The government's prosecution of U.S. Sen. Ted Stevens will press on, despite a third attempt by his defense team to convince federal Judge Emmet Sullivan to dismiss the indictment against the 84-year-old legislator, or declare a mistrial, because of several instances of the government's mishandling of evidence.
Sullivan ruled late Wednesday afternoon against the motions for a mistrial or dismissal, but he clipped the government's prosecutorial wings once again, and chastised the government's team for not living up to its obligation as "the gatekeeper" and guardian of all evidence in the case.
The government, Sullivan said from the bench, must treat evidence that is favorable to the accused — Stevens — as sacredly as it treats the evidence that bolsters its case against him. He has repeatedly expressed doubts that the prosecution is capable of doing so.
At issue today were several motions filed by the defense from Sunday night to Tuesday — motions that cited many instances of alleged government misconduct.
Two of these instances were particularly rankling to Sullivan. The first involved a $44,000 check written by the government's star witness, Bill Allen, the former CEO of the now defunct VECO Corp., for a Land Rover sport utility vehicle in 1999. The defense accused the government of springing the check on them at the very last second, when they should have been alerted to the check's existence well in advance of lead attorney Brendan Sullivan's lengthy cross-examination of Allen.
The Land Rover is central to one of the government's core accusations against Stevens. The prosecution said Stevens traded a 1964 Mustang convertible for the Land Rover in 1999. While Stevens handed over the car and a check for $5,000 to Allen when he was given the keys to the new Land Rover, the government alleges the full value of what Stevens traded for the Land Rover was nowhere near the $44,000 Allen paid for it. Stevens should have reported the difference on his annual Senate financial disclosure form that year, the government said its August indictment.
(Stevens is charged with making false statements on his Senate financial disclosure forms seven years running, to hide the vehicle transaction, the wholesale renovation of his Girdwood, Alaska, "chalet," and other alleged gifts and services from Allen and VECO).
Attorney Brendan Sullivan attempted to "impeach" Allen when he was on the stand yesterday by repeatedly questioning him about what he paid for the Land Rover. It was only on the government's redirect, when Sullivan had finished with Allen, that the existence of the check was revealed. Allen left the stand yesterday and likely departed for Alaska, and the defense cried foul, saying they wouldn't have bothered if the government had given them a copy of the check as they were required to do.
Judge Sullivan asked government lawyers why they didn't produce the check earlier, saying in a heightened tone of disbelief that he couldn't understand why the evidence wasn't produced to strengthen testimony given by a convicted felon.
The check surely bolstered the government's case, Sullivan said, but he ruled late Wednesday afternoon to strike all evidence related to the vehicle transaction from trial, simply because the prosecution did not follow his specific orders to turn over all relevant evidence to the defense in a timely fashion.
In addition, Judge Sullivan opted to strike all government evidence related to labor hours reported by two VECO employees who are said to have worked on the extensive renovations to the chalet, because the grand jury testimony given by one of them — Dave Anderson — conflicted with spreadsheets the government introduced as evidence. According to that grand jury testimony, Anderson said he was away from the job site for some seven weeks, even though according to the spreadsheets, he billed VECO for man hours at the Stevens house during that same seven-week period.
"You knew those spreadsheets were a lie, and you introduced them anyway," Sullivan said in court, venting his frustration at government lawyer Nick Marsh.
Again, Sullivan opted late this afternoon to strike Anderson's spreadsheet evidence from the trial record, as well as spreadsheet hours claimed by VECO worker Rocky Williams, whom the government flew out of Washington two weeks ago after keeping him in town for three weeks of pre-trial preparation. The defense at that time accused the government of hiding Williams from them, and made its first of three pushes for a mistrial.
It is not clear how significant these strikes will be for the government, if only because it presented some of its strongest evidence against Stevens to date Wednesday morning and afternoon. Taking the stand for the government was an FBI special agent out of Alaska who acted as a sort of document verifier for the prosecution. One by one, the government introduced Stevens' Senate financial disclosure forms from 1999-2006, none of which claimed Stevens had received anything from VECO and Bill Allen. Simultaneously, the government revealed e-mails between Stevens and Allen, and Stevens and Bob Persons, who directed work on the Girdwood residence in the absence of the senator or his wife Catherine.
The e-mails, introduced chronologically with the disclosure forms, appeared to show that Stevens was deeply involved in the work VECO was doing on the house, and knew about a great many details of that work, despite some of the assertions made by the defense in its opening statements.
With the judge's ruling to strike key pieces of government evidence, standard trial practice allows the defense to file a motion for acquittal, which will argue that the government hasn't proven its case, and Stevens should be allowed to go about his business without the cloud of a federal indictment hanging over his head. That brief is due to be filed Wednesday evening.
Judge Sullivan has scheduled a 9 a.m. ET hearing Thursday for arguments on that brief.
It is then expected he will bring the jury back into the courtroom, instruct them on Wednesday's strikes, then allow the prosecution to rest its case.
Sullivan will have to rule on the motion to acquit before the defense can launch its portion of the case.
Should the case move forward — that is, should the motion to acquit be denied — defense witnesses will start to file into the court. On that list: Former Secretary of State Colin Powell, and Hawaii Democratic Sen. Daniel Inouye. There are also several witnesses who have been flown in from Alaska to testify on Stevens' behalf.