![The late Sen. Ted Stevens, a powerful Washington figure, was brought low by a government that abused its power. Can government be held accountable for its abuses? [Credit: Arlington Cemetery]](https://i0.wp.com/www.dougsbriefcase.com/blog/wp-content/uploads/2013/08/Credit-Arlington-Cemetary.jpg)
The late Sen. Ted Stevens, a powerful Washington figure, was brought low by a government that abused its power. Can government be held accountable for its abuses? [Credit: Arlington Cemetery]
The consequences for Stevens were enormous. He lost that election by just 3700 votes, forfeiting a seat he had held since 1968, just a few years after Alaska gained statehood. The price for the bureaucrats whose mendacity or incompetence took him down: nothing at all. A government review panel recently cited procedural technicalities in throwing out the suspensions of two of the prosecutors.
Stevens was to have been the government’s prize catch in its “Polar Pen” initiative, launched in 2003 by the Justice Department to uncover political corruption in Alaska. Prosecutors alleged that Stevens didn’t pay the full cost of renovations that had been performed on his Alaska home. Those renovations were overseen by Bill Allen, a Stevens friend who owned the VECO construction company. The government won a seven-count indictment against Stevens, alleging that he didn’t report benefits and things of value that he’d received from VECO on his government disclosure forms, a criminal offense.
The government’s case was flawed from the beginning. Allen, its star witness, had in the past bribed an underaged prostitute named Bambi Tyree to deny under oath that he’d paid her for sex, something that might have hurt his credibility with the jury. Prosecutors falsely told Stevens’ defense team that it was “aware of no evidence to support any suggestion that Allen asked [Ms. Tyree] to make a false statement under oath,” and Allen thus was not questioned about suborning perjury during cross-examintion.
More troubling, prosecutors and FBI agents adduced evidence that Stevens did, in fact, believe that the $160,000 his wife had paid contractors was sufficient to cover the cost of the work. The prosecutors buried that evidence and then lied to a judge in open court, telling him that they were not “sitting on a treasure trove” of information that would corroborate Stevens’ claims.
Some of that evidence emerged in the months after Stevens was convicted and lost his Senate seat, prompting the Justice Department itself to request its reversal. “There was never a judgment of conviction in this case,” Judge Emmet G. Sullivan wrote in granting the request. “The jury’s verdict is being set aside and has no legal effect.”
Incensed by the government’s misconduct in withholding exculpatory evidence, Judge Sullivan went further, ordering up an investigation of government prosecutors. It took the investigator, Henry Schuelke, 525 pages to fully recount the list of government’s outrages. His report, released in March 2012, after Stevens had died in an August 2010 plane crash, found that:
“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’ defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness” [p. 1].
That key witness, Bill Allen, changed his testimony at the last minute at the urging of an FBI agent involved in the case, according to the Schuelke report. The FBI agent and prosecutors were troubled by some glaring holes in their case. For example, Rocky Williams, the foreman who supervised the renovation project and who worked directly for Allen, had repeatedly told investigators that he believed and had told Mrs. Stevens that the $160,000 she’d given him covered the entire cost of the work. So prosecutors never disclosed that information to the defense. Indeed, they sent Williams, who had been listed as a prosecution witness, home to Alaska for medical treatment on the eve of the September 2008 trial. He never testified, and died in December of that year.
But the evidence that prosecutors found most troubling were two handwritten notes that Senator Stevens had sent Bill Allen while the work was being performed in 2002. Both notes asked that Allen send Mrs. Stevens a bill for the work. “Friendship is one thing,” Stevens wrote, “but compliance with these ethics rules entirely different” [p. 17]. The notes said that he would send his friend Bob Persons to talk with Allen.
Allen never could give prosecutors a satisfactory explanation of these notes. He repeatedly denied to them that he’d ever spoken with Mr. Persons. Allen subsequently told investigators that on the eve of the trial, an FBI agent involved in the case, Mary Beth Kepner, had told him, “You better figure out or remember what you done with this … note from Ted [Stevens]. You got to figure out what you done and when did you talk to Bob Persons” [p. 26].
Allen figured it out on the plane ride from Alaska to the trial in Washington. He suddenly remembered that he had spoken with Persons, after all, and that Persons had assured him that Stevens did not want to pay to for the work, despite what he’d written in his notes.
“Don’t worry about getting a bill,” Allen testified that Persons told him. “Ted was just covering his ass.”
The testimony took Stevens’ defense team by surprise. Although the government never told them that Allen had previously claimed never to have spoken with Persons, they still thought it odd that they were hearing this story for the first time.
“When did you first tell that story?” they asked him.
‘Hell, I don’t know what day it was.” Allen replied.
The prosecutors did. And they knew that Allen was lying, the Schuelke report states.
“Mr. Joseph Bottini [one of the prosecutors] knew the testimony was false and knew that he had an obligation under the Supreme Court’s decision in Napute v. Illinois to correct that testimony there and then, but he did not” [p. 19].
Bottini went further, citing what came to be known as Allen’s “CYA testimony,” in his closing argument to jurors:
“Bob Persons did pay [Allen] a visit, came by and he told him, look, he doesn’t really want a bill. He’s just – pardon my French – covering his ass. Now the defendant says, well, Allen just made that up, that’s a lie, that never happened … If that were so, if Allen just made that up, wouldn’t the story be better about that?” [p. 20]
Allen did make it up, and though the story could have been better, it was good enough to help persuade a jury to convict Stevens and sink a long, distinguished and otherwise unblemished career in public service.
Though their misconduct ultimately was exposed and Stevens exonerated, the prosecutors avoided criminal and administrative sanctions. The judge held two of them in contempt and the Schuelke report concluded that Bottini and James Goeke “intentionally withheld and concealed significant” information [p. 28]. But Schuelke stopped short of accusing them of criminal contempt, which requires the intentional violation of a clear and unambiguous order.
The report includes an exchange in which the prosecution dissuaded the judge from issuing such an order. “We fully understand what our obligation is,” Edward Sullivan, a member of the prosecution team, told the judge, “and I don’t think we need to belabor the Court because the case law is clear on this issue…We don’t think there’s anything for the Court to do” [p. 30].
Because the judge acquiesced and didn’t enter the order, the prosecutors could not be charged with criminal contempt, Schuelke concluded.
They also slipped the noose in the Justice Department’s internal investigation. The department’s Office of Professional Responsibility found that Bottini and Goeke showed reckless professional misconduct in the case and referred the matter to the agency’s Professional Misconduct Review Unit. Kevin Ohlson, who headed that unit, assigned the investigation to Terrence Berg. Berg found that Bottini and Goeke were guilty of poor judgment, but not misconduct. Ohlson, however, overruled Berg’s finding and ordered suspensions of Goeke and Bottini, who then appealed their suspensions to the Merit Systems Protection Board. They prevailed, with an administrative law judge finding that Ohlson had violated agency procedure in overruling his subordinate.
Thus ended the saga for Stevens’ prosecutors, who successfully asserted that their behavior did not merit punishment. Bottini and Goeke continue to maintain their innocence, arguing that they tried to do the right thing but were overruled by their superiors. They claim that Schuelke’s report is biased. Both still serve as federal prosecutors. Bottini has remained in Alaska, while Goeke now works in the Yakima (WA) office. A third prosecutor who had been under investigation, Nicholas Marsh, took his own life in September 2010, a few months after being interviewed by Schuelke.
Stevens’ lead attorney, Brendan Sullivan, offered his observations on the case. “If this can happen to a United States Senator, a sitting senator, in the District of Columbia,” he said, “then it can happen anywhere to anyone.”
The case does, indeed, remind us of government’s enormous capacity to ruin careers and destroy reputations.
But it’s also a reminder that government is rarely held accountable for its abuses. It seems undeniable that the government behaved badly in its prosecution of the case, flouting well-established rules in pursuit of Stevens’ conviction. But in the aftermath, no one seems to be responsible for this injustice. Bottini and Goeke have pointed fingers at the lead prosecutor, saying that she did a poor job of coordinating the office’s efforts. The attorney in charge of assuring that exculpatory evidence was provided to Stevens’ lawyers was junior and perhaps either didn’t understand the law or lacked the heft to get his superiors to comply with it. There is even the suggestion that this is all Stevens’ fault. Had he not insisted on his right to a speedy trial, had he given the prosecutors more time (six months? a year?), perhaps they would have committed fewer errors and put on a competent case. Bad things happen to good people when government departs from its accustomed glacial pace.
The abuses, on this theory, weren’t the result of an overzealous prosecution but of the prosaic sort of bureaucratic screw-up that are endemic to government.
Perhaps that’s all true. The result is no less troubling. Years of review by an alphabet soup of government boards and commissions have produced this result: no one will be held accountable for a great injustice. Government abused its power and no one is to be sanctioned for the abuse. That is the greater injustice.