- The Washington Times - Friday, October 3, 2008

A federal judge, in an extraordinary step Thursday, said prosecutors in the false-statement trial of Sen. Ted Stevens violated their duty to disclose exculpatory evidence but ruled that the violation did not warrant throwing out the case.

“How does the court have any confidence that the [Justice Department’s] public integrity section has any integrity?” U.S. District Judge Emmet Sullivan said. “Everyone knew what they had to do, and nevertheless the government didn’t do it.”

Lead federal prosecutor Brenda Morris said failing to turn over the evidence was a “mistake,” and told the judge that she planned to refer her team for investigation by the Justice Department’s Office of Professional Responsibility.

The explosive day in the trial of the Senate’s longest-serving Republican came after prosecutors revealed late Wednesday that statements from their star witness made to investigators were incorrectly redacted in documents previously given to defense attorneys.

The statements were from Bill Allen, an oil services tycoon whom prosecutors say paid for expensive renovations to Mr. Stevens’ Girdwood, Alaska, home and gave him other gifts. Mr. Stevens, 84, is charged with failing to disclose on Senate financial forms more than $250,000 worth of gifts from Allen and others.

Allen, 71, has testified that he never sent bills to Mr. Stevens for any of the work done on the Girdwood home. Letters from Mr. Stevens asking for such bills were simply a ruse to avoid possible ethics violations, Allen testified.

But in the statements disclosed Wednesday night, Allen told an FBI agent that if he had sent bills, Mr. Stevens’ wife likely would have paid them. The comment seems to bolster Mr. Stevens’ defense: that he asked for bills but didn’t know whether they had been paid because his wife handled them.

“This is the sort of information defense counsel would have used to maximum effect in opening statement,” defense attorneys wrote in a brief seeking dismissal of the charges. “It would have shaped all aspects of the defense.”

An irate Brendan Sullivan, who is representing Mr. Stevens, said during a hearing considering his motion to dismiss: “It has put me in a position that I cannot adequately defend this man.”

Although the judge ruled against the motion to dismiss, he made several atypical offers to try to remedy the situation. Those suggestions included offering the defense a chance to make a second opening argument with the judge explaining to the jury that it was because “the government had an obligation to turn over favorable information, and it didn’t.”

Mr. Sullivan declined that offer but gladly accepted the judge’s order that the government now turn over unredacted investigative documents, grand jury testimony and other evidence. The defense said it will review those documents before the trial resumes Monday morning.

“I bet you even money we’re going to find more in there,” Mr. Sullivan said, arguing that the government had engaged in a pattern of concealing evidence.

Prosecutors already drew the ire of the judge and defense attorneys earlier this week for sending a witness back to Alaska before he could testify. They told the judge that the man was sent home for health reasons, but it raised questions about whether they did so in an effort to hide a witness whose testimony could have helped the defense.

Ms. Morris said failing to disclose Allen’s statements was an oversight and hinted that it may have been because of the trial’s aggressive schedule. Mr. Stevens, who was indicted in July, sought a quick trial so he could clear his name before he faces election to his seventh term in November.

“There was no nefarious intent in there,” she said. “This is not something we take lightly at all.”

She maintained that the newly turned over statements had no new information, and did not think it violated Mr. Stevens’ right to a fair trial. She said other investigative documents given to the defense included Allen making similar statements. In one, she said, Allen was quoted as saying “Mr. Stevens wanted to pay for everything.”

“[The defense] said their opening statement would be different, but they didn’t say how it would be different,” Ms. Morris said. “It’s a distinction without a difference.”

Judge Sullivan seemed to agree somewhat with her position: “It’s not completely new information,” he said.

But he said he was disturbed by the notion that a government employee took a black felt pen and darkened portions of a document that would have helped the defendant.

“The only reason he’s getting a fair trial is because I’m here,” Judge Sullivan said. “Thank goodness we don’t have to rely upon the United States to get a fair trial.”

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