April 01, 2009
This jury verdict was obtained unlawfully. The government disregarded the Constitution, the Federal Rules of Criminal Procedure, and well-established case law such as Brady v. Maryland, Giglio v. United States, and United States v. Safavian, which require the government to reveal to the defense all evidence that demonstrates the innocence of the accused.
The misconduct of government prosecutors, and one or more FBI agents, was stunning. Not only did the government fail to disclose evidence of innocence, but instead intentionally hid that evidence and created false evidence that they provided to the defense.
The government also presented false evidence on a key matter when it elicited testimony from its principal witness Bill Allen that a crucial hand-written note by Ted Stevens was an effort to "cover his ass." This testimony was false and a "recent fabrication." Members of the prosecution team knew that it was false. Nonetheless, it was presented by the prosecution at trial in a manner to give it maximum "bombshell" effect. Bill Allen had no recollection of the "CYA" statement when first questioned about it on April 15, 2008 in a meeting with four prosecutors and an FBI agent, but was subsequently "pushed" to provide the false "bombshell" testimony favorable to the prosecution.
On February 16, 2009, a new team of prosecutors was assigned after members of the original government trial team were held in contempt of court. The new team of government lawyers provided to the defense clear evidence that the "CYA" testimony was false. In essence, the government tricked the jury into returning a tainted verdict against the Senator based on false evidence.
There are heroes in this story. First and foremost is Judge Emmet G. Sullivan, who throughout the proceedings employed his judicial scrutiny and instincts, which led him to conclude that the government was acting improperly. Judge Sullivan repeatedly warned the government about its obligations to produce Brady material that was being hidden. His concerns were reflected in his strong statements during trial:
Judge Sullivan gave the defense the ability to press for evidence of misconduct. When he did so, more and more evidence came to light, including the most recent revelation about false testimony. Had Judge Sullivan accepted the word of government prosecutors as is done often in our courts, the extraordinary misconduct would never have been uncovered, and the trial verdict might have survived appellate review. Judge Sullivan prevented such a tragic outcome.
The new prosecutors are also heroes. They include Paul M. O'Brien, Chief, Narcotic and Dangerous Drugs Section; David L. Jaffe, Deputy Chief, Domestic Security Division; and William J. Stuckswich, Senior Trial Attorney, Fraud Section. They aggressively pursued the truth and provided to the defense extraordinary evidence of misconduct by other prosecutors who tried the Stevens case. Based on evidence they provided as recently as last week, it became certain that once such information came to light, the Court would have dismissed the case based on motions presented by the defense.
Attorney General Eric Holder, too, should be commended. He is a pillar of integrity in the legal community, and his actions today prove it. Moreover, he has demonstrated the kind of leadership that we defense lawyers seek and that the Department of Justice desperately needs. Ineffective leadership permits this type of prosecutorial misconduct to flourish.
This case is a sad story and
a warning to everyone. Any citizen can be convicted if prosecutors
are hell-bent on ignoring the Constitution and willing to present
There are thousands of ethical prosecutors and FBI agents who have our admiration and respect for the work they do. The wrongdoing of a few should not taint the majority. Some ethical government attorneys who came late to this case were lied to by the original trial team. Accordingly, it is crucial that this matter be fully investigated to determine the complete facts and assess responsibility.
Senator Ted Stevens has served his country with distinction in the United States Senate for more than forty years. He is a World War II veteran and a life-long public servant. He did not deserve this prosecution by rogue prosecutors trying to make reputations for themselves.
Williams & Connolly is proud to have defended Senator Ted Stevens.
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