DOJ asks Court to Toss Ted Stevens' Conviction

The Justice Department has asked a federal court in Alaska to throw out the conviction of former Senator Ted Stevens.

In a statement, Attorney General Eric Holder said he and other Justice lawyers had reviewed the case and "concluded that certain information should have been provided to the defense for use at trial."

"In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial," Holder said.


As to what wasn't turned over:

In a three-page memo filed this morning in U.S. District Court, Justice Department lawyer Paul M. O'Brien, who was brought on to review the case, said he discovered evidence that prosecutors did not turn over notes from an interview in April 2008 with the case's key witness, Bill Allen.

TChris provided most of TalkLeft's coverage of the trial, assembled here.

As he wrote when the Court admonished prosecutors during the trial:
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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    I agree with the decision (5.00 / 1) (#3)
    by Bemused on Wed Apr 01, 2009 at 09:12:54 AM EST
      but can't help but be struck how with my poor schmuck clients not only would it be unusual for for a prosecutor to admit to a Giglio violation related to agents' notes of an interview but even more so for them to concede prior to argument that the error was not harmless.

      It's the "right" result but also the kind that feeds the belief there are two brands of justice, and most people don't get the U.S. Senator kind.

    Something's fishy (2.00 / 1) (#5)
    by hgardner on Wed Apr 01, 2009 at 09:38:08 AM EST
    The AUSA's I see don't botch cases that badly; I suspect the Bushies assumed Stevens would win on appeal.  He'll get his pension and the like back.

    Unless, of course, this kind of thing (5.00 / 1) (#7)
    by Joelarama on Wed Apr 01, 2009 at 09:48:47 AM EST
    happens more than we know.  Ted Stevens has every advantage a criminal defendant can have, in terms of access to counsel, political power, and presumably insiders who could ferret this behavior out  behind the scenes and make sure it comes to light.

    Few criminal defendants can stand up to a U.S. Attorneys office like a (former) senator can.


    my point (none / 0) (#11)
    by Bemused on Wed Apr 01, 2009 at 10:36:28 AM EST
      was not so much that the "typical" defendant might not eventually obtain the same relief for similar facts by prevailing on his motion. I am just struck by the fact that here DOJ removed the trial prosecutors, had superiors conduct an internal review and file for dismissal based on the defense grounds quite expeditiously and didn't even try to argue harmless error.

      Usualy these issues arise pretrial after the defense receives standard discovery or Jencks materials including actual statements, FBI 302s etc, and then moves for disclosure of rough notes. the prosecutioncan argue the agents' notes are not discoverable unless they fit into Brady/giglio-- or they can deny they exist. I'm not sure what hapened here because i haven't followed it.

      Did they lie about the notes existing? Did they misreprepresent the substantive content of the notes  claiming they contained nothing helpful for impeachment? Were they negligent in not learning of the notes existence following a defense discovery request?



    I don't know the answer to any of those questions (5.00 / 2) (#14)
    by Joelarama on Wed Apr 01, 2009 at 11:03:30 AM EST
    I wasn't really responding to your point.

    It wouldn't surprise me if Stevens got a better brand of justice, particularly in Holder's decision not to proceed on harmless error.  It goes without saying that if a prosecutor believes the error was harmful it would be unethical to argue harmless error.  But I doubt the everyday defendant gets that same ethical treatment from every prosecuter.


    Of course not every defendant (none / 0) (#21)
    by oculus on Wed Apr 01, 2009 at 11:44:18 AM EST
    has the benefit of the trial judge publicly admonishing the prosecution.  

    My Guess (2.00 / 1) (#15)
    by squeaky on Wed Apr 01, 2009 at 11:07:25 AM EST
    Is that Stevens got a bone from BushCo DOJ (withholding evidence), and Holder is doing what he has to do.

    Disgraceful (none / 0) (#1)
    by jbindc on Wed Apr 01, 2009 at 09:12:08 AM EST
    Not turning over evidence, forcing witnesses to lie.  I'm glad he's out of the Senate, but it isn't right that he lost an election based on the outcome of a trial that was rigged.  

    He IS corrupt though and that (none / 0) (#9)
    by lilybart on Wed Apr 01, 2009 at 10:22:54 AM EST
    is why he lost the election.

    I don't think so (none / 0) (#13)
    by jbindc on Wed Apr 01, 2009 at 10:51:52 AM EST
    Stevens led in the polls until he was convicted - a week before Election Day.

    But he IS corrupt. nt (none / 0) (#16)
    by lilybart on Wed Apr 01, 2009 at 11:11:09 AM EST
    So is Charlie Rangel (5.00 / 1) (#18)
    by jbindc on Wed Apr 01, 2009 at 11:14:42 AM EST
    But he's still sitting in Congress....

    is corrupt? (none / 0) (#30)
    by diogenes on Wed Apr 01, 2009 at 09:06:37 PM EST
    I thought that the point of trial was to prove whether or not Stevens was corrupt.  

    corrupt (none / 0) (#31)
    by Bemused on Thu Apr 02, 2009 at 07:25:09 AM EST
     and guilty of a crime are two different, although sometimes overlapping, things.

      There are many things I consider "corrupt" that are not even arguably crimes. for some things that are potentially crimes, I think that while proof beyond a reasonable and a fair trial are essential to criminal liability and loss of life, liberty andproperty, the standard for identifying a person as "corrupt" in public opinion is and should be less.



    Good. (none / 0) (#2)
    by Joelarama on Wed Apr 01, 2009 at 09:12:22 AM EST
    Wow did the prosecutors botch this case.

    Man (none / 0) (#4)
    by Steve M on Wed Apr 01, 2009 at 09:27:22 AM EST
    I'm sure he wonders where he is supposed to go to get his Senate seat back at this point.  Really shameful conduct by the DOJ in this case.

    Exactly (none / 0) (#6)
    by jbindc on Wed Apr 01, 2009 at 09:46:43 AM EST
    How can he be made "whole" again if he decides to sue civilly?

    Wow (none / 0) (#8)
    by andgarden on Wed Apr 01, 2009 at 10:20:58 AM EST
    Was the Bush DOJ just one big clown show?

    I dunno (5.00 / 2) (#19)
    by Steve M on Wed Apr 01, 2009 at 11:23:16 AM EST
    but it seems like most, if not all, of the wrongdoing in this case came from career DOJ staff.  We can certainly wear tinfoil if we like, but I've never seen so much as a credible allegation that political appointees influenced the handling of this trial.  It seems like the trial lawyers just flat-out butchered it.

    Well, I'm not much for tinfoil, myself (none / 0) (#20)
    by andgarden on Wed Apr 01, 2009 at 11:37:40 AM EST
    and I don't know anything about the prosecution team, but don't career prosecutors at the DOJ tend to be pretty competent? The idea that they would botch the prosecution of a person who was, in 2006, 3rd in line for the Presidency just seems unbelievable to me.

    Did Trinity produce (none / 0) (#22)
    by oculus on Wed Apr 01, 2009 at 11:45:16 AM EST
    competent prosecutors?

    What Trinity are you referring to? (none / 0) (#23)
    by andgarden on Wed Apr 01, 2009 at 11:46:37 AM EST
    Oops. Regent's, Monica Gooding's (5.00 / 1) (#27)
    by oculus on Wed Apr 01, 2009 at 11:53:15 AM EST
    alma mater. <snk.>

    I think the commenter meant (none / 0) (#25)
    by Joelarama on Wed Apr 01, 2009 at 11:48:20 AM EST

    FWIW (none / 0) (#24)
    by squeaky on Wed Apr 01, 2009 at 11:46:58 AM EST
    William Welch II was handpicked by Abu Gonzales.

    Again (none / 0) (#26)
    by Bemused on Wed Apr 01, 2009 at 11:50:04 AM EST
      does anyone know whether the prosecutors:

     --lied about the existence of notes they knew existed? very very bad

     -- intentionally misrepresented the substance of the notes? very very  bad

    -- negligently misrepresented the substance? bad

     -- failed to inquire whether such notes existed? bad

     -- reviewed the notes and made a judgment call now considered wrong they were not discoverable? bad

     -- inquired and were told by the agents there were no notes? bad by agents (very very bad if agent lied only bad if they forgot)  and imputable to the government

      Sometimes people deliberately do very bad things. Sometimes they just screw up.

      Either way, the right thing to do is own up to it and take whatever action is necessary, including dismissal.



    a quick and dirty (none / 0) (#28)
    by Bemused on Wed Apr 01, 2009 at 12:06:34 PM EST
      suggests that at least part of it is the lead trial prosecutor, Brenda Morris, knew of the notes relating to Allen existence and knew they had to be disclosed but withheld them until the trial was well under way and limited the defense's ability to use them in cross examination of Allen (the key witness)

      The judge did not buy her "human error excuse" so that does sound very very bad.

      This type of stuff is not unheard of at any level of the courts.

      It does soeund as though sullivan took a very firm stand with the government here. would he have with Joe the crack dealer? I have no idea, maybe he is that type of judge, maybe he's influenced at least subconsciously by the players.

      The judge's stance may well have influenced DOJ in charting its course. Maybe it was part of the reason along with Steven's position. Maybe it was the whole reason in that either it triggered a review which reached the conclusion it was inexcusable or it was decided that even if DOJ thought it had some valid arguments this judge wasn't going to buy it and would dismiss the case over opposition which would be an even bigger black eye.


    is this (none / 0) (#29)
    by cpinva on Wed Apr 01, 2009 at 06:01:03 PM EST
    Was the Bush DOJ just one big clown show?

    a trick question?


    This makes little sense (none / 0) (#10)
    by eric on Wed Apr 01, 2009 at 10:33:25 AM EST
    to me.  Holder finds out just how bad this prosecution was and then decides that the conviction cannot be defended further.  Fine.  But letting the whole thing go?  Let Stevens totally off the hook?

    Now, if Holder looked at the case and believed that Stevens is actually innocent, then I agree with his decision.  But I am not hearing that.

    that part of it (none / 0) (#12)
    by Bemused on Wed Apr 01, 2009 at 10:39:17 AM EST
     doesn't raise the same alarm to me as the choosing not to argue harmless error analysis should apply.

      The argument that dismissal is warranted for prosecutorial misconduct but that double jeopardy does not apply to bar retrial is not a good one.


    that makes great sense (none / 0) (#17)
    by Bemused on Wed Apr 01, 2009 at 11:13:21 AM EST
      look Ted, we're going to exercise our discretion to charge you and seek a conviction costing you the election, not to mention a lot of money, anguish and cost to personal reputation, but don't sweat it, we'll viloate the rules so after your conviction and the loss of the election the case will be dismissed.

      Even a paranoid,  conspiracy-theory loving,  tinfoil hat guy  would likely conclude that if for some bizarre reason the administration would choose to prosecute a person it did not want convicted, it would be a lot easier just to present a weaker case and let him get acquitted.