Thursday, October 02, 2008

Mistrial Appears Certain In The Ted Stevens Case Thanks To Prosecution Withholding 302 Evidence From Defense; Second Prosecutorial Mistake Of Trial

Update October 2nd 4:36 P.M. Alaska time: Judge Sullivan refused the motion for a mistrial. Prosecutor Brenda Morris satisfied him that her failure to pass on the 302 was unintentional. Trial will continue.

The Federal case against Alaska U.S. Senator Ted Stevens, which has been slowly unraveling with each passing day, threatened to collapse altogether on October 2nd, 2008 today when Stevens' attorney demanded a mistrial or dismissal of charges over the failure of the government to turn over evidence favorable to Stevens. A hearing is set for 4:30 P.M. Eastern time (12:30 P.M. Alaska time) to determine whether to drop the case, declare a mistrial or continue on. A mistrial would allow the government to try Stevens again. Full story published in the Anchorage Daily News. National stories published by the Washington Post, the New York Times, and ABC News.

- Index to Department of Justice trial exhibits can be found HERE.

- Index to all Anchorage Daily News stories on the Ted Stevens indictment and trial can be found HERE.

The latest controversy revolves around a copy of a Form 302 documenting notes by an FBI agent of an interview with the main prosecution witness, former VECO boss Bill Allen, which quotes Allen as saying he believes Ted Stevens would have paid any bills from the re-modeling of the Girdwood cabin had he (Allen) sent them. In Wednesday's testimony, Allen stated that he did NOT bill Stevens for all the work done on the cabin.

However, the Form 302 in question was not given to the defense during the discovery phase, but was only delivered to the defense on Wednesday October 1st. And Stevens' defense lawyer, Brendan Sullivan, is irate and wants a mistrial, regardless of the reason why the form was delivered late. Sullivan claims had he been in possession of the form, he would have given a different opening statement.

Chief prosecutor Brenda Morris admitted that she violated the judge's orders in not turning over the document and apologized, calling the error a mistake. But she maintains she did not violate Stevens' rights, because she said the defense was told Allen had said that very thing in a letter dated September 9th. Morris further explained that the prosecution had only found that particular 302 as they were preparing for the next round of witnesses. The FBI agent who authored the 302 is part of the next round of witnesses.

A copy of the September 9th letter, subsequently filed by the defense today, said, "Allen stated that he believed that defendant (Stevens) would not have paid the actual costs incurred by Veco, even if Allen had sent the defendant an invoice, because defendant would not have wanted to pay that high of a bill. Allen stated that defendant probably would have paid a reduced invoice if he had received one from Allen or Veco. Allen did not want to give defendant a bill partly because he felt that Veco's costs were higher than they needed to be, and partly because he simply did not want defendant to have to pay."

Neither the prosecutor's apology nor explanation satisfied U.S. District Court Judge Emmet Sullivan. For the second time in a week, Judge Sullivan reprimanded the government, this time accusing it of directly violating his orders. On September 29th, Judge Sullivan previously chastised the government for sending prosecution witness Robert "Rocky" Williams home without alerting him or the defense that Williams was no longer scheduled to testify. A mistrial motion submitted by the defense at that time was not granted, however.

In this latest snafu, the judge believes the omission is intentional because Bill Allen is the government's star witness. Judge Sullivan sent the jury home for the day and ordered both sides to submit briefs on whether he should send jurors home for good.

Stevens is accused of not reporting more than $250,000 in free labor, materials and gifts he received, most of it from Veco, from 1999 to 2006. But Allen, in the middle of his testimony against Stevens, said on Wednesday that he didn't send Stevens a bill for tens of thousands of dollars of repairs and remodeling even though Stevens asked at least twice for one in 2002. He testified that Allen's good friend told him that Stevens was just "covering his ass" in asking for the bills.

Two different disclosure rules are at work here. In one rule, known as a "Brady" after the 1963 Brady v. Maryland Supreme Court decision that created it, the government is required to turn over evidence before the trial that would be favorable to the defendant. In a different rule, known as "Jencks" based upon the Jencks Act, the government must provide more detailed notes from agents at the time they testify.

Brenda Morris further explained that when members of the prosecution team were preparing "Jencks" material for the agent, Michelle Pluta, they realized they should have given the document to the defense sooner under the "Brady" rule. But she strongly denies that it was intentional. However, commentary on Roll Call better explains the prosecution's contentions and shows not only that the prosecution is trying to split hairs, but also the shallow nature of the case.

Analysis: I don't believe that Judge Sullivan would dismiss the charges outright, but I believe there's a strong possibility of a mistrial being declared, since this is the second significant error by the prosecution during this trial. And if a mistrial is declared, the possibility of the government launching another trial is low, not only because of our growing financial problems, but because the testimony of star prosecuttion witness Bill Allen is now exposed as weak and unsupportive of any intent by Ted Stevens to deliberately misreport his finances. And the government's case has revolved primarily around Stevens' intent.

Consequently, a mistrial most likely will be the end of Ted Stevens' legal troubles. And Alaskans seem more tolerant of Stevens' foibles than those of Sarah Palin. The resultant backwash of Alaskan sympathy will sweep him to victory over Mark Begich and other opponents on November 4th.

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