Judge Emmet Sullivan refused on Thursday to dismiss the criminal case against Sen. Ted Stevens (R-Alaska), arguing that while the government had apparently violated its obligation to turn over exculpatory evidence to the defense, the defense now has the information and can still use it in the trial.
[IMGCAP(1)]The judge scheduled a status hearing for Monday morning and said that if the defense is ready to proceed at that point, the trial can resume. He seemed willing to offer the defense more time to prepare if necessary.
Prosecutor Brenda Morris said that her team had reported themselves to the Justice Departments Office of Professional Responsibility for investigation of a possible violation of their evidentiary obligations.
Stevens defense filed an emergency motion Thursday asking the judge to dismiss the indictment or declare a mistrial after the government handed over late Wednesday night evidence that Stevens lawyers said would have dramatically changed their arguments in the case.
Defense attorney Brendan Sullivan took to the podium as court came to order Thursday morning to demand that the judge declare a mistrial, pointing to an FBI summary that he received late Wednesday of an interview in which star prosecution witness Bill Allen suggested that if he had sent bills to Stevens for the renovations of his home, Stevens would have paid them.
Stevens is charged with seven counts of filing false statements over an eight-year period to conceal the receipt of more than $250,000 in gifts primarily in the form of renovations to his home in Girdwood, Alaska from the now-defunct oil-services firm VECO and its executives, including Allen, the companys chief executive officer who began testifying Tuesday.
The governments case against Stevens is based on the idea that he knew he was receiving items of worth and that he chose not to report those gifts on his annual disclosure forms because he wanted to avoid public scrutiny.
Stevens lawyer argued that the opening defense argument would have been dramatically different had he possessed the governments own evidence that Allen believed Stevens would have paid any bills he was sent.
The integrity of this process has been breached, Brendan Sullivan said. It must stop. He said the governments case is premised on the notion that Allen did not believe Stevens would have paid any bills for the renovation, but today they give us a document which says Bill Allen believes they would have paid.
Morris apologized profusely for failing to provide the document to Stevens earlier, but she said it was a simple mistake, not an intentional attempt to undermine the defense.
Im standing here as humbly as I know how, Morris told the judge. I dont blame you for being upset.
Throughout the proceedings Thursday afternoon, Sullivan indicated that he believed the government had violated its obligation to hand over Brady material information in its possession that could be helpful to the defense.
The government admitted that it had failed to turn over the information but argued that it had no impact on the defense because the government had already disclosed the fact that Allen believed Stevens wanted to pay for everything he got.
Sullivan ultimately agreed with the government that because Allen has still not been dismissed as a witness, Stevens attorneys can use the new evidence in cross-examination.
I think there has probably been a Brady violation here, the judge said, but you can still use it.
He said he was particularly concerned that the government had previously provided the defense with a version of the same document with the exculpatory words blacked out. How does the court have any confidence that the Public Integrity Section has any integrity? he asked. Morris replied that the redaction had been a mistake, and she admitted that it was poor judgment on the part of someone at the Justice Department.
The judge ordered the government to turn over FBI notes from interviews of relevant witnesses instead of the summaries of those notes they had already provided. By the end of the day, Morris said they had sent about 100 of the so-called 302s to the defense offices.
Short of the dismissal they sought, the judge offered the defense several alternatives, including an opportunity to offer a new opening statement. Sullivan said he was prepared to offer an instruction to the jury that would explain that the new opening statement was necessary because the government had failed in its obligation to hand over all relevant evidence.
But Stevens team declined. Its too weird to reopen now, attorney Robert Cary said.
Early in the day, Sullivan said he was very suspicious of the timing of the revelation of the evidence that may help Stevens defense.
It is difficult for the court to believe that the government overlooked this exculpatory information, the judge said. It strikes me as very unusual that the government found this material at a time when it could still be used. … It strikes me as very curious that this information just surfaced.
If it wasnt intentional, the judge said, it was gross negligence.
I find it unbelievable that this was just an error, he said. It strikes me that it was probably intentional.
Morris replied that if the government had intended to withhold the document from Stevens, it would have never seen the light of day.