Judge orders release of misconduct report in Stevens trial

An investigative report about alleged prosecutorial misconduct in the corruption case against the late U.S. Sen. Ted Stevens will be released after a Washington, D.C., federal judge yesterday found that the public's right of access overcame several of the lawyers’ claims that disclosure of the document would damage their reputations.

U.S. District Court Judge Emmet G. Sullivan also rejected the prosecutors’ argument that the material was akin to grand jury material, which has a long tradition of secrecy.

“To deny the public access to [the] Report under the circumstances of this case would be an affront to the First Amendment and a blow to the fair administration of justice,” Sullivan wrote in his opinion ordering that the report be released by Mar. 15.

At issue was a 500-page report from Henry Schuelke III, the special counsel Sullivan appointed in April 2009 to investigate allegations of wrongdoing by six government attorneys who prosecuted and convicted Stevens in October 2008 for failing to report $250,000 in improper gifts and home renovations on his public disclosure forms. The Republican senator from Alaska, who died in a plane crash in August 2010, lost his re-election bid the next month.

Although Schuelke’s report, which he completed and filed with the court last November, concluded that “the investigation and prosecution of Senator Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness,” he did not recommend any prosecution for criminal contempt.

The government moved to dismiss the indictment with prejudice and vacate the verdict about four months after the trial.

Sullivan kept the report confidential to allow the U.S. Department of Justice and attorneys named therein to review it. Last month, the Justice Department notified Sullivan that it did not object to public disclosure of the report. Two of the named attorneys said they either agreed or did not object to its release, two asked the court to permanently seal the document, and the remaining two advised the judge that they opposed its disclosure. The attorneys’ names were redacted in the opinion released yesterday.

The lawyers who opposed the unsealing argued that Schuelke’s investigation was a “grand jury-style” probe that should be bound by the grand jury secrecy rules, particularly since the investigating body did not indict or recommend criminal prosecution. As such, the document was not subject to a right of public access under the First Amendment, the attorneys claimed.

Sullivan rejected the argument, holding that the right of access to criminal trials extends to many pre- and post-trial records and proceedings.

“Access to the Report will play a significant role in the public’s understanding of criminal trials and safeguard against future prosecutorial misconduct, considerations the courts have consistently found weigh heavily in favor of the right of access,” Sullivan said. “The Stevens case has come not only to symbolize the dangers of an overzealous prosecution and the risks inherent when the government does not abide by its discovery obligations, but it has also been credited with changing the way other courts, prosecutors, and defense counsel approach discovery in criminal cases. In revealing what happened in the Stevens case, Mr. Schuelke’s Report sheds significant light on these important issues.”

Moreover, the attorneys’ interests in keeping the document secret were insufficient to overcome this right of public access, the court ruled.

“While objecting generally to release of the Report as unfair and prejudicial to the opposing attorneys’ privacy and reputational interests, those attorneys have not specified any compelling interest that would meet their high burden to justify keeping the Report under seal,” the judge stated.

Sullivan’s order allows the attorneys to submit objections to the report, which will be included as addenda to the document. Also on March 15, the court will publish an unredacted version of its opinion that reveals the prosecutors’ names.