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Counsel: Prosecutors overzealous in Stevens litigation

Posted: March 29, 2012 - 7:24am

WASHINGTON — A special counsel testified Wednesday that overzealous U.S. prosecutors were so intent on winning a corruption case against the late Sen. Ted Stevens that they intentionally withheld information they were obligated to give the defense.

Henry Schuelke III told the Senate Judiciary Committee that high-level officials in the Justice Department’s public integrity section failed to supervise the prosecution team, also a factor in the botched case that led a judge to dismiss Stevens’ conviction.

Senators acknowledged that they were personal friends with Stevens, an Alaska Republican who never got to see Schuelke’s devastating report on prosecutorial misconduct released this month. He died in Alaska in August 2010.

But committee members said they were just as concerned for all defendants who are convicted because of wayward prosecutors who break the rules, and suggested a law may be necessary to remedy the problem.

Republican Sen. Lisa Murkowski, who represented Alaska along with Stevens, has introduced legislation to establish a universal standard for prosecutors, to ensure that they turn over information that could be favorable to a defendant.

In one of the most embarrassing moments for an attorney general, Eric Holder — who was not in office when Stevens was convicted in 2008 — had to request that U.S. District Judge Emmet Sullivan dismiss the case. Sullivan did so in 2009 and then appointed Schuelke, a former prosecutor, to conduct his investigation.

The judge had to learn of the misconduct from an FBI whistleblower.

Schuelke’s 525-page report released this month gave the most unflattering portrayal of the government’s conduct toward Stevens, who was 86 when he died in a plane crash.

Asked why he thought prosecutors would defy their legal obligations, Schuelke said: “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.”

Sen. Al Franken, D-Minn., wanted to know whether the prosecutors’ conduct was illegal.

“What occurred in this case in a number of instances is a violation of an obligation imposed by the courts, interpreting the Constitution,” Schuelke responded. “Using your term broadly, I would have to say it was illegal.”

Kenneth Wainstein, attorney for Stevens case prosecutor Joe Bottini, said that Schuelke “failed to cite any evidence that our client’s errors were intentional.”

Wainstein, the former chief U.S. prosecutor for the District of Columbia, wrote Holder this month that Bottini “on seven separate occasions pressed his superiors at the public integrity section ... to voluntarily make a disclosure” of material favorable to the defense.

Bottini, who was detailed to the Justice Department’s anti-corruption section from the U.S. attorney’s office in Alaska, “was rebuffed by the (public integrity section) supervisors at each turn,” the letter said.

The Justice Department is conducting its own internal investigation of the prosecution team, which department officials said is nearing completion.

Sen. John Cornyn, R-Texas, a former state attorney general, asked how senators can believe the Justice Department’s assertion that this case does not present an ongoing problem.

“I do not believe, on the basis of our investigation, what happened in the Stevens case is representative of what happens in cases brought by the thousands across this country by the Department of Justice,” Scheulke said.

Sen. Dick Durbin, D-Ill., said after that assessment, “Pardon my skepticism.” He said he’s not sure that “we will ever avoid” zealous prosecutors seeking the outcome they’re looking for.

Schuelke said that if the judge had issued a clear order that prosecutors turn over favorable material and the government lawyers failed to comply, the prosecutors could have committed criminal contempt. Sullivan, however, said he saw no reason to do that because prosecutors knew the law.

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