Lawyers for U.S. Sen. Ted Stevens, R-Alaska, accused prosecutors Monday of attempting to unfairly try Alaska's senior U.S. senator next month by introducing "irrelevant and prejudicial evidence" that has nothing to do with the disclosure violations he's charge with.
Defense attorney Robert Cary asserted that new issues raised by the government "in its unnecessary public filing" nine days earlier have no place in the trial, scheduled to begin Sept. 22 in Washington, D.C.
"Instead, they are an obvious attempt to smear the senator's character," Cary wrote.
The defense filings came amid a blizzard of motions and responses filed by both sides Monday in U.S. District Court in Washington, the day before Stevens faces six challengers in today's Republican primary.
Voters in Alaska will also decide whether to limit new mining ventures in the state and decide whether U.S. Rep. Don Young, the state's only House representative, will win his party's nomination for re-election.
The pretrial jockeying by the two sides in the Stevens case is an effort to use the law, court procedures and the Constitution to their advantage as the structure of the trial takes shape.
Cary said among the issues that government should not have raised was an undisclosed $31,000 loan by a developer to Stevens in 2001 that let him turn a $5,000 investment in an unbuilt Florida condo into a $100,000 profit, and a discount of more than $10,000 on a Jeep obtained by the oil field services company Veco for Stevens' adult daughter Lily in 2005.
In another filing Monday, Cary served notice on the government that he might attempt to question former Veco chairman Bill Allen, the government's chief witness, about an Anchorage Police Department investigation of him.
Cary didn't provide details, but the Anchorage Daily News and other media reported that Anchorage police investigated Allen for sexual abuse of a minor involving allegations involving a girl who was under 16. That investigation came up in a closed-door hearing in the bribery trial of a state legislator in Anchorage last year in which Allen was the lead witness, but the jury never heard the allegations.
Cary said the government brought up the matter in a sealed motion in which it sought a ruling that any such cross-examination of Allen would be "inflammatory and impermissible" under court procedure. Cary said the government's motion itself was inappropriately filed under seal.
The defense filings came amid a blizzard of motions and responses filed by both sides Monday in U.S. District Court in Washington, the day before Stevens faces six challengers in today's Republican primary. The pretrial jockeying by the two sides is an effort to use the law, court procedures and the Constitution to their advantage as the structure of the trial takes shape.
U.S. District Court Judge Emmet Sullivan has agreed to hear the case on an expedited basis to improve Stevens' chances of a verdict before the general election Nov. 4.
Stevens insists he's innocent and will be exonerated by a jury.
In one of his filings, Stevens argued that the government was unfairly trying to bring in evidence of bribery when it was only charging Stevens with failing to report more than $250,000 in gifts, mostly from Allen and Veco.
"The utter illogic of the government's position reveals what is really going on," Cary wrote. "The government wishes to smuggle in suggestions of bribery and corruption that it has not charged and cannot prove. The indictment alleges no quid pro quo for any gifts Sen. Stevens allegedly received, but the government now asks permission to introduce evidence of official actions in order to invite the jury baselessly to infer just such a quid pro quo."
For their part, prosecutors lashed back at that argument. Prosecutors said the evidence is crucial to establishing motive. The information it wants to show the jury also details the close relationship between Stevens and Allen, who had ready access to Stevens over the phone, in e-mail and in person.
Their job is to show that Stevens "knowingly and intentionally" lied on his disclosure forms, prosecutors wrote. To do that, they need to prove a motive.
Prosecutors argued in their motions that if Stevens had reported the gifts they accuse him of accepting but failing to report, he would have faced questions that could have drawn media scrutiny as well as ethics complaints and a possible ouster from office.
He wanted to avoid "the negative consequences flowing from such disclosure, particularly during a time frame when the defendant had been engaged in performing official acts for Veco and Bill Allen," prosecutors wrote.
In other words, it was necessary for him to hide how close he was to Allen, prosecutors said, because he "would have subjected himself to public scrutiny and criticism regarding his ongoing relationship with Veco and Bill Allen, and the fact that he was laboring under a conflict of interest."
"Most importantly, disclosure of the things of value and the negative repercussions flowing from that disclosure would have threatened the defendant's future stream of things of value from Veco, Bill Allen and others."
Prosecutors also countered arguments that the charges against Stevens aren't specific enough. Stevens "cannot credibly claim that he cannot understand the charges or prepare his defense," government lawyers wrote, because they are "exceptionally detailed."
They cite one example: "Where the indictment charges that Stevens received things of value at the Girdwood residence, the indictment specifically notes that the 'renovation work included jacking up and resting the house on stilts, building a new first floor with two bedrooms and a bathroom, renovating the existing residence, and adding a garage with workshop and a second-story wraparound deck.'"
Also, while Stevens is entitled to know what charges he faces, prosecutors wrote that he is not owed an explanation of "each and every detail of how (the case) will be proved."
They also dispute Stevens' claim that the indictment violated provisions of the Constitution's Speech or Debate clause, which bars the government prosecutors from using speeches and legislation introduced by members of Congress as evidence. Prosecutors said that evidence protected by legislative immunity granted by the Constitution was not shown to the grand jury that ultimately indicted Stevens.
"The prosecutors who were involved in the grand jury proceedings are not aware of any evidence introduced to the grand jury that reflects an act taken by Stevens, such as bills or statements on the floor of the Senate, that would be considered protected legislative activity."
As for Stevens' claim that under the Constitution it's up to the Senate to police itself when it comes to disclosure rules, prosecutors counter that the case "does not involve enforcement of internal Senate rules."
"It involves enforcement of an unambiguous rule contained in the criminal law: do not lie when required by law to provide honest disclosure of assets." That was a law Congress itself passed.
On the matter of the evidence involving the Florida loan, the Jeep and other issues, Stevens' lawyers argued that it would prejudice the jury. In the case of the Florida loan in particular, "Sen. Stevens did nothing improper," Cary, his attorney, wrote.
The Jeep deal "is a misguided attempt to impugn Sen. Stevens and his family before the jury," Cary argued.
In its earlier filings, the government included excerpts of two e-mails Stevens sent to his friend Bob Persons, the Double Musky restaurateur in Girdwood. The government said Stevens was acting guilty in those e-mails. The excerpts cited by the government suggested Stevens was asking Persons to be less than candid before a grand jury.
Persons kept an eye on Veco's renovations to Stevens' home in Girdwood starting in 2000, the majority of the alleged unreported Veco gifts in Stevens' indictment.
Cary submitted two entire e-mails, which he said showed them to be innocuous.
In one, dated May 17, 2007, Stevens advises Persons to get his own attorney involved. Apparently Persons was afraid of an indictment himself, and Stevens said he needed a lawyer.
In the second e-mail, sent six hours after the first, Stevens agait stressed the important of legal counsel.
"If they know you have legal advice, they will be more careful," Stevens said.
Stevens also provided some advice about how Persons should proceed.
"Again, don't let them rattle you and don't answer questions you don't KNOW the answers to," Stevens said. "They have lots of info from Bill," Stevens said, a likely reference to Bill Allen.