Ted Stevens report: Unknown is, would he have been found guilty?

By Kim Murphy

March 15, 2012 12 AM PT

Reporting from Seattle — The independent counsel’s report on the corruption prosecution of former U.S. Sen. Ted Stevens is out. And while it contains blistering criticism of how Justice Department lawyers handled the case, the big question — whether Stevens would have been found guilty had the prosecution lived up to its obligations — will never be known.

The longest-serving Republican in the U.S. Senate, Stevens lost his final bid for reelection to Democrat Mark Begich in the weeks following the jury’s guilty verdict in 2008. After the Justice Department on its own initiative later dismissed the indictment, it was too late. Begich had won. Stevens’ long legacy in Alaska was spoiled. He died in a plane crash in 2010 at the age of 86.

In Alaska, there are many who say the “intentional” misconduct documented in special counsel Henry F. Schuelke III’s report — showing that Justice Department lawyers withheld critical information that could have substantially aided Stevens’ defense — amounts to an official reprieve for the former senator.

“If it turns out that evidence that could have helped him was not offered to him, you might talk about exoneration,” former Anchorage Mayor Jack Roderick, a longtime friend and former legal partner of Stevens, said in an interview. “Everyone hopes that he will be thought of as someone who spent his entire political life looking out for Alaska’s interests. Ted understood the state, and he worked extremely hard for the state. It was never a matter of corruption. No. He showed bad judgment.”

But what remains unanswered in the report — because it is unknowable — is whether a jury, had the defense been given access to the wealth of material casting doubt on the government’s star witness, former oil industry executive Bill Allen — would have convicted Stevens anyway.

“That trial might well have brought back guilty verdicts, even if they’d heard all the evidence. As much as Ted Stevens’ defenders might not want to hear that right now,” said Cliff Groh, an Anchorage attorney and former state prosecutor who has closely followed the series of corruption prosecutions that surrounded the Stevens case and written about them on his Political Corruption blog.

It is important to remember, Groh said, that some of the evidence prosecutors presented had nothing to do with the tainted Allen material, including evidence that Stevens had failed to report the gift of a $2,695 massage chair and a $1,000 sled dog (as valued by the government in its filings).

“I’m bothered by this. I think all Americans should be bothered by the mistakes and errors and failings of the prosecution. It’s a sad chapter, and it also makes you feel unhappy as a taxpayer that these screw-ups were done in your name,” Groh said. “On the other hand, I do not think that there is a simple, clear statement to be made that Ted Stevens is innocent, or that that particular jury in the fall of 2008 would have reached a not-guilty verdict if the defense had had all this evidence in a timely manner.”

Stevens’ defense lawyers disagree.

Attorney Brendan V. Sullivan Jr. said the special counsel’s report provides “evidence of government corruption that is shocking in its boldness and its breadth” and clearly raises doubts about the entire case against the former senator.

“A miscarriage of justice would have been averted had the government complied with the law. There would have been no illegal verdict. The senator would not have lost the election in Alaska. Instead, the government proceeded by any means necessary to win their case,” Sullivan said in a statement.

“Once in a generation a case comes along which impacts more than the parties involved and their families. This is that case,” he added. “This report is a powerful tool to prevent future violations of the rights of all citizens.”

For at least one of the characters in Alaska’s long-running political corruption drama, the report was too little too late.

Nicholas Marsh, the prosecutor in the Justice Department’s Office of Public Integrity who oversaw many of the day-to-day workings of the case, committed suicide in September 2010. Friends said he’d waited in anguish for months for what he had hoped would be exoneration in the report, but worried he would have to take the blame for superiors.

Why did Schuelke take so long to prepare his report, Marsh’s close friend, Washington, D.C., attorney Joshua Waxman wants to know.

“One point I really do not want to be lost today with the issuance of the report is the extreme and unexplained delay this investigation took, which placed a real undue burden and fear on him as he waited month after month to see the end of this investigation,” said Waxman, noting that the special prosecutor investigations in both the Watergate and the Monica Lewinsky cases were completed in a much shorter period.

He said Schuelke’s report, in placing blame on front-line prosecutors, also failed to give full consideration to evidence that Marsh had, in fact, laid out the full array of potentially exculpatory evidence to the Justice Department’s internal ethics group and had twice been told not to disclose it to the defense.

“This was a one-sided report,” Waxman said. “We may never know all the facts. But I don’t want people to lose sight of one thing. There’s been some talk that this was a wrongful prosecution from Day 1. I want to make it clear that the evidence here was overwhelming. Even if you take away everything that has to do with Bill Allen in this case, there was substantial additional information that the jury heard about other gifts. This was no wrongful prosecution.”

In Alaska, the case is likely to linger as it always has -- a troubling question mark in a long career of a man who endures as one of the state’s most popular politicians.

“Alaska opinion will be divided into three parts,” said Michael Carey, an Anchorage columnist and former editorial page editor of the Anchorage Daily News.

“There’ll be a part of the public that says: ‘That’s politics. I don’t trust the government and I’m not surprised that the government behaves badly.’ There’ll be another group of people who say, because they have strong feelings about Stevens, they will feel he was vindicated, and got a bum rap, and would have won the election had it not been for the misconduct of the prosecutors. Then there’ll be some people who say he did it and had it coming anyway.”

“This report does not answer the most interesting question to Alaskans. Alaskans want to ask the question, ‘Was Ted Stevens innocent?’ “Groh said. “And that is never a question that’s asked in a court of law.”

Report: Intentional misconduct in prosecution of U.S. Sen. Ted Stevens

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