Lack of time cited in unraveling of case

Attorneys: Prosecutors' actions likely not politically motivated in Stevens case

Posted: Monday, April 13, 2009

WASHINGTON - The Justice Department team charged with prosecuting former Sen. Ted Stevens miscalculated by not seeking more time to prepare for the high-stakes corruption trial and fell victim to inexperience and thin staffing, which contributed to its alleged mishandling of witnesses and evidence, according to interviews with more than a dozen lawyers who followed the case.

Last year's compressed trial timeline forced government lawyers to jam their preparations into seven weeks and intensified a series of challenges: the late addition of a key lawyer; an aggressive adversary who deluged them with requests for documents; and a skeptical judge whose behavior turned unpredictable, then punitive.

The difficulties led U.S. District Judge Emmet Sullivan last week to dismiss a conviction against Stevens, who represented Alaska in the U.S. Senate for nearly 40 years, and to turn the tables and initiate a criminal probe of six of the prosecutors.

Former prosecutors, defense lawyers and onetime Justice Department officials also described more chronic liabilities in the department's Public Integrity Section: a loss of staffing and strong supervision and its insulation from politics.

Only days after the case against Stevens collapsed, lawyers inside and outside the department were chronicling its demise and picking apart the skill of the prosecution team. But government officials and defense attorneys alike said they do not think that prosecutors in the Public Integrity Section or its leaders acted out of base political motivations.

Prosecutors and FBI agents are now hiring their own lawyers and pointing the finger at each other, even as a special prosecutor and the department's ethics watchdogs are trying to determine whether members of the team broke the law to cheat their way to victory, or merely succumbed to lapses of incompetence, inexperience or lax supervision.

The six members of the prosecution team declined to comment or did not return phone calls and e-mail messages left with them and their friends. But department spokeswoman Laura Sweeney said the unit has a solid record, having secured nearly 400 convictions since 2001.

"For more than 30 years, the Public Integrity Section has been effectively prosecuting public officials, regardless of political affiliation, who abuse their office and their obligation to the American people," Sweeney said. "Every day, in courtrooms nationwide, these prosecutors work under challenging circumstances to hold our public officials accountable for their conduct, and they will continue to do so."

The very nature of the section's mandate, to target corruption across the country, has posed recurrent challenges.

Former department attorneys, for example, cited chronic problems that have plagued the unit: Competition and confusion with partner prosecutors in U.S. attorney's offices around the country. Federal prosecutors in the District of Columbia, for instance, were consulted about the Stevens case starting in 2006 but declined to participate, thinking that the charges were shaky, according to sources familiar with the discussions. The assistant U.S. attorneys also considered overly aggressive the prosecutors' early plan, later abandoned, to get a warrant to search the lawmaker's Washington-area home, the sources said.

The government's path could have been eased had the U.S. attorney's office been part of the case, adding players who were familiar with the courthouse and the personality of the trial judge.

The Stevens case had been handled for years by Joseph Bottini and James Goeke, two career lawyers from the U.S. attorney's office in Alaska, and two attorneys from the public integrity unit, Nicholas Marsh and Edward Sullivan, whose prosecution of Alaska officials had led to charges that Stevens had failed to report gifts on his Senate ethics forms.

As the indictment loomed against Stevens last summer, authorities in the department's criminal division pondered whether to add a more magnetic courtroom presence to the team. Department officials decided to tap Brenda Morris, a feisty, sharp-tongued trial lawyer who had been serving as deputy chief of the Public Integrity Section, to put Stevens on the hot seat and to build rapport with the jury. But that required the other lawyers to spend hours schooling Morris on the nuances of the case, keeping them from tackling boxes of relevant documents, according to sources close to the lawyers.

It was to be the most high-profile prosecution of Morris' career.

Four years earlier, Morris had run into trouble in a case she handled when a federal jury in Texas acquitted San Antonio criminal defense lawyer Alan Brown, who had been charged with tax offenses. In a subsequent civil suit filed by Brown, who alleged that FBI agents had wrongfully pursued him based on a sketchy account from his disgruntled secretary, the government ultimately paid Brown $1.34 million to settle the claim.

Brown and his lawyers say that Morris ignored warnings from local federal prosecutors who cast doubt on the credibility of a critical witness, an office assistant who peddled questionable information about Brown in a bid to win a reduction in the prison sentence of her boyfriend. A judge in San Antonio had thrown out the case before it went to trial, but an appeals court revived the prosecution, which Morris led.

"She is the race car driver who blew past the red flag," said Bill Reid, a lawyer for Brown in the civil wrongful prosecution case.

But last week, current and former colleagues of Morris defended her reputation and her ethics, saying they do not think that she would intentionally run afoul of the rules.

The public integrity unit has had five chiefs in six years. The latest is William Welch, one of the six prosecutors now under investigation. He did not play a major role in the courtroom during the Stevens case but took a more active posture after the judge raised questions about sharing evidence.

Indeed, during the presidential transition period, incoming Justice Department officials heard complaints about whether career lawyers properly understood their obligations to hand over materials to criminal defendants, prompting Attorney General Eric Holder last week to call for additional training and oversight. The Stevens case, perhaps the starkest example of the troubles, brought the severity of the problem into the national spotlight.

Former prosecutors described public corruption probes as particularly tricky. Defendants are used to seizing the stage, they generally have the money to pay for top-flight defense lawyers, and they do not hesitate to pick apart the inner workings of cases or to cast aspersions on the motives of prosecutors.

Others said the Stevens case, along with the acquittal of former Puerto Rican governor Anibal Acevedo Vila last month, exposed deeper problems with a lack of supervision of the Public Integrity Section, which has experienced heavy turnover.

"In high-profile cases, particularly cases involving public officials, the vetting process has fallen down," said Thomas Green, a Washington defense lawyer who won Vila's acquittal. "I think what happens is that they get caught up in the competition and there's no experienced voice of reason who says we cannot do this, we should not do this, we must not do this. These two cases could not have happened if the vetting process was in place and operating as it should."

But Gerald McDowell, who ran the public integrity unit for a dozen years, said that supervisors typically do not "nitpick" the work of their subordinates because there is not enough time, given crushing caseloads.

In the Stevens case, signs of frustration began emerging early. At one pretrial hearing, defense lawyers hammered prosecutors with requests to produce thousands of pages of electronic evidence. Morris became flustered. "Just because he has 'U.S. Senator' before his name doesn't mean we have to drink out of a fire hose every time they call us," she said in court.

In another unusual twist, the conduct of public corruption unit lawyers was questioned by Chad Joy, an FBI agent from the Anchorage office assigned to help with the trial. In a 10-page whistleblower complaint, Joy reported seeing boxes of unprocessed evidence stacked outside Marsh's D.C. office, asserted that Marsh had misplaced a piece of evidence, and lodged more serious allegations about failure to turn over materials to the defense. The complaint became public after the trial, fueling calls by Stevens' lawyers to overturn the senator's conviction.

Among other issues, Joy chronicled internal battles among the prosecutors about whether to turn over notes and argued that lawyers had delegated to his colleague, FBI case agent Mary Beth Kepner, the task of going over interview notes and deciding what should be redacted before handing the papers to the defense team.

Current and former prosecutors said it is highly unusual to delegate that task to an FBI agent because it involves legal questions and sensitive judgment calls for which prosecutors ultimately will be held responsible.

Compared with other Justice Department lawyers, the public integrity unit generally has been stingier about turning over materials to defense lawyers, former department attorneys said, and the section lacked clear rules on the question. It was a more difficult question in the Stevens case, with much of the evidence 4,000 miles away in Alaska.

One of the key questions now for ethics investigators and Henry Schuelke, the special prosecutor appointed by the trial judge, revolves around a mid-April 2008 interview of the government's key witness, Bill Allen. Notes from that meeting in Alaska were uncovered earlier this month by the new Justice Department team examining the case, raising fresh questions about inconsistencies in Allen's trial testimony and prompting Holder to abandon the conviction.

"I always want to ensure ... that if we make mistakes that we admit them, and that we then take the appropriate action," Holder said Thursday.

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