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DOJ to Senator Ted Stevens: “We Deeply Regret That This Has Occurred”

It’s not often that the U.S. Department of Justice prosecutes a sitting U.S. Senator, obtains a conviction at trial, and then concludes it has no choice but to voluntarily dismiss the charges and let the former defendant walk free, totally vindicated.  But that’s what happened in United States v. Ted Stevens, the government’s case against the longest-serving Republican in the Senate’s history.  If this has ever happened before in the United States, I’m unaware of it.

To quote from today’s New York Times:

Judge Emmet G. Sullivan dismissed the charges against Mr. Stevens, which was expected given the way the case has disintegrated since the conviction in October. But the judge went well beyond that step, declaring that what the prosecutors did was the worst “mishandling or misconduct that I’ve seen in my 25 years.”

Judge Sullivan spoke disdainfully of the prosecutors’ repeated assertions that any mistakes during the trial were inadvertent and made in good faith. He said he had witnessed “shocking and serious” violations of the principle that prosecutors are obligated to turn over all relevant material to the defense.

The judge appointed the attorney Henry Schuelke as special prosecutor to investigate possible criminal contempt charges against the prosecution team.

How could this happen?  The article suggests the lawyers may have been grossly overworked, rushed to trial by an aggressive defense (damn good move by the defense, if true), or simply outlawyered by Williams & Connolly, a notoriously tough white collar criminal defense firm and the D.C. “go to” firm for cases like this.  Or, of course, the attorneys could have simply gotten carried away and decided to play outside the rules of criminal procedure and legal ethics.  In the heat of a high-stakes criminal case, anything can happen.

But with a special prosecutor appointed by a federal judge to investigate the Stevens prosecutors, we may never know exactly how this all unfolded.  There will be theories, of course, perhaps even a book or two – John Grisham may be turning this over in his mind right now, trying to figure out if there’s a novel there somewhere (sure there is John!).

The lawyers under investigation will “lawyer up” and perhaps take the Fifth (which is sure to cost them their jobs).  Some may cut deals and testify against others, or some may be granted immunity; how could they afford the defense costs if they don’t?  In other words, the special prosecutor will use the same tools against them that they were used to using against their targets.

In addition to the risk of criminal contempt, there are serious ethical issues that may have to be investigated by the D.C. and Alaska Bars (some of the lawyers were based in Alaska).

In a very real sense you have to feel sorry for these prosecutors – no one goes to law school and becomes a career prosecutor expecting to get caught up in something like this.  And more than almost anyone else, they had to have known the risks they were taking, and the consequences if they were discovered.  They took on a very big fish, and that fish was backed by an enormously powerful and resourceful law firm that spared nothing in the defense of its client.  And so, the hunters become the hunted.

Who Watches the Watchmen?

Who Watches the Watchmen?

“How does the court have confidence that the public integrity section has public integrity?”
Judge Emmett Sullivan, during the trial of former Senator Ted Stevens


Prosecutor: I already got no proof how the victim got hold of that heroin. Now you’re saying I can’t put Hodgins on the stand? Why?
FBI Agent: You don’t wanna know the answer to that.
Forensic Investigator: Why doesn’t she wanna know?
Prosecutor: As the prosecutor in this case, I’m obliged to share everything I know with the defense.
Forensic Investigator: [starts to explain…]
Prosecutor: Whoa! Goodnight!

From TV Show “Bones”


Prosecutors have a legal duty to provide criminal defendants with exculpatory evidence. Every criminal prosecutor knows this – it’s probably Rule No.1 for prosecutors: “YOU MUST GIVE DEFENDANT EXCULPATORY EVIDENCE.” This has been a constitutional right since the 1963 Supreme Court decision in Brady v. Maryland.

Rules 2 and 3 are, don’t forget Rule No. 1.

Today’s decision by the Obama Justice Department to dismiss criminal charges against former Senator Ted Stevens means that prosecutors at the highest levels of the DOJ forgot this rule (or disregarded it). This is an enormous embarrassment for DOJ, and a probably a career killer for the attorneys involved, who are likely to be sacked, at the very least. (Keep in mind that former U.S. Attorney General Roberto Gonzales has been unable to find a private law firm job 18 months after his resignation, apparently due to the stigma associated with the assistant AG firings and other controversies associated with his tenure. It’s a tight job market for lawyers these days, but not that tight.)

Vindication is probably small consolation for Senator Stevens, whose loss in the last senatorial election was almost certainly due to his conviction just before the election. At age 85 he may recover his reputation, but he’s not likely to recover his Senate seat.