Monday, October 27, 2008
Guilty on All Seven Counts
Live from the Ted Stevens Trial, Day 26
This is really the day that seemed impossible.
The jury convicted U.S. Sen. Ted Stevens on all seven counts of concealing free benefits on his Senate ethics forms over a half-dozen years.
The jury foreman read the verdicts at approximately 4 p.m. today in a packed courtroom in Washington, D.C.—verdicts that cast a terrible pall on a six-decade career of a public servant whose worst enemies would say had done much good for Alaska.
Ted Stevens took it stoically, although his face reddened. Lead defense attorney Brendan Sullivan moved closer to his client and touched him consolingly.
It was a stunningly swift end to a month-long trial, especially since the court had only this morning brought in a new juror from standby status as a replacement for a juror who had left due to a family emergency.
It only took minutes for the conviction to reverberate across the continent to Alaska and back.
This verdict is a national headline, not just front page news in Alaska on the eight-day homestretch to Election Day. Pundits, bloggers, pollsters, and political commentators are all guessing and spinning the consequences of the Alaska Republican’s eleventh-hour conviction.
The fight over Stevens’ seat is one of a handful of key races that control of the U.S. Senate hinges on. Democrats have long sought 60 votes to prevent Senate filibusters, and the possibility that turning back Stevens’ bid for a seventh full term would produce that 60th vote had helped rivet the country’s attention on this trial. “Ted Stevens’ conviction the crowning blow in a bad year for GOP senators” was the headline on a blog post on the Los Angeles Times website.
Whatever the effects on national politics, this event drew the attention of all those interested in the Senate and in the Last Frontier. It was the first federal trial of a sitting U.S. Senator in a quarter-century, and the defendant was “the Alaskan of the Century,” the man some say is most
responsible for shaping the 49th state.
Why a Conviction on All Seven Counts?
Several key factors stand out as likely contributing to the jury’s conviction of Sen. Stevens on all seven counts brought by the U.S. Department of Justice:
1. The low thresholds in the annual reporting requirements turned out to make this an easy case to prove—at least to a jury composed of people from Washington, D.C.
The indictment charged Sen. Stevens with intentionally concealing his receipt of more than $250,000 in benefits over a period of more than six years. The law Sen. Stevens was charged with violating, however, had limits far lower than that figure. That law made it a felony to intentionally fail to disclose benefits worth $260 in some years, $285 in one year, and $305 in other years. That’s a pitifully low bar to clear. As one observer noted, the prosecution could have proved the failure to disclose by presenting only three days of evidence, not the two weeks the government did put before the jury.
To many Alaskans, the charges in the indictment seemed incredible on their face. People who were used to the many good things Stevens had done for or brought to Alaska—and had heard many stories about his well-known intelligence and diligence—could not believe that he would try to hide ill-gotten gains on his house renovation or other gifts totaling a quarter of a million dollars.
Those Alaskans weren’t on the jury, however. The jury was instead composed of Washingtonians, people used to hearing about the rules imposed on government employees whether or not they worked for the government themselves. Washington juries have a tradition of being hard on public officials accused of official wrongdoing.
Posted near one of the entrances to this massive courthouse is the Code of Ethics for Government Service. Rule V of the 10-point code directs any person in government service “[n]ever to accept for himself or herself or for any family members, favors or benefits under circumstances which might be construed by reasonable persons as influencing the performance of public duties.”
Congress adopted this code by passing a statute in 1980 in the same wave of post-Watergate reforms that included the Ethics in Government Act, the law that the jury convicted Ted Stevens of violating (and a law that he voted for himself).
2. The critical question in this case was all about what was in Ted Stevens’ mind. The guilty verdicts on all seven counts made it clear that the jury saw him as a liar who schemed to get hundreds of thousands of dollars of benefits for free.
That Ted Stevens got these various things of value was never an issue. His house in Girdwood got a whole new bottom floor, decks, furniture, a professional gas grille, a tool chest with new tools, plumbing repairs, and a variety of other benefits that were provided partly or entirely by the oil-services firm VECO and its long-time CEO Bill Allen, and Stevens never paid VECO or Allen anything for those benefits. The prosecution exhaustively proved that Stevens received these valuable things, and the defense never disputed that he got them.
The defense was that under the law Stevens was not guilty of any crime because he did not intend to conceal his receipt of the benefits. The defense argued vigorously that as to some benefits (like the decks, the staircase, and other renovations) Stevens never knew that VECO or Allen provided those items. As to other benefits (such as the grille, the furniture, and the tool chest), the defense contended that Stevens never considered them his property.
By its seven guilty verdicts, it was obvious that the jury completely rejected the defense’s arguments. It wasn’t just that the jury convicted Stevens for failing to report for each of the years from 2000 to 2006—including one year in which the only gift he appeared to get was a runty husky. No, the clearest proof of that total rejection came when the jury convicted him of Count I, the charge that he knowingly engaged in a scheme to conceal his receipt of gifts from VECO and Allen—a scheme that ran for more than six years.
This blogger had thought that Stevens’ biggest problems were on the two counts that focused on the home renovations in 2000-2001 and on the construction of the lower deck in 2002, and it seemed to several trial watchers that there might be a split decision on the various counts. The jury’s conviction on all seven counts, however, showed a complete acceptance of the government’s case.
3. The judge made a number of rulings over defense objection to let in evidence that appears to have hurt Ted Stevens badly.
At the beginning of the government’s opening closing argument last Tuesday, federal prosecutor Joe Bottini played an FBI tape of Ted Stevens’ friend Bob Persons telling Bill Allen that “Ted gets hysterical when he has to spend his own money. The flip side of it he can’t really afford to pay a bunch of money.”
The defense fought hard to keep the jury from hearing this tape and another surreptitiously recorded conversation between Persons and Allen, attacking that evidence as irrelevant, excessively prejudicial, and “triple hearsay.”
The reason for that fierce objection is obvious: The Persons-Allen conversations put a big dent in Ted Stevens’ defense. It’s not just the line quoted above, which suggests that Stevens’ best friends saw the Senator as a penny-pincher living beyond his means who might want to get wealthy friends to bestow benefits on him. Hearing a portion of that tape probably reminded the jury of the unreal tone of the Persons-Allen conversations, where people work hard to prevent a friend from having to pay his plumbing bill and also spend substantial time thinking about a good investment for him.
The judge’s decision to allow the jury to hear those tapes of the Persons-Allen conversations will be just one of many points on appeal that will be urged by Stevens’ defense team at the law firm of Williams & Connolly. Along with other disputed evidentiary rulings—such as the rulings that let in evidence of “bad acts” of Stevens other than those he was charged with—the defense will certainly attack the judge’s failure to declare a mistrial after the judge made findings in the middle of trial that the prosecution had failed to provide exculpatory evidence to the defense.
The problem for Ted Stevens, however, is not just that every lawyer knows that it’s better to win the trial than to count on a successful appeal (which in any case would almost certainly only bring a new trial, not dismissal of the charges). It’s not just that an appeal will take many months if not years, and he is running a very tough re-election race with Election Day only eight days away. Ted Stevens’ biggest problem may be that a man turning 85 next month has a different timeline than younger people.
4. The prosecutors turned out to be the equal of the superstar Brendan Sullivan and the top-flight Williams & Connolly firm.
A trial is not just a play, where what really matters is the skill of the actors. But a trial is in part a play, and Williams & Connolly’s star value has been known for decades. An illustration of that firm’s prowess appears on the ground floor of this courthouse, where an exhibit celebrates Teamster leader Jimmy Hoffa’s acquittal of bribery in 1957 following a defense by “famed attorney Edward Bennett Williams.”
Williams was the founder of the firm that bears his name, and his performance in the Hoffa case is one of the cornerstones of his legacy as a legendary trial attorney. In a case where the government had videotape of his client paying money to the key witness, Williams beat the prosecutors like they were rented mules, with the jury coming back with not guilty verdicts after only three and a half hours of deliberation. The defeat was so total that a newspaper columnist wrote that “To watch Williams and then to watch a Department of Justice attorney contending with him is to understand the essential superiority of free enterprise to government ownership.”
Things have changed in the last 50 years. The Williams & Connolly firm has had other great successes, and lead Stevens lawyer Brendan Sullivan is Williams’ protégé. Today, however, federal prosecutors can hold their own against the best of the private bar. Chief prosecutor Brenda Morris did particularly well in her cross-examination of Catherine Stevens and in her rebuttal closing argument, and clearly connected better with this jury than Sullivan did. Fellow prosecutors Nicholas Marsh and Joe Bottini also mounted effective cross-examinations of defense witnesses, and Bottini’s opening closing argument was solid and well-done.
All the lawyers in this case worked like dogs during a trial with a breakneck pace. Victory has got to be particularly sweet for these prosecutors, who had their integrity questioned by the judge during the blow-ups over the discovery violations and consequently had to report themselves to the Department of Justice’s Office of Professional Responsibility. Standing with her colleagues and her boss in the rain at the prosecution’s outdoor post-trial press conference, chief prosecutor Brenda Morris permitted herself a small smile. It would be very surprising if she didn’t have at least one drink tonight.
5. The defense strategies of pushing for a speedy trial and mounting a fact-based defense—particularly one featuring Sen. Stevens’ testimony—seem to have backfired.
The first bold move by the defense was to demand an amazingly early trial by all standard rules of white-collar criminal defense. This case went to trial less than two months after the issuance of the indictment, when under normal practice it would have taken maybe nine to 12 months. The defense’s stated reason was to give Stevens a chance to clear his name before the election, but another advantage some veteran lawyers saw was that it forced the prosecution to go to trial faster than it might have expected.
In the trial’s early stages, the defense’s push for speed seemed shrewd, as the haste appeared to contribute to the various failures of the prosecution to turn over exculpatory evidence. It’s also possible, however, that the defense could have come up with even more creative arguments if it had more time to examine the evidence and research the law.
The more questionable move, though, seems to have been the decision to defend on the facts, particularly by having the defendant waive his constitutional right not to testify. Throughout much of the trial, the defense was scoring by pointing out the prosecution’s unforced errors, and even got the judge to tell the jury that some evidence was being excluded because of the government’s failure to meet its obligations.
The defense also appeared to do well in its presentation of character witnesses for the defendant, particularly former Secretary of State Colin Powell and Gwen Sykes, a former Senate staff aide for Stevens who became Chief Financial Officer for Yale University. These were people who had worked closely with Stevens who could testify to his honesty and reputation for probity, and the fact that they were African-American certainly didn’t hurt with this predominantly black jury.
What was striking to many observers, however, was how the defense case seemed to go into reverse when it presented its key witnesses on the facts of the case. The prosecution gained significant ground through its cross-examination of contractor Augie Paone, Stevens’ friend Bob Persons, Stevens’ wife Catherine Stevens, and Ted Stevens himself. Paone agreed with some of the government’s key contentions, Persons seemed shifty, Catherine Stevens came off as a witness who contradicted herself and seemed excessively entitled, and Ted Stevens looked like an angry and arrogant man who couldn’t explain away some of the most damaging allegations against him.
Would the defense have done better to just rely on the witnesses who proclaimed Ted Stevens’ sterling character? It’s obviously impossible to run a scientific experiment. Not calling either Catherine or Ted Stevens to testify, however, would have prevented some testimony that seemed to damage the defense with this solidly middle-class jury. Some of that evidence came when the prosecution’s cross-examination of Catherine Stevens got her to admit that despite making close to $500,000 per year, she used the Senator’s staff to pay some of her credit card bills (apparently including accounts at Saks Fifth Avenue and Neiman Marcus) as well as some utility bills.
The most critical decision, however, was obviously having Ted Stevens testify, which changed the whole framework of how the jury saw the case. As one observer pointed out, it’s only possible to make the jury choose between trusting Colin Powell and trusting Bill Allen if Ted Stevens never takes the stand. Once the defendant testified, the jury appeared to focus on whether what he said made sense as opposed to whether Bill Allen had made stuff up to curry favor with prosecutors.
Ted Stevens’ testimony was so problematic for the defense that more than one observer wondered if the defendant had insisted on taking the stand over his lawyers’ advice.
Two Other Observations
1. Don Young is sweating tonight.
As first reported in the Wall Street Journal, Alaska’s sole member of the U.S. House is facing his own federal criminal investigation. Rep. Don Young has spent more than a million dollars in legal fees to fight off this investigation. The 18-term Alaska Republican’s long-time close ties to VECO make it likely that any prosecution of him will feature some of the same witnesses that helped convict Stevens, including Bill Allen. Seeing Ted Stevens go down on all counts based in part on Allen’s testimony has got to give Young a bad feeling that goes beyond his fears about what may happen in the very competitive election he faces next week.
2. This verdict is a tragedy on so many levels.
After receiving an incredibly aggressive and expensive defense, Ted Stevens stands convicted on seven felony counts by a jury that heard a month’s worth of evidence and argument. That’s how our system works, and as a former federal prosecutor and U.S. Senator for 40 years Stevens knows that system well.
This is still a very sad day, given how hard Ted Stevens has worked for Alaska for the last half-century and how much he has accomplished. I just wish that somehow history could have taken a couple of different turns that would have prevented this outcome today.
One turn could have occurred when Ted Stevens came up for re-election in 1996. By that point he was 72 years old and had been in the Senate for 28 years. No one could have begrudged him if he had announced his retirement and then gone into what surely would have been a highly lucrative lobbying career. It would have meant that he would have missed the opportunity to do great things for Alaska as Chairman of the Senate Appropriations Committee as well as all the power and glory that comes with that position. But he also would have avoided the humiliation and stain of this day.
Yet another turn could have happened in 1998, as he was getting closer and closer to Bill Allen, the man he let bring him down. If only Ted Stevens would have listened to someone he trusted and respected, someone who would have told him “You have to keep your distance from Bill Allen. He’s walking trouble. Take his campaign contributions and tell him which other campaigns should get his contributions. But don’t hang out with him, don’t go on vacations with him, don’t do any business deals with him, and don’t put him in a position where he could compromise you.”
The first path obviously never got taken, and maybe Ted Stevens never got or never availed himself of a chance to take that second path. I wish he had.