The judge in the trial of former Alaska Sen. Ted Stevens granted the government's motion Tuesday to set aside the guilty verdict and drop all charges. Judge Emmett Sullivan was expected to do this, but he also went further — appointing a special prosecutor to investigate charges of misconduct against the prosecution lawyers who brought the case against Stevens.
As Stevens left the courthouse Tuesday after a nearly two-hour hearing, he was ebullient: "Tell them all I'm going to enjoy this wonderful day, that's all," he said.
Inside the courtroom, he shook hands with the new team of prosecutors that was assigned to the case in February. Within five weeks, this team discovered and turned over to defense lawyers notes taken by the original trial team that contained exculpatory information — notes that previously were withheld from Stevens' defense team. Stevens told the judge the conduct of the original prosecutors had nearly destroyed his faith in the criminal justice system, and the conduct of the new team had restored it.
Sullivan minced no words. "In 25 years on the bench," he said, "I've never seen anything approach the mishandling and misconduct in this case."
Again and again, he said, the government was caught making false representations and failing to meet what it knew was its obligation to turn over information that was potentially favorable to the defense. The fair administration of justice, he said, should not depend on the luck of the draw — it should not depend on who represents a defendant or whether an FBI agent blows the whistle or whether there is a new administration or a new attorney general or a new trial team.
"Whether you are a public official or a private citizen or a Guantanamo detainee," he said, "the government has an obligation to produce exculpatory evidence so that justice can be done.
"The events of this case are too numerous and serious to leave to an internal inquiry by the Justice Department," Sullivan said. He noted that the Justice Department Office of Professional Responsibility has supposedly been investigating the prosecutors' conduct for six months, and "the silence has been deafening."
Accordingly, said Sullivan, he was invoking a federal law allowing him to undertake contempt proceedings against the entire first team of prosecutors. "I have the highest regard for Attorney General Eric Holder," said the judge, but because the interests of justice are best served by taking this investigation out of the Justice Department, Sullivan said he had appointed a private attorney — an experienced former prosecutor and military judge named Henry Schuelke to conduct the inquiry. "I have not prejudged this case," said Sullivan, "and I certainly hope the record will find no intentional obstruction of justice by prosecutors."
So what happens next? Sullivan ordered the Justice Department to make available to the new special prosecutor all the department's files and witnesses in the Stevens case.
"It's going to be a pretty thorough investigation into whether the prosecutors met their obligations, which they apparently didn't, to turn over evidence," says George Washington University law professor and former prosecutor Stephen Saltzburg. "But probably more importantly than whether they did is, to the extent they didn't, how bad was the conduct? And did it appear to be deliberate or negligent? And that, I think, will be meaningful to the judge as he considers what he's going to do."
Not every member of the original prosecution team was involved in the case from the beginning. Indeed, the lead prosecutor, Brenda Morris, was assigned to the case only weeks before the trial began. And as even Stevens' defense lawyer observed Tuesday, Morris may not have known about earlier interviews with the prosecution's star witness, Bill Allen — interviews in which Allen failed to provide the lethal testimony that he did at trial; interviews that were not revealed to the defense until two weeks ago.
But as Columbia Law School professor and former prosecutor Daniel Richman notes, witnesses don't always say exactly the same thing.
"One of the things we all know about conversations with witnesses is that different details come out at different times, and the failure to have said something isn't necessarily a sign of later fabrication. Could it be? Sure," Richman says.
Richman observes that in 2006, when the Justice Department actually prosecuted one of its own for concealing evidence in a Detroit terrorism case, the prosecutor was acquitted.
Even if this investigation does not lead to criminal charges, though, the prosecutors could be fined, disbarred, fired and, at the very minimum, will have to hire lawyers and spend tens of thousands of dollars to defend themselves.