- The Washington Times - Thursday, March 15, 2012

Justice Department prosecutors bungled the investigation and prosecution of Sen. Ted Stevens, a probe that was permeated by the “systematic concealment of significant exculpatory evidence,” in some instances intentionally, that would have independently corroborated his defense and testimony, a court-ordered report released Thursday says.

In a blistering 514-page report, Special Counsel Henry F. Schuelke III said Justice Department prosecutors never conducted a comprehensive review of evidence favorable to the Alaska Republican and failed to disclose to defense attorneys notes of witness interviews containing significant information.

The report also says two federal prosecutors intentionally withheld and concealed significant information from the Stevens defense team that would have seriously damaged the testimony and credibility of the government’s key witness.

Months after a jury convicted Stevens in October 2008 of accepting and concealing money for home renovations and other gifts, the report says, a new team of prosecutors discovered, in short order, that some of the exculpatory information had been withheld. At that point, it says, the Justice Department moved to set aside the verdict and dismiss an indictment with prejudice.

New prosecutors were assigned after U.S. District Judge Emmet G. Sullivan, in a stunning rebuke, held two prosecutors in contempt for failing to comply with the court’s order to disclose information to Stevens’ attorneys and to the court regarding allegations of prosecutorial misconduct, which were made after trial by an FBI agent who worked on the case.

In throwing out the case against Stevens, Judge Sullivan said, “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. In nearly 25 years on the bench, I have never seen anything approaching the mishandling and the misconduct I have seen in this case.”

Stevens, who served in the Senate longer than any other Republican in the chamber’s history, died at age 86 in a plane crash Aug. 9, 2010, along with seven other passengers. His de Havilland Canada DHC-3 Otter went down 17 miles north of Dillingham, Alaska, while en route to a private fishing lodge.

He lost a tight re-election race in 2008, mere days after he was convicted of failing to disclose more than $250,000 he was accused of receiving in gifts and home renovations.

The Schuelke investigation lasted two years and involved the examination and analysis of more than 128,000 pages of documents, including the trial record, prosecutors’ and agents’ emails, FBI reports and handwritten notes, and depositions of prosecutors, agents and others. As a result of the dismissal of the indictment against Stevens, the convictions of Alaska state legislators Peter Kott and Victor Kohring were reversed and new trials ordered.

The report says significant exculpatory information in the cases against Mr. Kott and Mr. Kohring were concealed from the defense, including the same impeachment information about the same government key witness that was concealed from Stevens.

In a statement, Justice Department spokeswoman Laura Sweeney said the department cooperated fully with Mr. Schuelke’s investigation and provided information throughout the investigation. She said the department is in the process of making an independent assessment of the conduct and, to the extent it is appropriate and in accordance with privacy laws, will endeavor to make its findings public when that review is final.

Since the Stevens case was dismissed, Ms. Sweeney said, the department has instituted a “sweeping training curriculum for all federal prosecutors and has taken “unprecedented steps” to ensure that prosecutors, agents and paralegals have the necessary training and resources to properly fulfill their discovery and ethics obligations.

“Justice is served only when all parties adhere to the rules and case law that govern our criminal justice system,” she said. “While the department meets its discovery obligations in nearly all cases, even one failure is one too many.

“But it would be an injustice of a different kind for the thousands of men and women who spend their lives fighting to uphold the law and keep our communities safe to be tainted by the misguided notion that instances of intentional prosecutorial misconduct are anything but rare occurrences,” she said.

Kenneth L. Wainstein, counsel for Alaska federal prosecutor Joe Bottini, said the nation’s criminal justice system is based on principles of fairness and due process and the fundamental requirement that criminal accusations should be leveled only when a person intentionally violates the law and not when one simply makes mistakes.

“The process resulting in today’s special prosecutor’s report deviated dramatically from those principles, and the result is a good man’s human errors have been miscast as intentional criminal misconduct,” Mr. Wainstein, a former U.S. attorney for the District of Columbia, said Thursday.

“We have written the attorney general to explain how far this process deviated from these principles, and to assure him and Joe Bottini’s Justice Department colleagues that, despite the mischaracterizations in today’s report, Joe is a man of honor and integrity who has devoted his entire career to serving these principles and the Department of Justice and its mission,” he said.

Mr. Bottini is among several named in the Schuelke investigation. The others are 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. An assistant U.S. attorney in Alaska, James A. Goeke, also is named in the report.

During the trial, Bill Allen, the government’s key witness and a wealthy oil contractor, testified that another witness told him Stevens asked to be billed for the work on his home only to “cover” himself so 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 Stevens intended to pay for all of the renovations 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.

The Schuelke report does not recommend that any criminal charges be brought, but blames prosecutors for intentionally withholding and concealing evidence.

• Jerry Seper can be reached at jseper@washingtontimes.com.

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