FBI Whistleblower Plugs Toobz Stevens Prosecution

graphic by twolf

I have stated before that the case against Ted Stevens should have been dismissed for prosecutorial misconduct before it ever reached the contaminated and bizarre jury process that led to the guilty verdict.

Late today we received yet more evidence of just how true that is. From the Anchorage Daily News:

A five-year FBI agent assigned to the Alaska corruption investigation is the whistleblower who brought a complaint of misconduct against other agents and at least one prosecutor involved in the trial of U.S. Sen. Ted Stevens.

But the whistleblower’s explosive allegations about misconduct by other members of the FBI and the prosecution suggest intimate, firsthand knowledge of the full investigation from the start, and of the activities surrounding Stevens’ trial.

"I have witnessed or learned of serious violations of policy, rules and procedures as well as possible criminal violations," the whistleblower asserted in his complaint to the Justice Department’s Office of Professional Responsibility.

The whistleblower said agents got too close to sources, took gifts and favors from sources, and revealed confidential grand jury and investigation information to sources and reporters.

The whistleblower also said members of the prosecution team intentionally withheld information from Stevens’ defense that was required by law to be turned over. In addition, the prosecution deliberately failed to alert the defense that it was sending a key witness back to Alaska without testifying even though that witness was under a defense subpoena.

Prosecutors and agents also failed to properly log and track evidence, the whistleblower said.

Two filings came out today: The decision and order by Judge Emmet Sullivan releasing the document, and the actual whistleblower’s complaint.

This case was already so full of erratic and malicious misconduct that it was almost certain to be reversed on appeal. See this earlier post I did and this post by Christy Hardin Smith.

Stevens’ attorney, Brendan Sullivan, has already lodged a motion to dismiss the charges or, alternatively, gain a new trial. Stevens has not been sentenced yet, so this is still in the trial court, not the appellate level.

The real issue is going to revolve around Federal Rules of Criminal Procedure Rule 16(a)(1)(E), which requires that the government must disclose evidence upon defense request where:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

Further, there is a continuing duty to disclose (Rule 16(c)), with penalties enumerated in Rule 16(d)(2):

(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;

(B) grant a continuance;

(C) prohibit that party from introducing the undisclosed evidence; or

(D) enter any other order that is just under the circumstances.

Well, let me tell you what the appropriate remedy here is. Dismissal. With prejudice; actually extreme prejudice. Then the offending agents and prosecutors ought to be immediately charged criminally. As the links to both my and Christy’s earlier posts evidence, this prosecution was already bad; it has now gone to heinously malevolent.

This is blatant intentional withholding by the prosecution of exculpatory evidence. I will repeat what I said in my earlier post, once more with feeling:

When you hear legal types discussing "Brady material" or "Brady evidence", this is exactly what they are describing. Under the seminal case of Brady v. Maryland (maybe we should ask Sarah Palin) the prosecution must disclose to the defendant any exculpatory evidence they possess. Failure to so disclose can result in the dismissal of a case.

The situation in Stevens’ case is awfully blatant and clearly exculpatory. It should result in at least a mistrial; if I were the judge I would bounce the entire indictment with prejudice. If a defendant can’t obtain relief on this fact set, then the theory in Brady v. Maryland has no meaning. Those judges in DC must be ready to explode over what this justice department has done over the last 8 years. The prosecution is in for a reaming of some sort either this afternoon or tomorrow morning. Stay tuned.

Stay tuned indeed, because if this case is not dismissed for prosecutorial misconduct and these malefactors prosecuted themselves to the fullest extent of the law, there is simply no justice left in this country. As painful as it is to say, Ted Stevens is no longer the issue here, the rule of law and the integrity of our justice system is now the issue. A powerful example must be made, and a clear, unequivocal message sent that our courts and justice system will not tolerate this kind of dishonesty and criminality for our government’s prosecutors and Department of Justice.

31 replies
  1. RevDeb says:

    It would seem to me that the Bush DoJ would have a vested interest in mucking up the case so their old buddy Toobz would skate. But that’s only my tin foil hat talking.

    • bmaz says:

      That seems to be a popular thought. It could be the case, but my guess is that it is just another instance of unethical prosecutors trying too hard to convict a big name defendant and make a mark for themselves.

  2. Palli says:

    Of all the abuses this Cheney/Bush criminal enterprise has conducted must it be this one that receives the justice it deserves. Padilla will never be whole again, the dead will never rise to forgive us, women have lost claim to their bodies, young soldiers have done what they should never even have seen…
    It always seems to be a win/win situation for those I know we not share their good fortune to be at the right time/right place.

    • bmaz says:

      The case is in the right posture to do it; it is as clear cut a set of facts as you are going to find and there are no national security implications to cowardly hide behind. Plus it just is the proper remedy for this egregious a level of misconduct, so, yes, it must be here. That doesn’t mean there should not be other cases with tough remedies meted out.

  3. rosalind says:

    thanks, bmaz. the amount of rot we have to cut out before our justice system can even begin to heal…

    most of all, thanks to the FBI agent who didn’t treat the FBI Core Values as words on a plaque on a wall, but values to be lived every day.

  4. Mary says:

    I agree on the dismissal for misconduct. Sadly, but that seems to be a normal state these days.

    I can’t say on the deliberately screwed up to give him grounds or not with any certainty, but almost everything from the complaint points to prosecutors out for themselves, not out to get Stevens off. If the complaint is credible on things like prosecutors getting artwork and employment for relatives, from witnesses who were getting deals cut to testify against Stevens,ummm no same lawyer is going to engage in their own criminal public corruption just to give Sen Ted a grounds for appeal.

  5. Arbusto says:

    Good lord, this case could set a FUBAR record! Investigators, lawyers & prosecutors need this disected and made a required course on avoiding multiple fuck ups on multiple levels by multiple departments. Good thing there’s no accountability in the DoJ or head would roll!

  6. radiofreewill says:


    Whistleblower lashes a vicious first-pitch shot through the hole into short right…

    …Prosecutor is rounding third and heading for home…

    …Anchorage fields the ball on the run…

    …it looks like we’ll have a play at the plate…

    …bmaz tosses the mask and fields the ball on a hot skip…

    …as Prosecutor starts her slide down the outside of the line…

    …bmaz turns to block the plate…

    …and twisting backwards reaches with his glove to…

    …shove Prosecutor’s cleats away from the plate!


    Way to Go, bmaz!

    If true, that’s some seriously bad judgment by the Prosecutor in the conduct of this strange case.

    I’m glad We’ve got you back-stopping the Rule of Law for US!

    • BayStateLibrul says:

      Great analogy… Bmaz inducted in the Legal Hall of Fame (veterans edition)
      Compiled by the Elias Sports and Legal Bureau.

  7. FrankProbst says:

    My solution:

    1. Charges are dismissed against Uncle Ted, as the prosecution was unbelievably tainted. The People may refile charges if they (we, actually) wish, and are encouraged to do so, since the only thing I heard from the trial that really convinced my of any wrongdoing was the testimony from Uncle Ted himself, and that can presumably still be used. I’d suggest a different prosecution team, because…

    2. Anyone and everyone who was involved in intentionally withholding evidence from the defense needs to be hit with every possible felony charge. Also, I have no idea what the legal definition of “witness tampering” is, but if squirreling someone off to Alaska doesn’t count, I don’t know what does.

    Ironically, I know have the exact same question for the prosecutors that I had for the defendant: “What the hell were you THINKING?!”

    • bmaz says:

      Once the charges are dismissed (as opposed to being set for a new trial) the case is over; they cannot be refiled because of the Constitutional protection against double jeopardy. And this is exactly what should happen; giving the government a second bite of the apple encourages malicious prosecution. Furthermore, jury pools are now going to be tainted.

      This is not about Stevens any more, this is about protecting the integrity of the greater rule of law.

      • FrankProbst says:

        giving the government a second bite of the apple encourages malicious prosecution.

        Respectfully disagree here. What encourages malicious prosecution is a failure to prosecute malicious prosecution. Any prosecutors who were involved in concealing evidence need to be dealt with both in court and in all of the appropriate professional organizations (I’m assuming this’ll get you disbarred.). And they should also be responsible for any of the legal fees (probably substantial) that Uncle Ted ran up.

        But frankly, I don’t see how throwing the case out would do much to stop malicious prosecution. If I’m a sleazy prosector, and I think I’m more likely to win my case by withholding evidence than I am to have my case thrown out for doing the same, then I’m going to withhold the evidence, and I’m going to do it again and again and again. If, on the other hand, I know that I’m running a very serious risk of losing my job and going to jail if I cheat, then I’m much more likely to play by the rules.

        Furthermore, I think that throwing out cases like this would actively encourage sleazy lawyers to deliberately taint cases in order to get people off. I don’t think that’s what happened here, but I think it sets a VERY bad precedent. Everyone has to play by the rules. Stevens didn’t, so I think he should be (re)prosecuted. The prosecutors didn’t, so I think THEY should be prosecuted, too.

        What I find ironic about all of this is that I thought the government started with a fairly weak case. Had I been on this jury, I probably would have voted “not guilty”…right up until I heard Stevens testify. At that point, I thought that he was so brazenly corrupt that there was simply no way I could have let him off, regardless of how tainted the rest of the prosecution’s case was.

  8. JohnJ says:

    This irony is painful:

    We finally nail a real crooked polititian by top notch investigative work; a Democratic Governor.

    We may finally see morally corrupt prosecution exposed and remedied and the guy that gets off is a Repugnant Senator.

    Sometimes I wish life would throw us a bone that wasn’t covered in fire ants.

  9. JohnJ says:

    This irony is painful:

    We finally nail a real crooked politician by top notch investigative work; a Democratic Governor.

    We may finally see morally corrupt prosecution exposed and remedied and the guy that gets off is a Repugnant Senator.

    Sometimes I wish life would throw us a bone that wasn’t covered in fire ants.

  10. freepatriot says:

    lemme see if I got this straight …

    to uphold the Constitution, I gotta defend TOOBZ ???

    Fookin Irony

    • Adie says:

      I couldn’t help wondering the same. AK “justice” [???]. How many others were bypassed by a potential whistle-blower?

      That and….. whut th’ bloomin’ hey is Stevens doin’ wearing a piece of clothing adorned wit’ a boid ONLY found in ANTarctica??? Well, I never!

  11. bmaz says:

    The case was prosecuted out of DOJ Main and DC UsAttys Office, no Alaska. These are big time folks that worked this pile of dung, not line level prosecutors in Alaska.

  12. DWBartoo says:

    Good morning, bmaz.

    “… the integrity of the greater rule of law.”

    As you explained to me, bmaz, a moon or so ago; the idea is that a ‘big’ case will show the rotteness of prosecutorial behaviors toward all and sundry … and that the ‘trickle-down effect’ will improve the ’situation’ for those who are neither wealthy, well connected, or esteemed politicians?

    Might I suggest, if there is no ‘consequence’ for those who have lately behaved very badly (Bu$h Co, the Wall Street Wisdoms, and whomever else one may wish to include as et cetera …), that the the ‘rule of law’, which we all hope and wish, one presumes, should obtain will remain a sorry joke.

    Should those who behaved badly, simply skate, then there will be other, very serious consequences.

    Trust has been utterly destroyed. And the ‘truth’ is a but a toy for Karl Rove to twist, bend, deny and use to stoke the already red-hot furnances of prejudice, arrogance and greed, with all the ‘help’ which the MSM can muster.

    No doubt, bmaz, you are correct that Justice would better be served by dismissal of all charges against Stevens.

    Have you any thoughts as to when the trickle-down ‘benefits’ might appear?

    I noted, the other day, a discussion concerning the fact that the Statute of Limitations on lying to Congress is five years. Given how complicity (from the MSM, and from the so-called ‘opposition party, among others) has served to hide truth for five or more years … and perhaps, considering the seriousness of the charges, unless lying to the public is acceptable in this ‘democracy’, and the use to which ’secrecy’ is put, might the ‘law’ (or those who formulate it) consider a ‘change’, or, by their ‘reasoning’, might such ‘change’ come around and bite THEM in the back end?

    I know my use of the term ‘joke’ will offend certain sensitive lawyerly ears, but if ’something’, showing that no one is above the ‘law’ dooes not soon occur, then the law will not only be a continuing joke, but an ass to boot …

    If the interests of society are not served well by their ‘institutions’, then I think it only fair to ask just who is well served. The Law and the Economy, as such institutions, deserve scrutiny AND change, not the assumption that flawed as they are, that that is the best we can mange to come up with, or that some deity has given us the ‘Institution’ and we dare not change it.

    The law should, one imagines, be of particular interest to the members of Congress, considering how many of them are lawyers. Without a doubt, they, personally, as individuals, are all very interested in the ‘outcome’ of the Steven’s case.

  13. darms says:

    All true, & as a ‘fan’ of the rule of law, I have to agree that Toobz should walk on this because of the egregious actions of the prosecutors. Yet in the previous post, we saw the the Fort Dix five convicted on a far flimsier case than what the Feds had against Toobz. Will their convictions be reversed?

  14. peterboy says:

    down below—

    please dont link to Coulter without warning.
    shocking and I violated my browsers virginity.

  15. hayduke says:

    I must say this is a problem for me bmaz. on one hand I concur completely with your view that the case be thrown out. But on the other hand, if the prosecution intentionally did this, and especially if they did it as ordered from on high, then it seems utterly without justice to let Stevens walk.

    what info other than my (and others)paranoia are in the record to date that could put in play any thought that the prosecutors screwed up on purpose on behalf of one of their own?

    remember dude, like Pynchon said, just because you’re paranoid doesn’t mean they’re not out to get you….

    • bmaz says:

      Legally, it doesn’t really matter what the motivation was for the misconduct on the part of the prosecution. It has served to deny Stevens due process; end of story.

Comments are closed.