Alaska editorial: Prosecution's shabby conduct undermines public confidence

Posted: Monday, October 20, 2008

Alaskans wanted, and they deserved, a fair and impartial airing of the criminal charges against Sen. Ted Stevens. If the federal government proved, beyond a reasonable doubt, the serious allegations against Alaska's senior senator, even his most ardent political supporters would have had to accept the conclusions from our system of justice.

On the other hand, were the prosecutors to present their best evidence, clearly and forcefully, and then see the jury acquit the senator, even his most bitter critics would have had to recognize that Sen. Stevens committed no crime.

But the prosecution has done at best an inept job and at worst has tried to cheat its way to a conviction. We may have already reached the point at which, no matter what the jury says, many Alaskans will reject the verdict and continue to argue Stevens' guilt or innocence.

The judge has repeatedly rebuked the prosecution for improper conduct. As a result, we fear we are watching the legitimacy of the verdict erode, day by day. No matter how the trial turns out, it will be hard for Alaskans to have confidence in the outcome.

If Sen. Stevens is acquitted, his critics will say it was only because the prosecution botched the case. If he is convicted, his defenders will continue to raise legitimate questions about the integrity of the case presented against him.

The prosecution has repeatedly withheld or delayed turning over evidence that it was required to share with Sen. Stevens' defense.

Perhaps the most damning incident involved statements by Bill Allen that undercut the prosecution's case. At some point in the investigation, the Veco boss said he thought Stevens would have paid bills for work on his Girdwood house if Veco had sent them. That's exactly the claim Sen. Stevens makes in his defense. (Other evidence suggests otherwise, but no one disputes that Stevens' defense team was entitled to the information.)

As the penalty for a different prosecution failure, the judge excluded all evidence relating to a key charge - that Bill Allen gave Stevens a sweetheart deal on a new Land Rover for the senator's daughter. The prosecution's blundering essentially gives Sen. Stevens a pass on that allegation.

In another incident, the prosecution presented Veco records it knew to be false. The records showed one Veco employee reported working on Sen. Stevens house, when he was actually in the Lower 48. (The prosecution says the same Veco records omitted significant amounts of other people's work on Sen. Stevens' house, but the judge was not mollified.)

Earlier in the trial, the prosecution suddenly decided not to call a planned witness and then sent him home without notifying the defense. (They said he was seriously ill, but that didn't justify not communicating with the defense.)

All in all, the prosecution's case has been the courtroom equivalent of a Keystone Cops performance. And on a matter of huge importance to Alaskans, not to mention Sen. Stevens.

Four times Sen. Stevens' lawyers have moved for a mistrial or dismissal of the charges. Four times Judge Emmet Sullivan has refused, keeping the case alive despite the prosecution's shabby conduct.

Declaring a mistrial would indeed be a drastic measure. All the time invested by the current jury and witnesses would be thrown away. A new jury would have to be picked and sit for days listening to a new version of the case. Witnesses would be inconvenienced again, coming back to repeat their testimony.

A responsible judge looks for sanctions short of a mistrial that will cure any harm inflicted on the defendant.

But allowing the case against Sen. Stevens to continue has already raised the risk that any guilty verdict will be overturned on appeal. It may also have irretrievably undermined public confidence in whatever the jury concludes about Sen. Stevens' guilt or innocence.

If that turns out to be the case, that will be a great disservice to all Alaskans.

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