Judge: Disclose details on federal misconduct in Ted Stevens case

McClatchy NewspapersFebruary 8, 2012 

WASHINGTON — Calling the case a national symbol of what happens when prosecutors cross the line, a federal judge ruled Wednesday that an investigative report on misconduct by Justice Department attorneys in the prosecution of former Alaska Sen. Ted Stevens must be made public.

U.S. District Judge Emmet Sullivan denied motions by some of the attorneys who are under investigation to keep the report, by special prosecutor Harry Schuelke, on their behavior permanently under seal and barred from public release.

"To deny the public access to Mr. Schuelke's report under the circumstances of this case would be an affront to the First Amendment and a blow to the fair administration of justice," he wrote.

Sullivan ruled the report will be made public March 15.

The report's exact contents are unclear, but it will detail what Schuelke has described as widespread and sometimes intentional misconduct by Justice Department attorneys in their pursuit of a U.S. senator.

"The Stevens case has come not only to symbolize the dangers of an overzealous prosecution and the risks inherent when the government does not abide by its discovery obligations, but it has also been credited with changing the way other courts, prosecutors, and defense counsel approach discovery in criminal cases," Sullivan wrote in his ruling.

A Washington jury in October 2008 found Stevens guilty of lying on financial disclosure forms covering six years in office.

But in 2009 the Justice Department moved to dismiss the charges against Stevens, admitting it failed to turn over evidence to the defense that would have helped Stevens. The prosecution team also faced misconduct allegations from an FBI whistleblower.

Stevens lost his re-election bid just days after the jury handed down the guilty verdict. He died in a plane crash in Alaska on Aug. 9, 2010.

"Mr. Schuelke's report chronicles significant prosecutorial misconduct in a highly publicized investigation and prosecution brought by the Public Integrity Section against an incumbent United States senator. The government's ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate," Sullivan wrote in his ruling.

Schuelke's 500-plus page report is the result of a two-and-a-half-year investigation. Its contents have been under seal, though Schuelke's broad conclusions were made public in November.

Schuelke said he found widespread and at times intentional misconduct by Justice Department attorneys in the Stevens case and other Alaska corruption cases.

But he did not recommend criminal charges for the prosecutors because Sullivan never issued a direct order in the Stevens trial that was disobeyed by the federal attorneys, the special prosecutor concluded.

Sullivan wrote in Wednesday's ruling that the release would help the public understand the decision not to seek criminal charges.

Sullivan wrote in his ruling that, after a highly publicized trial and months of proceedings in which the prosecution team "repeatedly denied any wrongdoing and zealously defended the guilty verdict," the attorneys now cannot dodge public accountability by keeping the report under seal.

Schuelke's investigation targeted prosecutors Brenda Morris, Nicholas Marsh, Joseph Bottini, James Goeke, Edward Sullivan and William Welch. Welch supervised the Justice Department's Public Integrity Section, which handles corruption cases.

Morris, Marsh and Edward Sullivan worked for Welch, while Bottini and Goeke were on loan to the prosecution from the U.S. Attorney's Office in Anchorage, which otherwise was excluded from the cases. Marsh committed suicide in 2010.

Judge Sullivan's ruling said two of the lawyers under investigation didn't object to the public release of the report. Two opposed the release, and the other two asked for the report to be sealed permanently. His ruling blacked out which of the attorneys asked for the report to be kept from the public.

"While objecting generally to release of the report as unfair and prejudicial to the opposing attorneys' privacy and reputational interests, those attorneys have not specified any compelling interest that would meet their high burden to justify keeping the report under seal," the judge wrote.

The Justice Department's Office of Professional Responsibility conducted a separate investigation into prosecutorial misconduct in the Stevens trial. Its findings have not been made public.

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Ted Stevens, long Alaska's champion in Senate, dies at 86

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McClatchy Newspapers 2012

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