Subverting Brady v. Maryland and Denying a Fair Trial: Studying the Schuelke Report
| Citation | Vol. 64 No. 3 |
| Publication year | 2013 |
Subverting Brady v. Maryland and Denying a Fair Trial: Studying the Schuelke Report
Bennett L. Gershman
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The Schuelke Report1 about the ill-fated federal prosecution of the late-Senator Ted Stevens is an extraordinary contribution to criminal procedure. No other official documentation or investigative study of a criminal prosecution, to my knowledge, has dissected and analyzed as carefully and thoroughly the sordid and clandestine actions of a team of prosecutors who zealously wanted to win a criminal conviction at all costs. In examining this Report, one gets the feeling that as the investigation and prosecution of Senator Stevens unfolded and the prosecution's theory of guilt unraveled, the prosecutors became indifferent to the defendant's guilt or innocence. They just wanted to convict him. Based on depositions of these prosecutors, their e-mails, notes, memos, conversations, court filings, transcripts of testimony, and oral arguments, the Schuelke Report methodically and exhaustively documents the way these prosecutors manipulated flimsy, ambiguous, and unfavorable evidence; systematically concealed exculpatory evidence from the defense and the jury; and thwarted defense attempts to locate that evidence in order to convict a United States Senator and destroy his career.
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Ted Stevens, a U.S. Senator from Alaska—and the longest-serving Republican in Senate history—was convicted on October 27, 2008, by a federal jury of making false statements on Senate financial disclosure forms.2 Shortly after the conviction, serious irregularities in the prosecution of the case prompted the United States Department of Justice to assign a new team of prosecutors to review the evidence and the conduct of the trial prosecutors.3 This new team discovered quickly that exculpatory evidence had been concealed from the defense. The Justice Department then moved to set aside the verdict and dismiss the indictment. Federal District Judge Emmet G. Sullivan, who had presided at the trial and had previously held two of the trial prosecutors in contempt for failing to comply with his order to disclose exculpatory information to Stevens's attorneys, granted the motion. Judge Sullivan then appointed Henry F. Schuelke III to investigate and prosecute criminal contempt proceedings against the six prosecutors who conducted the Stevens investigation and trial.4
Schuelke's investigation lasted two years and was based on a review of over 128,000 pages of documents. His 514-page Report was released on March 15, 2012.5 In the Report he concluded that the investigation and prosecution of Senator Stevens were "permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens's defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness."6 The Report concluded, however, that no criminal contempt prosecutions should be initiated against any of the prosecutors under 18 U.S.C. § 401(3),7 because they did not violate a "clear, specific and unequivocal order" of the trial court that had commanded them to
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disclose this information that would support a finding, beyond a reasonable doubt, of criminal contempt.8
The government's prosecution of Senator Stevens focused on the period between May 1999 and August 2007, when Stevens, as the indictment alleged, received more than $250,000 worth of renovation and repair services on his part-time residence in Girdwood, Alaska. These services were given by VECO Corporation and its owner, Bill Allen, a friend of Senator Stevens and ultimately the chief witness against him.9 The seven-count indictment charged Stevens with concealing the receipt of free renovation and repair work by failing to disclose these benefits on the financial disclosure forms he filed annually with the Senate.10
The critical issue at the trial, and Senator Stevens's principal defense, was his intent. Stevens claimed that he did not intentionally file false financial disclosure forms because he and his wife, Catherine, believed that their payments of $160,000 to the contractor they hired—Christensen Builders—covered the entire cost of the renovation, and that they did not believe they had received additional free services from VECO. As the Schuelke Report documents, however, Stevens's ability to prove his defense was thwarted by the actions of the prosecutors in concealing significant exculpatory evidence that would have corroborated his defense and their frustrating of repeated attempts by Stevens's lawyers to obtain this evidence.11
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A. Rocky Williams Corroborates Stevens's Defense, but this Information is Concealed from the Defense
Rocky Williams, a VECO employee and known as "Bill [Allen]'s eyes," supervised the renovation work on Stevens's home by Christensen Builders and VECO between 2000 and 2002.12 Williams was slated to be a government witness to testify to the work done on the home by Christensen and VECO employees as well as to the value of that work.13 Williams was interviewed by the prosecutors four times in August and September of 2008 in preparation for trial. According to the prosecutors' handwritten notes of these interviews, Williams repeatedly told them that after reviewing the Christensen Builders bills, he sent the bills to Bill Allen along with the additional charges for his time and the time of other VECO employees, and that it was his understanding that Allen would add these costs to the Christensen bills before sending the bills to Stevens.14 The prosecutors knew from early in the investigation that Williams's belief that the VECO expenses were being rolled into the Christensen bills would corroborate Stevens's defense—that he paid the Christensen bills in full, believing that the VECO expenses had been added to these bills and, therefore, did not knowingly and intentionally file false financial disclosure forms.15
The Report suggests that as the case neared trial, the prosecutors became convinced that Williams might be more of a liability as a government witness than an asset. Canceled checks and notes from Williams to Catherine, Stevens's wife, supported Stevens's claim that it was reasonable for him to believe that VECO expenses were included in the large Christensen bills.16 Moreover, from Williams's account the prosecutors became alerted to questions concerning the accuracy of the VECO time sheets and cost reports, which were going to be used to prove the value of the benefits to Stevens. Williams acknowledged that he and other VECO employees did not work full-time on the Stevens renovation
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and, therefore, the VECO records probably were inflated.17 Finally, a few days before the trial, Williams did poorly on a mock cross-examination. On the day of opening statements, Williams was sent back to Alaska, allegedly because of his poor health and need for medical attention in Alaska.18
The prosecutors never disclosed Williams's understanding to Stevens's attorneys—which Williams repeated in each of the four pre-trial interviews and which the prosecutors knew would be Senator Stevens's principal defense—that VECO costs were included in the Christensen bills.19 Indeed, the prosecutors frustrated attempts by the defense to locate this information. The prosecutors were assured by Williams that he would not to speak to Stevens's lawyers.20 Williams's exculpatory statements in his interviews were not memorialized in any of the 302 reports and not disclosed to the defense.21 Instead of including his exculpatory statements, the only statements by Williams that were memorialized were two sentences that prosecutors dictated into a 302 report which gave the false impression that Williams's statements actually were helpful to the government. One sentence stated that Williams never had any conversations with Ted or Catherine Stevens in which he told them that VECO expenses were included in Christensen invoices. The second sentence stated that neither Ted nor Catherine Stevens ever asked Williams whether the VECO expenses were included in the Christensen bills.22
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B. Bill Allen's Role
Bill Allen was VECO's principal executive officer and principal owner. He became a cooperating witness with the Justice Department in 2006 in connection with the "Polar Pen" investigation into public corruption in Alaska.23 In 2007, Allen entered a plea agreement and testified as the government's major witness against Alaskan state legislators Peter Kott and Victor Kohring, and, in 2008, against Stevens.24 Allen's testimony was critical to Stevens's conviction. The government's concealment of significant Brady information concerning Allen's credibility was the principal basis for the Justice Department's decision to seek dismissal of the charges, as well as Judge Sullivan's decision to appoint Mr. Schuelke to investigate and prosecute criminal contempt charges against the Stevens prosecutors.25
C. Allen Suborns Perjury by Bambi Tyree, but This Information is Concealed from the Defense
Bambi Tyree, a child prostitute, had a sexual relationship with Bill Allen when she was fifteen years old. In 2004, when she was twenty-three years old, she was indicted on drug conspiracy and child-sex trafficking charges by the U.S. Attorney's Office in Alaska.26 Tyree became a cooperating witness against her co-defendant Josef Boehm. During a trial preparation interview conducted by Assistant U.S. Attorney Frank Russo and FBI case agent John Eckstein, the first subject Tyree was questioned about was her relationship with Allen. Agent Eckstein's 302 report of that interview states:
TYREE had sex with BILL ALLEN when she was 15 years old. TYREE previously signed a sworn affidavit claiming she did not have sex with ALLEN. TYREE was given...
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