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Discovery Dispute Hubbub At Sen. Ted Stevens’ Trial

There is a discovery dispute hubbub in Sen. Ted Stevens’ trial:

Williams, the on-site foreman at the Stevens home as major construction took place starting in the late 1990s, spent hours with prosecutors in Washington last week preparing to take the stand. Prosecutors then told him he could return to Alaska without testifying, supposedly because of health problems. He remains under subpoena and the defense plans to call him as a witness next week.

Neither the judge nor defense counsel were consulted prior to his departure.  And this:

Prosecutors said it was an honest mistake when they waited until late Wednesday night to turn over FBI reports about interviews with the government’s star witness, oil pipeline contractor Bill Allen.

But especially this:

The new evidence involved an interview that had been turned over to the defense, but the key part of what Allen said — that the couple would pay if they had been sent a bill — had been blacked out.

Blacked out — why and by whom? THAT is going to be key. It’s bad for the prosecutors — no question. It’s also idiocy that they didn’t notify the judge or defense counsel before releasing their witness.  More from the WaPo as well.    

Is any of this fatal to the case? It can depend, but blacking out potentially exculpatory information from a key witness does not look good.

Discovery questions can be tricky in any criminal trial: How material is the evidence?  How much information are we talking about?  Does it tend to exonerate Stevens by raising a reasonable doubt?  What explanation is there for the failure to turn it over earlier?  All questions the judge will ask.

Federal Rules of Criminal Procedure Rule 16(a)(1)(E) 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.

My guess? If it was an inadvertent error on the government’s part — and they claim it was  — and the government shows they turned it over instantly upon discovery of the error?  Then there will be time to review the material, potentially a sanction of limited use of the information for the government, a curative instruction if it is at all possible.  Unless there is evidence of deliberate misconduct by the government — and the blacking out of that information certainly raises that question, doesn’t it?  

But a dismissal isn’t granted easily.  Why do I say this?  Because a trial is an expense to the taxpayers, and judge’s don’t like to have to backtrack unless there is a sound reason to do so.

Remember during the Libby trial when Ted Wells pulled his "we didn’t get original discover on Cathie Martin" stunt for Judge Walton, only to find that the "huge amount of discovery, boxes and boxes" that he was going on and on about in his motion were really a stack of papers less than an inch thick, and he already had legible copies of them? And that Team Libby had over a year to request viewing originals and had not done?  Wells’ overplayed the drama act, and Judge Walton let him have it.  

Lesson here?  Never confuse solid evidence with courtroom drama.

There is always a lot of information you don’t get to know until the motions and evidence therefor are laid before the judge. You rarely get a dismissal of a case absent substantial evidence of deliberate prosecutorial misconduct.  Plus, Stevens’ lawyers pressed for a quick trial, so that’s a mitigating factor.  The judge will go over the documents and testimony in question in chambers, and any supporting information for motions. Let’s see what happens this afternoon — hearing is set for 4:30 pm ET. Should be interesting…

UPDATE:  WaPo reports that there was testimony elicited by the government from Bill Allen that Stevens did request a bill.  Could be mitigating, since the jury has that information directly through testimony, but there may be a call back for Allen for further cross-exam as a curative measure.  We’ll see.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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