In the Courts

On Nov. 21, 2011, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia announced the highly anticipated results of a special investigation into prosecutorial misconduct during the trial of the late Sen. Theodore F. Stevens (R-AK). In Re Special Proceedings, — F.Supp.2d—, 2011 WL 5828550 (D.D.C. Nov. 21, 2011). In 2008, Sen. Stevens was found guilty of making false statements in violation of 18 U.S.C. ' 1001(a)(1) and for failing to make required disclosures of gifts in Senate Financial Disclosures ' 1001(a)(2). Id. at *1. Following his trial and conviction, the Department of Justice (DOJ) acknowledged prosecutorial misconduct, including instances of failure to provide exculpatory evidence to the defense in violation of the government's obligations under Brady v Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). Id. In April 2009, the DOJ moved to set aside the verdict and dismiss the indictment.

The court granted the government's motion and appointed Henry F. Schuelke, III to conduct a special investigation into misconduct by the six DOJ attorneys on the prosecution team and, if appropriate, to prosecute those attorneys in criminal contempt proceedings. See Order Appointing Henry F. Schuelke, United States v. Stevens, No. 08-cr-231 (D.D.C. Apr. 7, 2009). In November 2011, Schuelke presented his findings to the court in a 500-page report submitted for in-camera review. In Re Special Proceedings, 2011 WL 5828550, *1. The court described the investigation as consisting of numerous interviews, including 12 depositions, along with review of more than 150,000 pages of documentary evidence. Id. The Schuelke report concluded that the prosecution of Sen. Stevens was “permeated by the systematic concealment of significant exculpatory evidence,” at least some of which was willful and intentional. Id. at *2.