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Judge denies a vigorous mistrial bid in Stevens case

Government ordered to hand over evidence favorable to senator

Posted: Friday, October 03, 2008

WASHINGTON - A federal judge rejected a vigorous defense bid Thursday for a mistrial in the corruption case against Sen. Ted Stevens despite finding that prosecutors broke rules requiring them to turn over evidence favorable to the veteran Alaska lawmaker.

After a roller-coaster day of discord, U.S. District Judge Emmet G. Sullivan told lawyers that ending the trial after several days of testimony would be too drastic. Instead, he ordered the government to give stacks of previously undisclosed documents to the defense and called a recess until Monday.

Sullivan had suggested at a hearing before his decision that he might take the unusual step of allowing defense attorneys to amend their opening statement using the new information. "I think there's ways to deal with this short of a mistrial or short of a dismissal," he said.

But defense attorney Robert Carey refused the offer, saying the damage was done.

"The trial is broken and it can't be fixed," Carey said. "It's been played on an uneven playing field."

At the same hearing, prosecutor Brenda Morris struggled to explain why some evidence - especially FBI reports based on interviews with their star witness, wealthy businessman Bill Allen, about unreported gifts to Stevens - had either been withheld or heavily censored. The judge said the government was violating rules of evidence requiring prosecutors to share information that could help criminal defendants prove their innocence.

"It was bad judgment," said Morris, who specializes in prosecuting government corruption for the Justice Department. "It was a mistake."

"How do I have confidence that the Public Integrity Section has integrity?" the judge shot back.

"This is not something we take lightly at all," she said. "This is our word."

The government's case appeared in jeopardy earlier Thursday when Stevens' defense team persuaded the judge to suspend the trial for the day, send the jury home and consider throwing out the charges.

The defense, in hastily prepared court papers, accused the government of seeking to sabotage its case by withholding portions of the disputed FBI reports until nearly midnight on Wednesday. The FBI investigation already has sent several other Alaska state lawmakers to prison, but the dispute threatened the crown jewel of the case.

"Enough is enough," the defense lawyers wrote. "The court should dismiss the indictment. In the alternative, the court should immediately declare a mistrial. ... It is impossible at this point to have a fair trial."

The government countered in its own brief by saying other evidence that Stevens could have used to prove his state of mind "was absolutely, unquestionably and unequivocally disclosed to the defense prior to trial."

Stevens, 84, is accused of lying on Senate forms about receiving more than $250,000 in home renovations and other gifts from an oil pipeline firm, VECO Corp. The senator acknowledges that he had his old friend Allen, the VECO chief, oversee the project, but says he made it clear he wanted to pay for everything and never knew Allen was footing the bill.

The jury had been expected on Thursday to hear secretly recorded audiotapes of phone conversations between Allen and Stevens, the longest-serving Senate Republican.

Prosecutors say the tapes back up testimony earlier this week by Allen that he never billed Stevens for work by VECO employees that helped turn a tiny ski cabin into a two-story home with a garage, sauna, wine cellar and wraparound decks. Allen told the jury he didn't feel right about billing his fishing and drinking buddy.

Another defense attorney, Brendan Sullivan, argued Thursday that the newly disclosed FBI reports showed that Allen believed Stevens was willing to pay for the renovations - a point he would have made in his opening statement if he had known.

One of the documents, dated February 2007, stated, "The source did not invoice STEVENS for the work ... however, the source believes that STEVENS would have paid an invoice if he had received one." Lawyers say the source was Allen.

Thursday's court confrontation marked the second major blowup over a prosecution misstep. Earlier in the week, the judge rebuked prosecutors for sending another witness - the foreman of the renovation project - back to Alaska without notifying Stevens' lawyers.

Stevens, a patriarch of Alaska politics for generations, has languished in the courtroom as a Democratic opponent back home mounts a strong challenge to the seat the senator has held for 40 years. On Wednesday night, he ventured to Capitol Hill to vote in favor of the rescue plan for the nation's financial system.



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