think prosecutors acted out of “animus” to Stevens.

Mr. Schuelke also said while some of what happened was “broadly illegal,” he could not bring criminal contempt charges against two prosecutors he thought had intentionally withheld exculpatory information because the judge had not specifically issued an order telling them to turn over such evidence. He said had an order been issued, he would have gone after the prosecutors for criminal contempt.

Mr. Grassley said that while Stevens‘ rights were intentionally violated, “it seems no one was held accountable.” He said the Schuelke report contained “shocking statements that call into question the conduct of those involved in this prosecution, and threatens to resonate further throughout the Justice Department.”

The Justice Department’s office of professional responsibility is investigating the allegations.