Justice Department: We won't repeat Ted Stevens mistake

McClatchy NewspapersMarch 28, 2012 

WASHINGTON — The U.S. Justice Department said Wednesday that its misconduct in the case against then-Alaska Republican Sen. Ted Stevens was an isolated incident and Congress shouldn't pass a law forcing prosecutors to disclose all evidence they have to the defense.

Alaska Republican Sen. Lisa Murkowski is pushing a bill to require prosecutors to turn over evidence to the defense immediately that could be favorable to the accused. Alaska Democratic Sen. Mark Begich, who beat Stevens in an election just days after his conviction, which later was thrown out, is a co-sponsor. The American Civil Liberties Union, among others, supports the bill, saying that this type of problem happens too often.

But the Justice Department released a statement Wednesday as the Senate Judiciary Committee held a hearing on an investigator's report that concluded the Stevens investigation and prosecution "were permeated by the systematic concealment" of evidence that would have helped Stevens.

"The Stevens case was deeply flawed. But it does not represent the work of federal prosecutors around the country who work for justice every day," the Justice Department said in its statement. "And it does not suggest a systemic problem warranting a significant departure from well-established criminal justice practices that have contributed to record reductions in the rates of crime in this country while at the same time providing defendants with due process."

The Justice Department said it already had made internal revisions to see that prosecutors followed the law and this didn't happen again.

Special prosecutor Henry Schuelke, who produced the court-ordered report on misconduct in the Stevens case, suggested to the Senate Judiciary Committee on Wednesday that the Justice Department's response has been impressive but falls short.

He said the difference between the internal changes and congressional action was whether the force of law would be behind the policy that prosecutors must disclose all evidence that was favorable to the defense. That's a higher standard than "materiality," in which prosecutors disclose only what they think could change the outcome of the case, he said.

The Justice Department said it was worried that disclosures of all evidence could put victims and witnesses in danger, interfere with other investigations and pose national security risks.

There have been other cases with Justice Department errors comparable to the Stevens prosecution. The same judge who presided over Stevens' case, for example, found in 2009 that prosecutors improperly had withheld from the defense important psychiatric records of a government witness who was used in a "significant" number of the Guantanamo Bay terrorism cases.

The Justice Department said the failures in the Stevens case "were not typical" and that it had filed more than 800,000 cases over the past decade with more than a million defendants. It said that less than three-hundredths of 1 percent had led to investigations by the Justice Department's Office of Professional Responsibility over failure to disclose evidence.

Schuelke told the Senate Judiciary Committee that he thinks that prosecutors withheld evidence in the Stevens case just because they wanted to win.

"That motive to win the case was the principal operative motive. I do not believe any of the prosecutors harbored a personal animus toward Sen. Stevens. I don't believe they sought fame and glory. They did, however, want to win the case," Schuelke said.

Schuelke's report takes no position on whether Stevens was guilty. The late former senator was accused of taking excessive gifts and lying about them on his financial disclosure forms. Most of the gifts were from Veco Corp. chief Bill Allen, a close friend and fishing pal of Stevens' who turned witness for the prosecution and pleaded guilty to corruption charges, including bribing state lawmakers.

A Washington jury found Stevens guilty of accepting excessive gifts and failing to report them. Stevens lost his re-election bid to Begich soon after the conviction in 2008 and died in a plane crash in Alaska in 2010.

The prosecution of Stevens happened under the administration of George W. Bush, and the Obama administration is emphasizing that its own attorney general, Eric Holder, dismissed the charges against Stevens after acknowledging prosecutorial misconduct.

U.S. District Judge Emmet Sullivan appointed Schuelke to determine whether any of the prosecutors in the Stevens case should face criminal contempt charges. Schuelke found that they shouldn't, because they'd never disobeyed a specific order by the judge telling them to follow the rules. He said Wednesday that he had no position on whether they were guilty of obstruction of justice.

Figures that the federal court system released Wednesday show the government has paid Schuelke's firm nearly $1 million from April 2009 to this month, when his report was published. That comes on top of the $1.8 million in federal money spent on private lawyers for the members of the Stevens prosecution team to defend themselves against the charges.

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