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Judge Orders Report Faulting Stevens Prosecutors to Be Made Public
By David Stout | February 8, 2022 12:18 pm

The 500-page report of an independent investigator who found flagrant misconduct by prosecutors in the case of Sen. Ted Stevens will be released to the public in its entirety, a federal judge ruled on Wednesday, declaring that it would be intolerable insult to the Constitution to keep the findings under wraps.

Judge Emmet G. Sullivan of U.S. District Court for the District of Columbia, who presided over the 2008 trial of the Alaska senator, the longest-serving Republican in history of the Senate and once one of the chamber’s most powerful figures, ordered that the report by Henry F. Schuelke III be made public, without redactions, on March 15.  The prosecutors who are the subjects of the report have until March 8 to file comments or objections to the findings, after previously being given a January deadline to do so.

Schuelke concluded last November that prosecutors intentionally concealed evidence that should have been turned over to defense lawyers, as Main Justice reported.  Stevens was convicted of failing to disclose gifts and favors from an Alaska oil services CEO. The senator was defeated in the 2008 election, months before Attorney General Eric Holder ordered the case dismissed because of the prosecutors’ misconduct. Stevens died in a plane crash in 2010.

Sullivan’s 55-page ruling was no surprise, given his previous signals of his desire to release as much of the Schuelke report as possible and the judge’s declarations that he had never seen such prosecutorial misconduct in his quarter-century on the bench. But the ruling was striking nonetheless for its stinging tone.

“To deny the public access to Mr. Schuelke’s report under the circumstances of this case would be an affront to the First Amendment and a blow to the fair administration of justice,” Sullivan wrote.

He emphasized through italics that Stevens was a public official convicted in a very public trial of failing to comply with public disclosure requirements. Moreover, he said, the public bore the considerable costs of the case, which was accompanied by repeated  public boasting by Department of Justice officials.

How, then, the judge asked, can prosecutors in the case now argue that the investigator’s finding not be made public?

To give the public only some of the findings “would be the equivalent of giving a reader only every other chapter of a complicated book, distorting the story and making it impossible for the reader to put in context the information provided,” Sullivan wrote. “The First Amendment, the public, and our system of justice demand more.”

“Access to Mr. Schuelke’s report will play a significant positive role in informing the public regarding criminal trials in general and the Stevens case in particular,” Sullivan said — and may safeguard against future prosecutorial misconduct.

“The Stevens case has come not only to symbolize the dangers of an overzealous prosecution and the risks inherent when the government does not abide by its discovery obligations, but it has also been credited with changing the way other courts, prosecutors, and defense counsel approach discovery in criminal cases,” Sullivan said, as the Blog of Legal Times noted in its account.

As the BLT noted, “Sullivan dismissed as ’speculative’ the argument that the Stevens attorneys will suffer professional damage from the release of the report. The judge said the Justice Department’s Office of Professional Responsibility is already aware of the information in the report.”

Sullivan’s ruling came a day after The New York Times called for release of the report about “the Stevens debacle.” That is a subjective assessment, of course, but as has been noted repeatedly, the case has cost the taxpayers dearly (see Main Justice’s report) and has been accompanied by the disintegration of several spinoff cases. In one of the saddest occurrences of all, a prosecutor associated with the senator’s trial took his own life.


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"It's about learning the vital lessons from the Justice Department's failure of [Ted Stevens'] prosecution and making our criminal justice system work the way our Constitution envisioned that it would." -- Sen. Lisa Murkowski, announcing her new piece of legislation.