Probe Finds Stevens Prosecutors Intentionally Hid Evidence
By David Baumann | November 21, 2011 12:03 pm

A court-appointed investigator says that prosecutors in the criminal case against the late Sen. Ted Stevens (R-Alaska) willfully and intentionally concealed evidence that should have been turned over to defense attorneys.

In his report, Henry F. Schuelke said there is insufficient evidence to prosecute any of the attorneys for criminal contempt of court. Schuelke’s report has not been made public, but the information is contained in a Monday court order from U.S. District Judge Emmet G. Sullivan.

“The prosecutorial misconduct that permeated the proceedings before this Court to a degree and extent that this Court had not seen in twenty-five years on the bench,” Sullivan said in the ruling, which sealed the investigator’s report until all sides in the Stevens case have the opportunity to review it. However, Sullivan also made it clear that he intends to release as much of the report as possible.

In his order, Sullivan made it clear that Justice Department officials had completely cooperated with the investigation. A DOJ spokeswoman said Monday that the department is reviewing Sullivan’s order.

Stevens, the longest-serving Republican in Senate history, was convicted in 2008 of lying to conceal gifts from an Alaska oil executive and other friends.  He lost his Senate seat in that fall’s election. But in 2009, as problems in the handling of the case continued to crop up, Attorney General Eric Holder had the charges dismissed. Stevens died in a plane crash in 2010.

The cases collapsed when it was discovered that prosecutors had withheld crucial evidence from defense attorneys.  That same revelation has plagued other prosecutions in the Alaska corruption probe.

Prosecutors involved in the case were the subject of multiple investigations by the DOJ Criminal Division, Schuelke, and the department’s Office of Professional Responsibility. Sullivan also held former Public Integrity Section officials William Welch II and Brenda K. Morris in contempt for not handing over documents to Stevens’ defense. Sullivan removed them from under contempt, but he didn’t vacate his contempt finding. Holder recently told the Senate Judiciary Committee that the OPR probe is almost finished and that he hoped to make public as much as possible. Following the Stevens case, the attorneys who handled the prosecution were transferred to other DOJ sections.

In Monday’s order, Judge Sullivan said that Schuelke has filed a 500-page report with him. He said the report concluded that the investigation of Stevens and the prosecution were “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

He also said that Schuelke  and colleague William Shields “found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed – at least to the Court and to the public – but for their exhaustive investigation.” (Schuelke is a former Assistant U.S. Attorney for the District of Columbia, and Shields is a former assistant district attorney in Manhattan. Both are with the firm Janis, Schuelke & Wechsler.)

Sullivan said in his ruling that Schuelke recommended no criminal contempt charges be filed against prosecutors because the attorneys did not violate a direct order from the judge.  Instead, he said, he relied on the prosecutors’ repeated assertions that they were complying with their obligations and were working in good faith.

In recent months, prosecutors in the Stevens case have reemerged in sensitive cases.

Edward Sullivan was one of the attorneys handling the sentencing of former Republican Senate aide Trevor Blackann; he also worked on a bribery case in Utah.

Welch and Morris also are back handling sensitive cases. Welch,  who was chief of the Public Integrity Section from 2007 to 2009, was listed as one of the attorneys handling the indictment of Thomas Andrews Drake, a former National Security Agency official accused of providing classified information to a newspaper reporter. Drake pleaded guilty to a misdemeanor after a federal judge denied a request by the federal government to keep secret classified documents–a setback for prosecutors’ attempts to pursue leakers.

Morris was one of the attorneys who recently handled a high-profile public corruption case in Alabama. Prosecutors were criticized for their handling of that case, after former state officials and a casino owner were acquitted on several charges and there was a hung jury on others.

Brian Heberlig, who represented Edward Sullivan in the DOJ investigations, told NPR that Sullivan had been cleared by ethics authorities.

“The Department of Justice’s Office of Professional Responsibility completely exonerated Mr. Sullivan,” Heberlig said. “He should not have been included in the investigation of the Stevens matter in the first place, as he was not on the trial team, had no decision-making authority, and exercised sound judgment in his supporting role. Now that he has been vindicated, Mr. Sullivan has put this matter behind him and is rightfully back prosecuting cases for the Department’s Public Integrity Section.”

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