Ex-Sen. Stevens case attorney can force testimony

Matter also being investigated by Justice Department's Office of Professional Responsibility, expected to run into fall

Posted: Thursday, July 30, 2009

ANCHORAGE - A special prosecutor in Washington was granted authority Tuesday to compel testimony from the Justice Department team that took Sen. Ted Stevens to trial. He was also authorized to subpoena the former lead FBI agent in the Alaska corruption investigation and key witness Bill Allen and his attorney.

The subpoena authority was approved by U.S. District Judge Emmet Sullivan, who presided over Stevens' trial last year. When the Stevens case fell apart over charges of prosecutorial misconduct, Sullivan appointed the special prosecutor, Henry Schuelke III, to investigate the prosecutors for criminal contempt.

The matter also is being investigated by the Justice Department's Office of Professional Responsibility, which is cooperating with Schuelke. The Justice Department investigation is expected to run at least into the fall.

The filings in Washington on Tuesday - Schuelke's two-page request and its quick approval by Sullivan - show his investigation continues to move ahead even as little has shown above the surface.

Schuelke had been directed by Sullivan to only investigate the six prosecutors. With those orders unchanged, it's most likely Schuelke is seeking the testimony of the agent, Allen and Allen's attorney as witnesses.

During the trial, Sullivan accused Allen's attorney, former U.S. Attorney Bob Bundy, of sending signals from the spectators' benches to Allen on the witness stand. Sullivan asked the U.S. attorney's office in Washington to look into the matter, not Schuelke. Bundy has denied sending any kind of message to Allen during the trial.

The agent, Mary Beth Kepner, was accused of getting too close to sources, including Allen, in a complaint made by a fellow agent after the Stevens trial. While she hasn't made any public statements, other agents have come to her defense.

Sullivan appointed Schuelke on April 7 during the same hearing in which he dismissed all charges against Stevens. Attorney General Eric Holder had asked the charges be dropped and acknowledged the truth of a long-running complaint of the judge and of Stevens' defense attorneys: that the prosecution team failed in its constitutional obligation to turn over favorable evidence in its possession.

Among the information cited by Holder was a meeting between Allen, four of the prosecutors and Kepner in which Allen couldn't recall a meeting with one of Stevens' friends that he later testified about. Allen's failed recollection should have been relayed to the defense, Holder acknowledged.

In his request for the subpoenas, Schuelke said they were a natural extension of his appointment by Sullivan. It's unclear whether the six prosecutors will agree to depositions, since their own Fifth Amendment rights protect them against self-incrimination. Most, if not all, have given statements to Justice Department investigators.

The six are William Welch, chief of the public integrity section; Brenda Morris, chief trial attorney in the Stevens case; and Nicholas Marsh, Edward Sullivan, Joseph Bottini and James Goeke.

A jury found Stevens guilty in October of lying on financial disclosure forms covering six years in office. Sullivan later dismissed the charges.

Allen, former chief executive of the oil-field services company VECO Corp., was the lead witness against Stevens. He testified to spending tens of thousands of dollars renovating and furnishing Stevens' Girdwood, Alaska, home - gifts that Stevens never reported.

Asked under oath why he never sent Stevens a bill for the work despite Stevens' e-mailed request for one, Allen testified that one of Stevens' closest friends said the e-mail was just Stevens "covering his ass." That was the conversation that Allen couldn't initially recall in the meeting with Kepner and the prosecutors.

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