(Excerpt from "Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens" by Rob Cary)
At 9:27 on the morning of Thursday, Sept. 25, 2008, the fourth day of United States v. Stevens, the jury had been selected, the pretrial motions had been ruled upon and opposing counsel were ready with their opening statements.
Seated at two large tables in front of Judge Emmet G. Sullivan were the prosecution and the defense teams. For the government were Brenda Morris, Nicholas Marsh, Joseph Bottini and FBI Special Agent Mary Beth Kepner. The four Williams & Connolly lawyers were Brendan Sullivan, Alex Romain, Beth Stewart, and me. Sen. Ted Stevens sat with us.
The government, as is the custom, opened first. Brenda Morris stood at a podium facing the jury and began to read from a typewritten script. She lost no time in getting to what she must have considered the heart of the matter, stating, in an authoritative tone, "This is a simple case about a public official who took hundreds of thousands of dollars' worth of free financial benefits and then took away the public's right to know that information."
Gesturing toward the senator, she continued, her attitude and her tone becoming increasingly sarcastic, "... he took away the public's right to know this information by repeated false statements he made on his public financial disclosure forms filed year after year after year with the United States Senate. The public, this public official, the defendant, did these things so that the free financial benefits that he was receiving would not have stopped and the public would never have to know."
Continuing to read her script, she said: "Ladies and gentlemen, this case is about concealment. It's about the defendant hiding things from the public, valuable things, a few thousand dollars here, a couple hundred thousand dollars there, things that the defendant received from friends and benefactors who were the powerful. The defendant hid these things so that the public wouldn't know that he had gotten them, and, more importantly, so the public wouldn't know who he had gotten them from. It's about this defendant's knowing and intentional decision to conceal that information, that one of the heads of the largest companies in Alaska, as well as other prominent friends, gave the defendant more than a quarter-million dollars' worth of financial benefits that the defendant never paid for, and that the defendant decided the public just didn't have to know ... The public had a right to know this, but the defendant said no, and instead he decided to violate the law.
"Now, the indictment charges the defendant with seven separate counts. You'll hear more specifics about each of those counts at the end of the trial, but to sum it up, the indictment charges that the defendant had a scheme to conceal from the public the valuables he received and that the defendant knowingly and repeatedly omitted and falsely represented valuables he received on six different financial disclosure forms, one a year, from 2000 through 2006. Each form is filed with the United States Senate, and each, he swore, was accurate and true."
Morris continued to read:
"The defendant is a career politician," she said, making the last two words sound like a crime. "He has been a member of the United States Senate for over 40 years representing the state of Alaska."
That was another dig, but it was what she said next that infuriated me.
"Ladies and gentlemen, you do not survive as a politician in this town for that long without being very, very smart, very, very deliberate, very, very forceful, and at the same time knowing how to fly under the radar ...
"The government's evidence will demonstrate that the defendant clearly knows how to get things done with little said. He can be very subtle. The defendant trusts few, and the evidence will show that those he trusts are very, very loyal to him. They know how to get things done for the senator subtly. That's the way he wanted it.
"Now, during this case, ladies and gentlemen, I'm going to tell you what the government will prove that defendant received, then ... I'm going to tell you how the defendant concealed the receipt of all these things from the public.
"First, the unpaid financial benefit. In this trial you will see proof of a lot of benefits that the defendant received from multiple separate and independent sources, including companies and personal friends. Now, the biggest unpaid financial benefit, not just in terms of dollar value but just in sheer extravagance, is the major assistance the defendant received to complete and transform his house in Girdwood, Alaska."
Brenda Morris spoke for another half an hour or so. She painted a picture of a corrupt politician who schemed to use his office to receive gifts that he then hid from the public. Morris referred to Ted Stevens as "the defendant" 145 times, because that made him sound guilty. She only called him Senator Stevens 11 times. She closed by saying, "At the conclusion of this case, ladies and gentlemen, I will come back to you and I will ask you to find the defendant, Ted Stevens, guilty of a scheme to hide the truth through repeated false statements ... because as you will see, he made a choice. He made the choice to repeatedly violate the law, and that's simply why we're here, ladies and gentlemen."
* * * * *
Following a 15-minute break, lead attorney Brendan Sullivan gave the opening statement for the defense. He began by thanking the jurors for their service — and for not trying to get out of jury duty — and by explaining to the jurors why he had to wear a microphone clipped to his jacket lapel (so he could be heard by the people in the overflow courtroom). And then he got down to business, in his characteristic common sense, professional way.
"At the end of the day I'm going to ask you for a verdict of not guilty because the evidence will show he is not guilty. Our effort here today is to give you a little preview of the evidence, and as you can imagine, sometimes people's view of the evidence differs dramatically.
"We've seen that in our own lives. If anyone has been around children, you hear one story from one child and you hear another story from another child that's so different. I'm going to tell you a different story. I'm going to tell you the story that the evidence actually shows that Ted Stevens had no intent to violate the law, he had no intent to make any false statements. He intended to file accurate statements, and he did file accurate statements to the best of his knowledge.
"Why all of a sudden in his 85th year of life on this earth did he decide all of a sudden to go out and become a criminal and file false statements? The evidence will show he did not file false statements. And the evidence of intent, which is what you'll be looking for here, is found in many, many ways."
For the next half hour or so, Brendan carefully listed those ways, but the heart of his opening was the Torricelli note — the note that said, "It just has to be done right," the note that we thought was so helpful to the defense.
(The so-called Torricelli note was one Stevens wrote to chief prosecution witness Bill Allen, the head of VECO: "You owe me a bill. Remember Torricelli, my friend. Friendship is one thing, compliance with the ethics rules entirely different." Torricelli was a New Jersey senator who improperly accepted gifts without paying and was admonished by the Senate and withdrew from the New Jersey Senate race a week before the Stevens note.)
Brendan quoted it word for word. He said, "It jumps off the page and grabs you by the throat to show you what the intent of Ted Stevens was." Everybody in the courtroom must have known that we thought it was the most important evidence in the case.
He ended by saying, simply: "At the end of the case, I'm going to come back here — I have one more time to talk to you, fellow citizens, one more time — and I'm going to ask you to free him from this burden, send him right out that door, because there's no evidence by which the government can convince beyond a reasonable doubt that he intended to commit a crime ..."
And that is exactly what should have happened, except for one thing. The government broke the rules.
Rob Cary is a partner with Williams & Connolly LLP in Washington, D.C., one of Sen. Stevens' lead lawyers and the author of the new book "Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens."