Wednesday, June 27, 2012

Two Assistant U.S. Attorneys Appeal Suspensions Issued in Probe of Ted Stevens Prosecution


As expected, Joseph Bottini and James Goeke, the two federal prosecutors facing suspensions in the Justice Department's investigation into the botched handling of the Ted Stevens case, have sought review of those suspensions.   The two government lawyers have filed appeals with the U.S. Merit System Protection Board.    Although neither of the appealing attorneys has filed a substantive pleading with this appeals board, expect two of the arguments to be that (1) it was unfair to discipline these two line prosecutors while letting their superiors off the hook for the higher-ups' role in the errors and omissions and (2) it was procedurally improper to take the decision on the discipline away from the   attorney who initially reviewed the matter and recommended no discipline.

Wednesday, June 20, 2012

The Big Questions in the Ted Stevens Case: Part I


Here is my latest column for the Alaska Bar Rag, the quarterly publication for the Last Frontier's lawyers.

The Big Questions in the Ted Stevens Case: Part I

Cliff Groh

Confusion and misinformation continue regarding the Ted Stevens case, even in the wake of the release in March of a court-appointed special counsel’s report on the prosecutorial misconduct that produced the case’s dismissal and a debate about how discovery works in federal criminal cases.

Following an investigation that lasted well over two years, the report found that “The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’ defense and his testimony, and seriously damaged the testimony and credibility of [Bill Allen,] the government’s key witness.” The prosecutors under scrutiny acknowledge that failures occurred in discovery, but deny any intent to conceal. Still to come is a report by the Office of Professional Responsibility (OPR), the Department of Justice’s internal watchdog unit, on the results of its own probe, and the OPR report might lead to sanctions for some of the prosecutors involved in the trial.

The release of the special counsel’s report written by Washington, D.C. attorneys Henry Schuelke and William Shields has sparked renewed interest in what occurred in this landmark case. This article offers answers to the most frequently asked questions about the bungled Stevens prosecution and the fall-out. What follows is based on my in-person coverage of the five-week trial in Washington, D.C. in 2008, my continuing coverage of the post-trial litigation and other cases arising out of the “POLAR PEN” federal investigation into Alaska public corruption, my review of the 525-page special counsel’s report and the hundreds of pages of responses and rebuttals it generated, and dozens of interviews with participants and observers. This series of questions and answers runs in rough chronological order, and it is the first installment of a series that will appear in the Alaska Bar Rag.

Why do people care so much about this case, more than three and a half years after the trial and almost two years after Stevens’ tragic death in a plane crash in 2010?

Ted Stevens was an Alaska icon and a powerhouse in the U.S. Senate. The scrappy lawyer won seven straight elections for the Senate as a Republican after his appointment to a vacant seat in 1968; the noted political analyst Michael Barone pointed out that at the height of his popularity Stevens carried every precinct in the state. Serving on the Senate Appropriations Committee for more than three decades and as chairman for more than six years, “Uncle Ted” showered so much federal funding on our young state that Alaska newspapers routinely used the term “Stevens money” without quotation marks to describe Uncle Sam’s projects and programs. As Stevens said in his farewell Senate address in 2008, “Where there was nothing but tundra and forest, today there are now airports, roads, ports, water and sewer systems, hospitals, clinics, communications networks, research labs, and much, much more.”

The legacy of the man tagged “the Alaskan of the Century” was more than the billions shipped from the federal treasury to the Last Frontier. Stevens played major roles in the enactment of the most significant Congressional measures affecting the 49th State. Those bills bearing the Stevens stamp included the legislation that created Alaska Native corporations (the Alaska Native Claims Settlement Act, or ANCSA), helped make Alaska’s fisheries sustainable, and allowed the construction of the Trans Alaska Pipeline System (TAPS). The Almanac of American Politics observed that “No other senator fills so central a place in his state’s public and economic life as Ted Stevens of Alaska; quite possibly no other senator ever has.”

The indictment in 2008 of Stevens on seven felony counts brought the first federal trial of a sitting U.S. Senator in more than 25 years. The case matched a prosecution trial team supervised by the Justice Department’s elite Public Integrity Section against a squad captained by the $1,000-per-hour Brendan Sullivan from the prominent Washington, D.C. firm of Williams & Connolly, renowned for its scorched-earth approach to white-collar criminal defense. The jury returned guilty verdicts on all counts that the trial judge overturned in the wake of post-trial revelations of the prosecution’s discovery failures. Along with triggering multiple investigations of prosecutorial misconduct, the collapse of the case brought calls for reform in the practices and rules governing discovery in federal criminal cases.

Looking at the trial provides lessons for litigators and those lawyers who actually try cases, and review of the post-trial litigation gives tips for attorneys in all areas of practice.

What was the nature of the relationship between Ted Stevens and Bill Allen, and why did the two men get so close?

The indictment against Stevens relied heavily on the Senator’s failure to report his receipt of things of value from Bill Allen and VECO, the Alaska-based oil-services and construction company that Allen built into a multi-national giant with close to a billion dollars in annual revenues. By the late 1990s, Stevens was very personally close to Allen. This relationship went way beyond discussions of politics or petroleum policy on long airplane trips and fishing trips with others.

Ties between Stevens and Allen got to the point that the two of them went on several one-on-one vacations the two men called “Boot Camps.” In these regular get-togethers, Stevens and Allen went off in the desert by themselves to try to shed a few pounds by taking walks and drinking wine in lieu of hard liquor. These “Boot Camps” continued after Allen suffered a brain injury in a 2001 motorcycle accident. The last of these retreats appears to have occurred in early 2006, less than eight months before Allen became a cooperating witness for the Justice Department against Stevens and a number of other defendants charged in cases arising out of the “POLAR PEN” probe.

While the motivations of Allen—a business titan with big North Slope contracts and the political point man for the major oil producers in Alaska—seem obvious in this relationship, Stevens’ reasons for getting so close to Allen are murkier. A pilot for the Army Air Corps who later graduated from Harvard Law School, Stevens’ closest friends tended to resemble him in being World War II veterans who became attorneys. Allen, on the other hand, was more than 13 years younger than Stevens and was never considered a candidate to become a lawyer. The rough-hewn welder-turned-tycoon was eight years old when Japanese officials signed the Instrument of Surrender on the battleship Missouri and 15 years old when he dropped out of high school. Moreover, Allen’s reputation was unsavory long before he admitted bribing state legislators and long before allegations about him engaging in sexual relations with underage girls became public (allegations which he has denied and for which he has not been charged). As longtime Alaska journalist Michael Carey noted of Allen, “You didn’t have to smell sulfur to know the devil was in the room.”

Stevens’ tight relationship with the multimillionaire magnate might stem partly or wholly from the Senator’s admiration for a rich self-made Alaskan, and observers have noted Stevens’ willingness as a lawyer to associate himself with people—including clients—who would not get a universal seal of approval. Those who prosecuted Stevens suggested that in becoming so personally close to the long-time VECO CEO Stevens also wanted to cozy up to an oilpatch insider who substantially funded Republican political campaigns, provided hundreds of thousands of dollars in lobbying and consulting income to his son Ben, and was eager to give the powerful U.S. Senator valuable gifts.

What charges did the federal government bring against Ted Stevens?

The Department of Justice filed on July 29, 2008 an indictment of Ted Stevens charging seven felony counts of failing to report gifts and liabilities on disclosure forms required annually from each U.S. Senator. Six counts covered the annual reports filed for the six calendar years 2001 through 2006, and a seventh count alleged a scheme by Stevens running from calendar year 1999 through calendar year 2006 to conceal his receipt of things of value from Allen and VECO. The mental state in the six counts for individual years was “knowingly and willfully,” and the mental state in the count for the alleged multi-year scheme was “knowingly and intentionally.”

The Ethics in Government Act sets a low dollar threshold for reporting gifts. The law required the disclosure of gifts from a single source if the aggregate value of the items received in a particular year exceeded a particular dollar value. For the calendar years 1999 through 2002, the requirement was to disclose gifts over a value of $260; for calendar year 2002, that dollar value was $285; for calendar years 2004 through 2006, it was $305.

In addition to charging Stevens with failure to report gifts in all seven counts, the indictment also charged the Senator with failure to report liabilities (debts) in each of the six counts tied to individual years. For each of those six years, the law required the disclosure of liabilities of more than $10,000 owed at any point in time during the calendar year. The prosecution’s theory in the indictment was that if the receipt of a particular thing of value was not reported as a gift for the calendar year in which it was received, that transaction was instead a loan that needed to be reported as a liability for that year and subsequent years.

The indictment alleged that Stevens received more than $250,000 worth of benefits that he failed to report. In terms of monetary value, the great bulk of the gifts and liabilities alleged in the indictment came from Allen and VECO as renovations and furnishings at a home in Girdwood owned by Stevens.

The indictment alleged that Stevens also received unreported gifts from others, including Alaska businessmen Bob Penney and Bob Persons, both friends of Stevens. At trial, those gifts turned out to include a stained glass window and a runty husky puppy alleged to have come from Penney as well as a $2,695 massage chair from Persons.

Questions Left to Answer

Why did the Department of Justice charge Ted Stevens with the particular charges in the indictment?

Why did the Justice Department in the administration of Republican President George W. Bush charge the longest serving Republican Senator ever less than four months before Election Day in his hotly contested race for another six-year Senate term?

Who made the decision to prosecute Stevens?

Who was in charge of the prosecution team at the trial?

How did there end up being more than twice as many defense attorneys as prosecutors working on the trial?

What were the arguments, strengths, and weaknesses of the prosecution and defense at the trial?

Why did Ted Stevens testify on his own behalf, and what effect did that decision have on the verdicts?

Why did the jury bring back guilty verdicts on all counts?

How did the prosecution fail in discovery, and why has there been no prosecution of the prosecutors identified as being responsible for the discovery violations?

How would the defense have used the evidence held back in the discovery violations to seek an acquittal on all counts?

Even if the prosecution had provided the defense all the discovery to which it was entitled, what is the likelihood that the jury would still have returned guilty verdicts on some or all of the counts?


Cliff Groh is an Anchorage lawyer and writer who has worked as both a prosecutor and a criminal defense attorney. He has blogged about the “POLAR PEN” federal probe into Alaska public corruption for years at, which in its entry for May 14, 2012 features an expanded and updated list of disclosures. Groh’s analysis regarding the Ted Stevens case has appeared in media as diverse as C-SPAN and the Anchorage Press. The lifelong Alaskan covered the five-week Ted Stevens trial in person in Washington, D.C. in the fall of 2008. He welcomes your bouquets, brickbats, tips, and questions at

Friday, June 15, 2012

Ray Metcalfe Asks Feds to Re-Open Probe into Alaska Public Corruption


Ray Metcalfe has written a public letter to the Justice Department requesting the federal government to re-start its investigation into Alaska public corruption.   Metcalfe is a former Republican state legislator and a dedicated activist who has assembled substantial amounts of evidence tending to show misconduct by a number of public figures in both major political parties in Alaska.   He worked particularly hard to demonstrate wrongdoing by former Alaska State Senate President Ben Stevens (R.-Anchorage), and the FBI interviewed Metcalfe during its "POLAR PEN" probe into Alaska public corruption.   

For all that, I think that it is highly unlikely that the Justice Department will be devoting resources to a major investigation into Alaska public corruption any time soon.

Thursday, June 14, 2012

Considerations in a Criminal Defendant's Decision to Testify


An experienced criminal defense attorney specializing in white-collar cases has given one of the best analyses ever of why it is often a bad idea for criminal defendants to testify at their trials and why those criminal defendants still do it.

Writing a post dated June 12, 2012 on the White Collar Crime Prof Blog, Lawrence S. Goldman pointed out that criminal defendants who testify are forced to undergo cross-examination, and that cross-examination gives the prosecution the equivalent of another closing argument.   Writing about an insider trading case, Goldman writes: 

"Interrogation about these repeated events would allow the prosecutors in effect an extra summation to hammer on these facts, indeed perhaps even better than a summation since the defendant would have to respond directly to each of the allegations, whereas in summation an attorney would have the option of ignoring, glossing over or generalizing about all or portions of the evidence."

Goldman's insights regarding the effect of a criminal

defendant's testimony are particularly valuable (indeed, they 

are so valuable that they justify the funky look of the rest of 

this post) :

"In any case, white-collar or not, I believe that when a 

defendant testifies, the standard of proof beyond a 

reasonable doubt is diluted.  Jurors, rather than 

asking themselves whether the prosecutor has proved 

the case beyond a reasonable doubt, focus more on 

whether the defendant probably told the truth.

"The decision whether to testify is one of the very few 

that virtually all lawyers, and all ethics rules, decree 

belongs ultimately to the client.  It is often difficult to 

convince white collar clients, especially those whose 

egos have become enlarged because of their extreme 

success, that they will be unable to convince a jury."

Also worth reading is Goldman's post of May 29, 2012 on that

same blog entitled "DOJ 'Punishment' of Stevens Prosecutors 

Too Lenient," which includes the lines "If a truck driver 

causes serious personal injury by reckless driving, is there 

any doubt he would be fired.   The injury to Senator Stevens 

was serious; the punishment was far too gentle." 

Wednesday, June 13, 2012

John Edwards Walks, Because Justice Department Won't Retry Him


Confirming widespread speculation, the Department of Justice has announced it will not retry John Edwards.   The announcement calls campaign finance prosecutions "challenging" and describes the decision to drop the counts remaining from the jury deadlock in the previous trial as
"[i]n the interest of justice...."

Another Voice from the "Compost Flows Downhill" Precincts


A Washington Post columnist reviews the disparate treatment of line prosecutors vs. higher-ups under the headline "At Justice, the grunts seem to be the fall guys in the Stevens case."

Monday, June 11, 2012

Will Cutbacks at American Newspapers Facilitate Public Corruption?


Alec MacGillis at The New Republic asks "Would Duke Cunningham Get Away With It Today?"    He points out the familiar fact that financial pressures on traditional media have sharply reduced the number of reporters at newspapers around the country, and he wonders if that reduced capacity for investigative journalism will result in public corruption escaping exposure.   

Friday, June 8, 2012

Questions on Ted Stevens Prosecution Raised this Week


The Senate Judiciary Committee held Wednesday another hearing that touched on the bungled Ted Stevens prosecution.

The hearing aired four important questions:

1.  Were the prosecution's failures in discovery in the Ted Stevens case intentional, reckless, or negligent?

2.  Did the internal ethics investigation conducted by the Justice Department's Office of Professional Responsibility (OPR)--and the parallel probe run by court-appointed special counsel--apply a double standard in punishing line prosecutors while unfairly letting their superiors off the hook?

3.   How common are prosecutorial discovery failures like those seen in the Ted Stevens case?   (Congressional critics point to a series of high-profile black eyes in the Justice Department's work, while Deputy Attorney General James Cole said there was "an 'incontestably small' number of discovery rule violations, something like three hundredths of a percent.")

4.   Are the problems in discovery in federal criminal cases sufficiently addressed by the administrative changes promulgated by the Justice Department in the wake of the debacle of the Ted Stevens case, or does Congress need to enact laws to change the rules?

Relatedly, Amanda Coyne and Tony Hopfinger of Alaska Dispatch ask "Why is lead FBI agent in botched Ted Stevens case still employed?" 

Wednesday, June 6, 2012

Another Look at the Bad Times in the Public Integrity Section


U.S. News & World Report examines the decline in fortunes and reputation of the Justice Department's Public Integrity Section in the wake of the failure to get convictions on John Edwards and the disaster of the bungled Ted Stevens prosecution.    Entitled "Government's Leading Anticorruption Group Fraught with Failure," the article paraphrases one critic's comments to the effect that the unit's "problems don't seem to have been malevolent, but a result of poor leadership and restricted powers stemming from unfavorable case law."  

Tuesday, June 5, 2012

Head of Association of Assistant Federal Prosecutors Decries Focus on Two Assistant Federal Prosecutors


In advance of tomorrow's U.S. Senate Judiciary Committee hearing on ways to ensure that federal prosecutors meet their discovery obligations, the President of the National Association of Assistant United States Attorneys has written a letter protesting what he sees as the unfair dumping of blame on two Assistant U.S. Attorneys for errors in the botched Ted Stevens prosecution.

The letter by Robert Gay Guthrie states that "Mistakes undoubtedly occurred, but we believe that these mistakes were inadvertent and not willfully made by the two AUSAs.    Moreover, we believe the entire team was culpable, not merely the two AUSAs."

The website pointed out that Guthrie has previously described Assistant U.S. Attorneys Joseph Bottini and James Goeke as "scapegoats."   Guthrie attributes the bungling of the prosecution to errors committed by the entire trial team--composed of lawyers in the Justice Department's Public Integrity Section as well as the two Assistant U.S. Attorneys--and higher-ups in DoJ.  

Guthrie's letter also describes misconduct by federal prosecutors as "infrequent" and opposes legislation to change the federal discovery rules in criminal cases. 

Monday, June 4, 2012

More Information on the Feds' Probe into Rep. Don Young


Charlie Savage of the New York Times had a roundup last week on the end of the John Edwards trial that surveys the state of the Justice Department's Public Integrity Section, "a once-vaunted watchdog" which the article says "once enjoyed an elite reputation." 

The story contains additional nuggets on the Justice Department's pursuit of Rep. Don Young (R.-Ak.) uncovered by the organization Citizens for Responsibility and Ethics in Washington (CREW).  These bits include links to an FBI memo setting out notes for an indictment of the Congressman for all Alaska as well as CREW's analysis of that draft indictment and other evidence released pursuant to requests for public records. 

The federal government has never indicted Young, and Young's lawyer has announced that the federal government has advised that it will not prosecute Alaska's sole Member of the House of Representatives. Young and his lawyer have consistently asserted that Young has committed no crime.

(Hat tip to blog reader J.W., and thanks on an entirely different matter to blog reader D.S.)     

Friday, June 1, 2012

Why Did the Jury Return Guilty Verdicts Against Ted Stevens While John Edwards Walked?


So I'm back in contact with the news and I find that the John Edwards trial ended in a mistrial with acquittal on one count and a hung jury on the other five counts, with the Justice Department unlikely to pursue a retrial.   This is obviously a different result than what occurred in the trial of Edwards' former colleague in the U.S. Senate, Ted Stevens.   One big difference was that the prosecution in the Stevens case did not turn over all the evidence to the defense that the government should have shared.   But beyond those discovery failures in the Stevens case, I would note two other significant factors that help explain the different outcomes:   

1.  The law surrounding the campaign finance violations at issue in the Edwards case is complex and confusing, while the law in question in the Stevens trial--a statute requiring Members of Congress to disclose gifts and loans--is straightforward if obscure.

2.   The defendant testified in the Stevens trial, while the defendant in the Edwards trial stayed off the stand.