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<\/a>The late Sen. Ted Stevens, a pow\u00ader\u00adful Wash\u00ading\u00adton fig\u00adure, was brought low by a gov\u00adern\u00adment that abused its pow\u00ader. Can gov\u00adern\u00adment be held account\u00adable for its abus\u00ades? [Cred\u00adit: Arling\u00adton Cemetery]<\/p><\/div>The late Sen\u00ada\u00adtor Ted Stevens (R\u2011AK<\/span>) was once a pow\u00ader\u00adful man. Unbowed before col\u00adleagues and Pres\u00adi\u00addents, Stevens\u2019 pow\u00ader proved no match for gov\u00adern\u00adment lawyers and FBI<\/span> agents, who, accord\u00ading to a lengthy court-ordered report, lied, hid evi\u00addence and delib\u00ader\u00adate\u00adly deceived a judge and jury to obtain a guilty ver\u00addict against the Alas\u00adka Sen\u00ada\u00adtor just weeks before the 2008 election.\n The con\u00adse\u00adquences for Stevens were enor\u00admous. He lost that elec\u00adtion by just 3700 votes<\/a>,<\/span> for\u00adfeit\u00ading a seat he had held since 1968<\/a>,<\/span> just a few years after Alas\u00adka gained state\u00adhood. The price for the bureau\u00adcrats whose men\u00addac\u00adi\u00adty or incom\u00adpe\u00adtence took him down: noth\u00ading at all. A gov\u00adern\u00adment review pan\u00adel recent\u00adly cit\u00aded pro\u00adce\u00addur\u00adal tech\u00adni\u00adcal\u00adi\u00adties in throw\u00ading out the sus\u00adpen\u00adsions <\/a>of two of the prosecutors.<\/p>\n Stevens was to have been the government\u2019s prize catch in its \u201cPolar Pen\u201d ini\u00adtia\u00adtive, launched in 2003 by the Jus\u00adtice Depart\u00adment to uncov\u00ader polit\u00adi\u00adcal cor\u00adrup\u00adtion in Alas\u00adka. Pros\u00ade\u00adcu\u00adtors alleged that Stevens didn\u2019t pay the full cost of ren\u00ado\u00adva\u00adtions that had been per\u00adformed on his Alas\u00adka home. Those ren\u00ado\u00adva\u00adtions were over\u00adseen by Bill Allen, a Stevens friend who owned the VECO<\/span> con\u00adstruc\u00adtion com\u00adpa\u00adny. The gov\u00adern\u00adment won a sev\u00aden-count indict\u00adment against Stevens, alleg\u00ading that he didn\u2019t report ben\u00ade\u00adfits and things of val\u00adue that he\u2019d received from VECO<\/span> on his gov\u00adern\u00adment dis\u00adclo\u00adsure forms, a crim\u00adi\u00adnal offense.<\/p>\n The government\u2019s case was flawed from the begin\u00adning. Allen, its star wit\u00adness, had in the past bribed an under\u00adaged pros\u00adti\u00adtute named Bam\u00adbi Tyree to deny under oath that he\u2019d paid her for sex, some\u00adthing that might have hurt his cred\u00adi\u00adbil\u00adi\u00adty with the jury. Pros\u00ade\u00adcu\u00adtors false\u00adly told Stevens\u2019 defense team that it was \u201caware of no evi\u00addence <\/a>to sup\u00adport any sug\u00adges\u00adtion that Allen asked [Ms. Tyree] to make a false state\u00adment under oath,\u201d and Allen thus was not ques\u00adtioned about sub\u00adorn\u00ading per\u00adjury dur\u00ading cross-examintion.<\/p>\n More trou\u00adbling, pros\u00ade\u00adcu\u00adtors and FBI<\/span> agents adduced evi\u00addence that Stevens did, in fact, believe that the $160,000 his wife had paid con\u00adtrac\u00adtors was suf\u00adfi\u00adcient to cov\u00ader the cost of the work. The pros\u00ade\u00adcu\u00adtors buried that evi\u00addence and then lied to a judge in open court, telling him that they were not \u201csit\u00adting on a trea\u00adsure trove<\/a>\u201d of infor\u00adma\u00adtion that would cor\u00adrob\u00ado\u00adrate Stevens\u2019 claims.<\/p>\n Some of that evi\u00addence emerged in the months after Stevens was con\u00advict\u00aded and lost his Sen\u00adate seat, prompt\u00ading the Jus\u00adtice Depart\u00adment itself to request its rever\u00adsal. \u201cThere was nev\u00ader a judg\u00adment of con\u00advic\u00adtion in this case,\u201d Judge Emmet G. Sul\u00adli\u00advan <\/a>wrote in grant\u00adi\u00adng the request. \u201cThe jury\u2019s ver\u00addict is being set aside and has no legal effect.\u201d<\/p>\n Incensed by the government\u2019s mis\u00adcon\u00adduct in with\u00adhold\u00ading excul\u00adpa\u00adto\u00adry evi\u00addence, Judge Sul\u00adli\u00advan went fur\u00adther, order\u00ading up an inves\u00adti\u00adga\u00adtion of gov\u00adern\u00adment pros\u00ade\u00adcu\u00adtors. It took the inves\u00adti\u00adga\u00adtor, Hen\u00adry Schuelke, 525 pages to ful\u00adly recount the list of government\u2019s out\u00adrages. His report, released in March 2012, after Stevens had died in an August 2010 plane crash, found that:<\/p>\n \u201c<\/span>The inves\u00adti\u00adga\u00adtion and pros\u00ade\u00adcu\u00adtion of U.S. Sen\u00ada\u00adtor Ted Stevens were per\u00adme\u00adat\u00aded by the sys\u00adtem\u00adat\u00adic con\u00adceal\u00adment of sig\u00adnif\u00adi\u00adcant excul\u00adpa\u00adto\u00adry evi\u00addence which would have inde\u00adpen\u00addent\u00adly cor\u00adrob\u00ado\u00adrat\u00aded Sen\u00ada\u00adtor Stevens\u2019 defense and his tes\u00adti\u00admo\u00adny, and seri\u00adous\u00adly dam\u00adaged the tes\u00adti\u00admo\u00adny and cred\u00adi\u00adbil\u00adi\u00adty of the government\u2019s key wit\u00adness\u201d [p. 1<\/a>].<\/p><\/blockquote>\n That key wit\u00adness, Bill Allen, changed his tes\u00adti\u00admo\u00adny at the last minute at the urg\u00ading of an FBI<\/span> agent involved in the case, accord\u00ading to the Schuelke report. The FBI<\/span> agent and pros\u00ade\u00adcu\u00adtors were trou\u00adbled by some glar\u00ading holes in their case. For exam\u00adple, Rocky Williams, the fore\u00adman who super\u00advised the ren\u00ado\u00adva\u00adtion project and who worked direct\u00adly for Allen, had repeat\u00aded\u00adly told inves\u00adti\u00adga\u00adtors that he believed and had told Mrs. Stevens that the $160,000 she\u2019d giv\u00aden him cov\u00adered the entire cost of the work. So pros\u00ade\u00adcu\u00adtors nev\u00ader dis\u00adclosed that infor\u00adma\u00adtion to the defense. Indeed, they sent Williams, who had been list\u00aded as a pros\u00ade\u00adcu\u00adtion wit\u00adness, home to Alas\u00adka for med\u00adical treat\u00adment on the eve of the Sep\u00adtem\u00adber 2008 tri\u00adal. He nev\u00ader tes\u00adti\u00adfied, and died in Decem\u00adber of that year.<\/p>\n But the evi\u00addence that pros\u00ade\u00adcu\u00adtors found most trou\u00adbling were two hand\u00adwrit\u00adten notes that Sen\u00ada\u00adtor Stevens had sent Bill Allen while the work was being per\u00adformed in 2002. Both notes asked that Allen send Mrs. Stevens a bill for the work. \u201cFriend\u00adship is one thing,\u201d Stevens wrote, \u201cbut com\u00adpli\u00adance with these ethics rules entire\u00adly dif\u00adfer\u00adent\u201d [p. 17<\/a>]. The notes said that he would send his friend Bob Per\u00adsons to talk with Allen.<\/p>\n Allen nev\u00ader could give pros\u00ade\u00adcu\u00adtors a sat\u00adis\u00adfac\u00adto\u00adry expla\u00adna\u00adtion of these notes. He repeat\u00aded\u00adly denied to them that he\u2019d ever spo\u00adken with Mr. Per\u00adsons. Allen sub\u00adse\u00adquent\u00adly told inves\u00adti\u00adga\u00adtors that on the eve of the tri\u00adal, an FBI<\/span> agent involved in the case, Mary Beth Kep\u00adn\u00ader, had told him, \u201cYou bet\u00adter fig\u00adure out or remem\u00adber what you done with this \u2026 note from Ted [Stevens]. You got to fig\u00adure out what you done and when did you talk to Bob Per\u00adsons\u201d [p. 26<\/a>].<\/p>\n Allen fig\u00adured it out on the plane ride from Alas\u00adka to the tri\u00adal in Wash\u00ading\u00adton. He sud\u00adden\u00adly remem\u00adbered that he had spo\u00adken with Per\u00adsons, after all, and that Per\u00adsons had assured him that Stevens did not want to pay to for the work, despite what he\u2019d writ\u00adten in his notes.<\/p>\n \u201c<\/span>Don\u2019t wor\u00adry about get\u00adting a bill,\u201d Allen tes\u00adti\u00adfied that Per\u00adsons told him. \u201cTed was just cov\u00ader\u00ading his ass.\u201d<\/p>\n The tes\u00adti\u00admo\u00adny took Stevens\u2019 defense team by sur\u00adprise. Although the gov\u00adern\u00adment nev\u00ader told them that Allen had pre\u00advi\u00adous\u00adly claimed nev\u00ader to have spo\u00adken with Per\u00adsons, they still thought it odd that they were hear\u00ading this sto\u00adry for the first time.<\/p>\n \u201c<\/span>When did you first tell that sto\u00adry?\u201d they asked him.<\/p>\n \u2018<\/span>Hell, I don\u2019t know what day it was.\u201d Allen replied.<\/p>\n The pros\u00ade\u00adcu\u00adtors did. And they knew that Allen was lying, the Schuelke report states.<\/p>\n \u201c<\/span>Mr. Joseph Bot\u00adti\u00adni [one of the pros\u00ade\u00adcu\u00adtors] knew the tes\u00adti\u00admo\u00adny was false and knew that he had an oblig\u00ada\u00adtion under the Supreme Court\u2019s deci\u00adsion in Napute v. Illi\u00adnois to cor\u00adrect that tes\u00adti\u00admo\u00adny there and then, but he did not\u201d [p. 19<\/a>].<\/p><\/blockquote>\n Bot\u00adti\u00adni went fur\u00adther, cit\u00ading what came to be known as Allen\u2019s \u201cCYA<\/span> tes\u00adti\u00admo\u00adny,\u201d in his clos\u00ading argu\u00adment to jurors:<\/p>\n \u201c<\/span>Bob Per\u00adsons did pay [Allen] a vis\u00adit, came by and he told him, look, he doesn\u2019t real\u00adly want a bill. He\u2019s just \u2013 par\u00addon my French \u2013 cov\u00ader\u00ading his ass. Now the defen\u00addant says, well, Allen just made that up, that\u2019s a lie, that nev\u00ader hap\u00adpened \u2026 If that were so, if Allen just made that up, wouldn\u2019t the sto\u00adry be bet\u00adter about that?\u201d [p. 20<\/a>]<\/p><\/blockquote>\n Allen did make it up, and though the sto\u00adry could have been bet\u00adter, it was good enough to help per\u00adsuade a jury to con\u00advict Stevens and sink a long, dis\u00adtin\u00adguished and oth\u00ader\u00adwise unblem\u00adished career in pub\u00adlic service.<\/p>\n Though their mis\u00adcon\u00adduct ulti\u00admate\u00adly was exposed and Stevens exon\u00ader\u00adat\u00aded, the pros\u00ade\u00adcu\u00adtors avoid\u00aded crim\u00adi\u00adnal and admin\u00adis\u00adtra\u00adtive sanc\u00adtions. The judge held two of them in con\u00adtempt and the Schuelke report con\u00adclud\u00aded that Bot\u00adti\u00adni and James Goeke \u201cinten\u00adtion\u00adal\u00adly with\u00adheld and con\u00adcealed sig\u00adnif\u00adi\u00adcant\u201d infor\u00adma\u00adtion [p. 28<\/a>]. But Schuelke stopped short of accus\u00ading them of crim\u00adi\u00adnal <\/i>con\u00adtempt, which requires the inten\u00adtion\u00adal vio\u00adla\u00adtion of a clear and unam\u00adbigu\u00adous order.<\/p>\n The report includes an exchange in which the pros\u00ade\u00adcu\u00adtion dis\u00adsuad\u00aded the judge from issu\u00ading such an order. \u201cWe ful\u00adly under\u00adstand what our oblig\u00ada\u00adtion is,\u201d Edward Sul\u00adli\u00advan, a mem\u00adber of the pros\u00ade\u00adcu\u00adtion team, told the judge, \u201cand I don\u2019t think we need to bela\u00adbor the Court because the case law is clear on this issue\u2026We don\u2019t think there\u2019s any\u00adthing for the Court to do\u201d [p. 30<\/a>].<\/p>\n Because the judge acqui\u00adesced and didn\u2019t enter the order, the pros\u00ade\u00adcu\u00adtors could not be charged with crim\u00adi\u00adnal con\u00adtempt, Schuelke concluded.<\/p>\n They also slipped the noose in the Jus\u00adtice Department\u2019s inter\u00adnal inves\u00adti\u00adga\u00adtion. The depart\u00admen\u00adt\u2019s Office of Pro\u00adfes\u00adsion\u00adal Respon\u00adsi\u00adbil\u00adi\u00adty found that Bot\u00adti\u00adni and Goeke showed reck\u00adless pro\u00adfes\u00adsion\u00adal mis\u00adcon\u00adduct in the case and referred the mat\u00adter to the agency\u2019s Pro\u00adfes\u00adsion\u00adal Mis\u00adcon\u00adduct Review Unit. Kevin Ohlson, who head\u00aded that unit, assigned the inves\u00adti\u00adga\u00adtion to Ter\u00adrence Berg. Berg found that Bot\u00adti\u00adni and Goeke were guilty of poor judg\u00adment, but not mis\u00adcon\u00adduct. Ohlson, how\u00adev\u00ader, over\u00adruled Berg\u2019s find\u00ading and ordered sus\u00adpen\u00adsions of Goeke and Bot\u00adti\u00adni, who then appealed their sus\u00adpen\u00adsions to the Mer\u00adit Sys\u00adtems Pro\u00adtec\u00adtion Board. They pre\u00advailed, with an admin\u00adis\u00adtra\u00adtive law judge find\u00ading that Ohlson had vio\u00adlat\u00aded agency pro\u00adce\u00addure <\/a>in over\u00adrul\u00ading his subordinate.<\/p>\n Thus end\u00aded the saga for Stevens\u2019 pros\u00ade\u00adcu\u00adtors, who suc\u00adcess\u00adful\u00adly assert\u00aded that their behav\u00adior did not mer\u00adit pun\u00adish\u00adment. Bot\u00adti\u00adni and Goeke con\u00adtin\u00adue to main\u00adtain their inno\u00adcence, argu\u00ading that they tried to do the right thing but were over\u00adruled by their supe\u00adri\u00adors. They claim that Schuelke\u2019s report is biased. Both still serve as fed\u00ader\u00adal pros\u00ade\u00adcu\u00adtors<\/a>. Bot\u00adti\u00adni has remained in Alas\u00adka, while Goeke now works in the Yaki\u00adma (WA<\/span>) office. A third pros\u00ade\u00adcu\u00adtor who had been under inves\u00adti\u00adga\u00adtion, Nicholas Marsh, took his own life in Sep\u00adtem\u00adber 2010, a few months after being inter\u00adviewed by Schuelke.<\/p>\n Stevens\u2019 lead attor\u00adney, Bren\u00addan Sul\u00adli\u00advan, offered his obser\u00adva\u00adtions on the case. \u201cIf this can hap\u00adpen to a Unit\u00aded States Sen\u00ada\u00adtor, a sit\u00adting sen\u00ada\u00adtor, in the Dis\u00adtrict of Colum\u00adbia,\u201d he said, \u201cthen it can hap\u00adpen any\u00adwhere to anyone.\u201d<\/p>\n The case does, indeed, remind us of gov\u00adern\u00admen\u00adt\u2019s enor\u00admous capac\u00adi\u00adty to ruin careers and destroy reputations.<\/p>\n But it\u2019s also a reminder that gov\u00adern\u00adment is rarely held account\u00adable for its abus\u00ades. It seems unde\u00adni\u00adable that the gov\u00adern\u00adment behaved bad\u00adly in its pros\u00ade\u00adcu\u00adtion of the case, flout\u00ading well-estab\u00adlished rules in pur\u00adsuit of Stevens\u2019 con\u00advic\u00adtion. But in the after\u00admath, no one seems to be respon\u00adsi\u00adble for this injus\u00adtice. Bot\u00adti\u00adni and Goeke have point\u00aded fin\u00adgers at the lead pros\u00ade\u00adcu\u00adtor, say\u00ading that she did a poor job of coor\u00addi\u00adnat\u00ading the office\u2019s efforts. The attor\u00adney in charge of assur\u00ading that excul\u00adpa\u00adto\u00adry evi\u00addence was pro\u00advid\u00aded to Stevens\u2019 lawyers was junior and per\u00adhaps either did\u00adn\u2019t under\u00adstand the law or lacked the heft to get his supe\u00adri\u00adors to com\u00adply with it. There is even the sug\u00adges\u00adtion that this is all Stevens\u2019 fault. Had he not insist\u00aded on his right to a speedy tri\u00adal, had he giv\u00aden the pros\u00ade\u00adcu\u00adtors more time (six months? a year?), per\u00adhaps they would have com\u00admit\u00adted few\u00ader errors and put on a com\u00adpe\u00adtent case. Bad things hap\u00adpen to good peo\u00adple when gov\u00adern\u00adment departs from its accus\u00adtomed glacial pace.<\/p>\n The abus\u00ades, on this the\u00ado\u00adry, weren\u2019t the result of an overzeal\u00adous pros\u00ade\u00adcu\u00adtion but of the pro\u00adsa\u00adic sort of bureau\u00adcrat\u00adic screw-up that are endem\u00adic to government.<\/p>\n Per\u00adhaps that\u2019s all true. The result is no less trou\u00adbling. Years of review by an alpha\u00adbet soup of gov\u00adern\u00adment boards and com\u00admis\u00adsions have pro\u00adduced this result: no one will be held account\u00adable for a great injus\u00adtice. Gov\u00adern\u00adment abused its pow\u00ader and no one is to be sanc\u00adtioned for the abuse. That is the greater injustice.<\/p>\n","protected":false},"excerpt":{"rendered":" The late Sen\u00ada\u00adtor Ted Stevens (R\u2011AK<\/span>) was once a pow\u00ader\u00adful man. Unbowed before col\u00adleagues and Pres\u00adi\u00addents, Stevens\u2019 pow\u00ader proved no match for gov\u00adern\u00adment lawyers and FBI<\/span> agents, who, accord\u00ading to a lengthy court-ordered report, lied, hid evi\u00addence and delib\u00ader\u00adate\u00adly deceived a judge \u2026 Con\u00adtin\u00adue read\u00ading