WASHINGTON — At least two federal prosecutors involved in the botched ethics trial of the late Sen. Ted Stevens “intentionally withheld and concealed” significant evidence from the defense team that could have resulted in his acquittal, a court-appointed investigator has concluded.
In a 514-page report made public Thursday, the special investigator said he had uncovered evidence that would “prove beyond a reasonable doubt” that two members of the prosecutorial team in the 2008 trial, Joseph W. Bottini and James A. Goeke, had deliberately kept exculpatory information from Stevens’ defense team.
But the report said that because the federal judge overseeing the trial, Emmet G. Sullivan, had not specifically ordered the government lawyers to turn over any such materials to the defense, as they are required to do by law, they could not be prosecuted for criminal contempt of court.
“Were there a clear, specific and unequivocal order of the court which commanded the disclosure of this information, we are satisfied that a criminal contempt prosecution” would be appropriate, the investigator, Henry F. Schuelke, and a colleague who assisted him, William Shields, concluded.
The report made no conclusions about the actions of Nicholas A. Marsh, a third prosecutor who worked closely on the case, citing his suicide in 2010 as a reason for silence.
But it largely exonerates several other prosecutors involved in the case, including William M. Welch II, the former chief of the Justice Department’s public integrity section, and Brenda Morris, his former deputy, who became the lead prosecutor just before the trial. Both were reassigned after the case collapsed.
Brendan Sullivan, the defense lawyer who represented Stevens, said the report “confirms that the prosecution of Sen. Ted Stevens was riddled with government corruption involving multiple federal prosecutors and at least one FBI agent.”
Matthew Menchel and Kenneth Wainstein, lawyers for Goeke and Bottini, criticized the report, saying it concluded that the trial team’s mistakes had been intentional without providing “hard facts or sound legal analysis,” as Wainstein wrote in a letter to Attorney General Eric H. Holder Jr. He said it was not fair to air such “conclusory statements” when there would be no trial to test the evidence.
The Justice Department’s own investigation into whether any professional misconduct took place is not yet complete.