March 21 (Bloomberg) -- By my count, two powerful people are dead in the wake of a profoundly unjust use of government power.
A long-awaited report on the 2008 case of Senator Ted Stevens of Alaska confirmed that his case was an ill-conceived prosecution “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.”
The findings in this report, released March 15, aren’t new. The charges carry no penalty. Punishment is left to the Justice Department’s Office of Professional Responsibility, which is expected to act any day now. Neither Stevens nor a prosecutor who helped to investigate him will be here to receive it.
Stevens’s power was legendary. A prosecutor also has vast power: Unlike defense attorneys, prosecutors are supposed -- required -- to care about more than just winning. According to the American Bar Association’s Standards for Criminal Justice, “The duty of the prosecutor is to seek justice, not merely to convict.”
This report comes too late for Stevens. The unjust verdict set off a chain of events that saw him lose his Senate seat and -- if you believe fate turns on random decisions like jumping in the car instead of taking the train -- perhaps his life.
Stevens was so convinced of his innocence when he was charged with not reporting gifts, primarily renovations to his modest house, that he asked for a quick trial to remove the cloud over his head before Election Day 2008, when he hoped to win a seventh complete term.
At the heart of the case was a note from Stevens to Bill Allen, the government’s star witness and the man who oversaw the renovations, asking for a bill. Stevens wanted to make sure he didn’t run into a problem similar to the one that had felled his Senate colleague, Robert Torricelli of New Jersey, who withdrew from his re-election campaign in 2002 after the Senate ethics committee sanctioned him for receiving improper gifts from a contributor.
Stevens paid various contractors $160,000 over the course of the work -- far more than it was worth, according to the bank appraiser (who valued it at $124,000) the tax assessor ($104,000) and Allen himself ($80,000).
As many times as prosecutors asked -- in more than 50 pre-trial interviews -- Allen could not explain away the note or payments made, which tended to exonerate Stevens. Finally, eight days before trial, Allen came up with an explanation. A friend of Stevens, he said, had told him to ignore the note, that Stevens was just “covering his ass.”
Juries don’t like recent recollections, and on the stand prosecutors never questioned Allen about when he told them this new information. When asked on cross-examination, Allen denied that he’d only just come up with it. Prosecutors knew he was testifying falsely but did nothing about it.
Days before the election, a guilty verdict was returned. One of the most popular politicians in Alaska, who had helped turn a territory into a state and had easily won every previous election, lost by about 1 percent of the vote.
The verdict -- which was dismissed when new prosecutors were assigned and turned over the exculpatory notes on which last week’s report relies -- defined Stevens. The trial is mentioned within the first few sentences of almost every obituary of Stevens, who was killed in a crash of a private plane heading to an Alaskan fishing lodge in August 2010.
Ironically, had he still been in the Senate, it’s almost certain Stevens would not have been on that trip. First, he might not have been able to go fishing that day. More important, Senate ethics rules would have prohibited him from getting on aircraft owned by a telecommunications company. He never wanted to be “torched,” the phrase used to describe what happened to Torricelli.
Stevens wasn’t the only casualty. Nicholas Marsh was a young prosecutor who worked on the Stevens case and took the reversal hard. Once you indict a sitting senator, you must convict him, or your career path is decidedly downward. In the wake of the dismissal, Marsh was transferred from the elite office of public integrity.
The investigation weighed heavily on him. Newly married and with season tickets to the Washington Wizards, he was nonetheless depressed enough to hang himself at home on Sept. 26, 2010. His attorney, Bob Luskin, said the investigation was just too much for him to bear. “This is the process and it’s immeasurably cruel and most people can stand up to it, but some can’t.”
Stevens wasn’t the most beloved of senators. But he was the grittiest. He won a Distinguished Flying Cross for piloting transport planes behind enemy lines in World War II. Yet the 84-year-old Stevens found it difficult to listen to the lies at the his trial. His attorney, Brendan Sullivan, sometimes wondered “if he’d come back in the morning or just die in his sleep.”
The longest-serving Republican senator, Stevens was president pro tempore and a top appropriator, wearing his Incredible Hulk tie and his “King of Pork” title proudly. When the notorious “Bridge to Nowhere” was challenged after becoming the epitome of wasteful spending, he said from the Senate floor he would be “taken out of here on a stretcher” before letting the action stand. He stayed upright and Alaska got its money.
There might have been a happy ending to this sad tale of good guys thinking it’s OK to become bad guys in the name of justice. Senator Mark Begich would not have won in 2008 had it not been for the Stevens verdict. When the case was dismissed, Begich could have resigned in recognition of the changed circumstances. In a special election, Stevens would have won in a landslide.
Begich would have gone down in history as a bigger man than being a senator could ever make him. Stevens would have continued being a senator, which meant more to him than almost anything else. And the woman whom Nicholas Marsh married might still be his wife, instead of his widow.
(Margaret Carlson is a Bloomberg View columnist. The opinions expressed are her own.)
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