LITTLE ROCK — As his trial on corruption charges approached in the fall of 2008, Ted Stevens railed to me in an email: “What did I do, Michael? What did I do?” The wounded rage smoldering in that rhetorical question to a reporter reflected his belief that he had done nothing wrong. He continued to insist on his innocence after a Washington jury found him guilty of lying on financial-disclosure forms.
Stevens’ conviction was dismissed in 2009 after the Justice Department’s admission that government lawyers failed to turn over evidence the Stevens defense should have received. U.S. District Court Judge Emmet Sullivan, who presided over Stevens’ trial, soon authorized an investigation of the prosecutors’ conduct, a move as rare as the trial of a U.S. senator.
Last week, the judge’s investigator, Special Counsel Henry F. Schuelke, issued his findings, which Stevens will never read. He died in a 2010 airplane accident.
We don’t know what a fair trial would have produced. But now this is a story of government prosecutors—some in Anchorage, some in Washington—who failed to live up to their professional responsibilities and thus failed to give Stevens a fair trial. Schuelke blisteringly refers to their “astonishing misstatements” that concealed the existence of documents and information in their possession.
The government attorneys most involved in the case held positions of exceptional responsibility and trust. Brenda Morris, the lead attorney at trial, had 20 years of experience as she was promoted to increasingly influential positions. Three younger attorneys—Nicholas Marsh (who later killed himself), James Goeke and Edward Sullivan—clerked for federal judges after law school and appeared to be on their way to noteworthy public-service careers. Joseph Bottini had been a member of the U.S. attorney’s office in Alaska since 1985 and was well-known and wellrespected throughout the state’s legal community. Several Anchorage lawyers told me before Schuelke’s report came out that they refused to believe Bottini was involved in misconduct.
But he was. And so were the others.
If the government attorneys were guilty of misconduct, they also were guilty of badly misreading Stevens.
He certainly was guilty of bad judgment—making campaign contributors his friends because of what they could do for his re-election. But for 40 years he lived modestly, traveled modestly—I encountered him sleeping in coach on night flights—and made himself available to Alaskans of every income group, every racial group and of all political persuasions. He thought this was his job.
Stevens may have been arrogant, hot-tempered and in love with congressional earmarks, but he wasn’t a calculating deceiver. When Stevens insisted that he had asked for a bill for the many improvements a contractor made to his Alaska home because he intended to pay for them—and not paying for them was fundamental to his indictment—prosecutor Morris told colleagues that he was showing “gator arms,” like the friend at lunch “whose arms aren’t quite long enough to reach the bill. They make a feigned pass.”
This was not Ted Stevens at all, and did not belong in any theory of his alleged lawbreaking.
In Alaska, there are a few attorneys who refuse to take federal criminal cases. They believe the deck is stacked against the defense and that federal prosecutors cut corners, whether they are in Anchorage or in Washington. These jaded members of the bar will no doubt say, “I told you so” after reading Schuelke’s report.
Maybe so. My conclusion is that federal prosecutors need far better supervision of what they do, not just desultory acceptance by their supervisors or the court of what they say they do. The Stevens case is a supervisory failure from top to bottom that terminated Stevens’ political career and significantly damaged the reputation of the Justice Department.
After the charges against him were dismissed, Stevens said he would work to change federal laws and practices to make them fairer to the accused. Stevens was a former federal prosecutor, and he understood that prosecutors with vast power, like politicians with vast power, are subject to temptation.
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Michael Carey is the former editorial page editor of the Anchorage Daily News and the host of a weekly public affairs show for Alaska Public Television.
Editorial, Pages 12 on 03/22/2012