Judge In Stevens Case Will Tell Jury that Prosecution Knowingly Presented False Evidence

The government's bungling of the Ted Stevens prosecution hasn't persuaded the judge to grant a mistrial, but the remedy he selected may help Stevens obtain an acquittal. The prosecution's missteps are recounted here and here.

Judge Sullivan delivered a severe scolding to the prosecution and said he would bar the government from using two categories of evidence central to its case. Perhaps more important, he said he would tell the jury on Thursday that he was excluding some of the prosecution’s evidence because “the government presented evidence the government knew was not true,” an instruction that is likely to undermine the credibility of the prosecution.

The jury isn't likely to overlook such a stinging rebuke. Once the judge accuses the prosecution of knowingly presenting false evidence, the jury might be so offended that it won't believe any of the legitimate evidence the government managed to gather.

[more ...]

This is the most recent example of prosecutorial misconduct to trouble the judge:

The latest episode involved the government’s assertion in the indictment and its opening statement that Mr. Allen’s company had provided some $188,000 in free labor costs to renovate the house. To bolster that assertion, prosecutors presented time sheets from workers at Mr. Allen’s company, Veco, for work done on the Stevens home. One of the workers, David Anderson, listed 280 hours of work on the renovation project for October 2000. But grand jury transcripts — given to defense lawyers recently because of a ruling by Judge Sullivan — showed that Mr. Anderson was not even in Alaska from late September through early November.

The judge asked a simple question:

“The government knew those records were not truthful records. All along the government knew that was a lie,” Judge Sullivan said angrily to Nicholas Marsh, a prosecutor. “Why did you do it? I want an answer.”

The response:

Facing the withering verbal flogging, Mr. Marsh answered, “We didn’t see the case that way,” and argued that the information about Mr. Anderson’s absence from Alaska was not material.

That didn't sit well with the judge.

“We’re talking about the U.S. government using documents it knows are false,” Judge Sullivan responded. “You have an obligation to see this man gets a fair trial.”

Here's another example of the prosecution's inability to play by the rules:

The other category of evidence that the jury will be told to ignore was the cost of a Land Rover that Mr. Allen gave to Mr. Stevens in trade for a 1964 ½ Mustang, worth about $20,000, and $5,000. In their cross-examination, defense lawyers labored to suggest that the Land Rover cost less than the $44,000 Mr. Allen said he had paid for it. But when prosecutors questioned Mr. Allen again, they produced for the first time a check he wrote the dealership for $44,300, making the defense lawyers look foolish.

Judge Sullivan said the prosecutors should have informed defense lawyers of the check. Had they done so, he said, they would not have made a misguided effort to challenge the price of the car.

This is why criminal discovery rules are a failed experiment. The government has to turn over material exculpatory evidence, but it decides for itself what is material and what is exculpatory. Parties to civil litigation have a variety of mechanisms to obtain evidence from an adverse party, but in criminal cases, the defense gets only what the prosecution decides to disclose. And as the Stevens case illustrates, prosecutors are sometimes loathe to follow the rules.

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    100 percent right, but at least to my eyes (5.00 / 1) (#3)
    by scribe on Thu Oct 09, 2008 at 01:27:30 PM EST
    and given the history this administration has made of (a) making stuff up to convict or just incarcerate Democrats and people it decides to demonize and (b) excusing and encouraging criminality by Republicans, I will have a hard time believing that this prosecution was not deliberately thrown and in a way guaranteed to make for an acquittal of a prominent Republican senator.

    I mean - the defendant is not some street guy with no money.  He's a sitting senator.  The DoJ countenanced the shoddy preparation and conduct of the prosecution of a sitting Senator?

    When was the last time a sitting senator was indicted, let alone prosecuted?  I cannot remember it - Torricelli?  No.  He wasn't even indicted - he quit over some campaign finance issues.

    Am I supposed to believe that a half-as*ed job like this is acceptable in DoJ when the defendant is a Senator?  Puhleeze.  I've seen better prosecution conduct in night court cases alleging disturbing the peace.

    I wouldn't be surprised if he walks - even though he might have been guilty.  But I'll be very, very hard to convince that this was anything but a deliberate tanking of the case by DoJ.

    Seriously (none / 0) (#4)
    by Socraticsilence on Thu Oct 09, 2008 at 01:35:41 PM EST
    I don't want to sound paranoid but this is exactly what I was thinking, if Stevens is acquited (and this instruction seems to make that likely) and then re-elected (he'll get a boost on the acquital-- "he's good ol' boy who showed the Gub'mint what for!") it will look pretty bad.  

    Interesting point! (none / 0) (#27)
    by hairspray on Thu Oct 09, 2008 at 06:46:07 PM EST
    I'm no Stevens fan, (5.00 / 1) (#6)
    by jeffinalabama on Thu Oct 09, 2008 at 01:44:17 PM EST
    but I am a fan of justice. Should this have been a mistrial? IANAL, so a serious question.

    Under the circumstances, (5.00 / 2) (#7)
    by scribe on Thu Oct 09, 2008 at 01:58:17 PM EST
    a mistrial would likely have resulted the Double Jeopardy clause precluding a retrial.  That, because a mistrial caused by prosecutorial misconduct (as opposed to, say, a hurricane knocking down the courthouse) is counted as jeopardy for purposes of the Double Jeopardy bar.

    So, in reality, the judge is giving the prosecution every opportunity to make its case and get it to the jury.  He even let the prosecution re-open its case and call another witness, to let it try to get in information (about the amount of time spent on the renovations at Stevens' house) the more-direct evidence of which (billing records) he'd stricken b/c of the misconduct.


    thank you, I didn't (5.00 / 1) (#16)
    by jeffinalabama on Thu Oct 09, 2008 at 02:42:57 PM EST
    know that.

    Off topic (5.00 / 2) (#11)
    by lentinel on Thu Oct 09, 2008 at 02:05:37 PM EST
    Speaking of prosecutorial misconduct, is there any news about the Supreme Court's deliberations concerning Troy Davis?

    I've been wondering the same thing. (none / 0) (#18)
    by Teresa on Thu Oct 09, 2008 at 03:02:33 PM EST
    Do we even know if they agreed to hear it?

    They took no action on his case (5.00 / 1) (#25)
    by scribe on Thu Oct 09, 2008 at 03:44:13 PM EST
    during the big dump of orders (80 some pages) issued late last week and early this week.

    That's kind of unsurprising, because the big pile of orders deals with all the cert. petitions from over the summer and Troy Davis' case came to them only a couple weeks ago.

    So, the stay remains in place until they get to his case.


    Timing (5.00 / 1) (#12)
    by Frank Burns on Thu Oct 09, 2008 at 02:08:09 PM EST
    Is it normal or even fair for trials like this to be conducted so close to an election? Or does that rule apply only to indictments?

    On a related subject, when is Tom DeLay going to trial?  He was indicted over two years ago.

    As a former prosecutor, I am (5.00 / 2) (#14)
    by oculus on Thu Oct 09, 2008 at 02:33:15 PM EST
    ashamed of my profession in this instance.  But, it does seem quite unusual to me.

    Were the work sheets falsified? (5.00 / 1) (#15)
    by ding7777 on Thu Oct 09, 2008 at 02:37:59 PM EST
    280 hours is alot of hours for a contractor on a single project

    Part of the problem (none / 0) (#21)
    by Abdul Abulbul Amir on Thu Oct 09, 2008 at 03:06:06 PM EST

    Part of the problem appears to be that Stevens paid X for 1.5 times X worth of work.  $160,000 versus $250,000 if memory serves.  

    Its not clear on its face that Stevens, or anyone else for that matter would know the difference.


    I am not a lawyer (5.00 / 1) (#20)
    by themomcat on Thu Oct 09, 2008 at 03:04:30 PM EST
    But it seems to me like there was a rush to prosecute this case. Did the Justice Department intentionally make errors that would result in a mistrial or an acquittal? Was there really a case at all? Or is this just politics as usual in the Bush/Cheney administration?

    OJ revisited (5.00 / 1) (#26)
    by barbarajmay on Thu Oct 09, 2008 at 05:38:12 PM EST
    This feels very much like the prosecution of OJ Simpson for murder, where the Prosecution had a good case and should have been able to convict honestly, but they couldn't resist cheating.  They had to "sweeten" the evidence a little and hope the jury didn't notice.  The jury got peeved and correctly acquitted OJ.  I think this Senator is a crook and a dirtball, but I think he will  earn a conviction.  Once again, the prosecuting attorney just could not resist trying to "OJ" a defendant.  I wish I could say I never saw such a thing in my practice, but it is unfortunately way too common.

    Which of these is not like the other? (none / 0) (#1)
    by Steve M on Thu Oct 09, 2008 at 01:20:07 PM EST
    I don't see why the government has an obligation to turn over rebuttal evidence like the $44,300 check.  It's not part of their case in chief and it's not exculpatory.  Sometimes trial strategy involves letting the other side make themselves look silly.

    Probably because (none / 0) (#5)
    by eric on Thu Oct 09, 2008 at 01:41:53 PM EST
    they had made a request for it in discovery.

    Did they? (none / 0) (#8)
    by Steve M on Thu Oct 09, 2008 at 02:02:20 PM EST
    I mean, we can speculate all we want, but if the prosecution simply ignored an appropriate discovery request from the defense, that would hardly bolster Chris's argument that this represents a failure of the criminal discovery rules.  No matter what rules you make, there's always a chance for someone to ignore them.

    Well (none / 0) (#10)
    by eric on Thu Oct 09, 2008 at 02:05:32 PM EST
    its a pretty safe assumption that they would have requested any and all documents relating to the value of the car.  If they didn't, they would be incompetent.

    Okay (none / 0) (#13)
    by Steve M on Thu Oct 09, 2008 at 02:16:08 PM EST
    I had posted the question in hopes that someone with information would respond.  Maybe they made such a discovery request and maybe they didn't.

    Well (none / 0) (#24)
    by eric on Thu Oct 09, 2008 at 03:36:06 PM EST
    I made the assumption because I have never seen a lawyer defend a felony without some type of blanket discovery request.  They fire that discovery off as soon as the retainer is signed.

    Having read the defense's motion (none / 0) (#17)
    by Steve M on Thu Oct 09, 2008 at 02:44:31 PM EST
    it seems they merely rely upon a blanket request, served the day after the arraignment, for all documents "material to the preparation of the defense."

    It is unclear to me whether or not this renders the defense incompetent under your standard.  Setting that aside, this does not seem to me to reflect a failing of the criminal discovery rules.  If the check is material to the preparation of the defense, then the prosecution simply failed to comply with a discovery request, plain and simple.  If the check is not material to the preparation of the defense, then the defense probably should have made a more specific request that would have called for the check.

    The fact that it was left up to the prosecution to determine which documents were "material to the preparation of the defense" is not the fault of the criminal discovery rules, but a function of the fact that the defense chose to leave that determination up to the prosecution.  I guess criminal law works differently because such a blanket request would be immediately scoffed at in a civil case.


    I agree with you (none / 0) (#23)
    by eric on Thu Oct 09, 2008 at 03:34:40 PM EST
    the blanket request should not leave it up to anyone's discretion.  I would make the request, sure.  But I would also make requests tailored to get at the actual elements of the crimes charged.

    And I also agree this isn't really a problem with the discovery rules.


    It is shame that Stevens may get away (none / 0) (#2)
    by hairspray on Thu Oct 09, 2008 at 01:23:14 PM EST
    with this when common wisdom indicates that the man is ethically challenged.  On the other hand, prosecutorial misconduct is so egregious and allowed that it is time someone starts to make the case that the prosecutors themselves be tried and convicted.  After reading a number of stories from the "Innocence Project" it is clear that prosecutorial misconduct is a relatively frequent ocurrence, at least with the poor petty criminal and some rather hapless creatures.

    Actual Prosecutors (none / 0) (#9)
    by Socraticsilence on Thu Oct 09, 2008 at 02:04:42 PM EST
    Are Career DOJ right, its just US Attorneys in Charge (basically Fed-Level DAs) that are Political, correct or am I way off base?

    Was it . . . (none / 0) (#19)
    by Doc Rock on Thu Oct 09, 2008 at 03:02:48 PM EST
    . . . deliberately flubbed??

    That really does it (none / 0) (#22)
    by cal1942 on Thu Oct 09, 2008 at 03:08:08 PM EST
    The most recent poll (10/6) had Stevens up by 1 point over Begich.

    Now it looks as though Stevens will keep his seat.