Font Size: 
Alaska Sen. Stevens Takes Stand -- Will It Pay Off?
Legal Times
October 20, 2008
Senator Ted Stevens’ home has been searched by the FBI and IRS, investigating his links with an oil-services company.
Image: Stefan Zaklin/REUTERS
During jury selection, Alaska Sen. Ted Stevens and his lawyers heard prospective jurors say, over and over again, that criminal defendants should testify. "Of course," one woman said. "Everyone should."
Not surprisingly, those who voiced this conviction loudest were bounced from the jury pool. And yet Stevens, confident and at times agitated, took the stand last week to defend himself against charges that he lied on his Senate financial disclosure forms to conceal more than $250,000 in gifts and home renovations.
Leading up to his testimony, trial spectators made a parlor game of guessing whether Williams & Connolly partner Brendan Sullivan Jr. would put the famously blunt-spoken senator on the stand.
Notwithstanding his orthopedic sneakers and avuncular appearance, the 84-year-old senator is known to be a strong and at times intemperate personality. After 40 years in the Senate, Stevens is more accustomed to commanding respect than betraying humility, and that showed as he challenged the government's chief prosecutor for more than an hour on cross-examination Friday afternoon.
A series of blunders by the government -- U.S. District Judge Emmet Sullivan sanctioned prosecutors twice in as many weeks for withholding evidence and discovery material -- made Stevens' decision to testify even more fraught, defense lawyers say.
Why hazard an uneven performance when the momentum is swinging in his favor? Why distract the judge and jury from the government's self-inflicted wounds?
The answer, defense lawyers and jury experts say, points to an aggressive defense, an inviolate rule of juror psychology, and a trial that, improbably, is unfolding in the space of the defendant's own re-election campaign.
In any event, the calculus of the trial changed dramatically when Stevens took his seat between the judge and jury.
"Once the defendant testifies, then he becomes the center of the universe, and the jury is either going to believe him or not believe him," says Steven Braga, a partner at Ropes & Gray's Washington office.
UNEVEN STEVENS?
Stevens' testimony marks the culmination of a typically venomous defense by Williams & Connolly. Sullivan, with partners Robert Cary, Alex Romain, and Craig Singer, attacked prosecutors and their case in nearly equal measures.
Stevens is charged with seven counts of making false statements in a wide-ranging federal probe into Alaska politicians. Prosecutors say the roughly $250,000 in unreported gifts flowed primarily from the senator's longtime friend Bill Allen and his now-defunct oil services company, VECO. Allen, who pleaded guilty last year to bribery charges, was the government's chief witness, testifying that he financed the renovations because he liked Stevens.
Sullivan and his team sought to distance Stevens from "the chalet," as his home in Girdwood, Alaska, is known, while throwing prosecutors off their footing with four motions to dismiss the case for misconduct.
Judge Sullivan, who dressed down prosecutors on three different occasions, instructed jurors mid-trial to ignore key evidence because "the government had an obligation to provide certain information to the defendant and it did not do so."
In the past two weeks, the defense trotted out five character witnesses, including former Secretary of State Colin Powell and Sens. Orrin Hatch, R-Utah, and Daniel Inouye, D-Hawaii.
The defense also called Stevens' wife, Catherine Stevens, a Mayer Brown partner, who testified that she paid all the bills for the renovations and that the couple rarely visited their home in Alaska, relying on a friend to keep them informed on the progress of the work there. The Justice Department's Brenda Morris, principal deputy chief of the Public Integrity Section, grilled Catherine Stevens about using a Senate staffer to manage her personal bills.
And then the defense called Stevens, the first sitting senator in nearly 30 years to testify in his own defense at a criminal trial. For two hours Stevens testified about his private life and his public service -- his years in Congress, his stint as U.S. Attorney for Alaska, and his record as a pilot in World War II.
But when the government got its turn, Stevens was combative. He challenged Morris. "You're making a lot of assumptions that are unwarranted," Stevens declared as Morris explored the friendship between Allen and Stevens. Stevens responded "What?" in response to questions from Morris more often than on direct examination. On direct, he routinely looked at jurors when he answered questions from his lawyer.
Morris questioned whether Stevens is truly a "lion" in the Senate if he could not call the shots and confront his friend Allen, whom Stevens on direct examination called a liar. The defense team wants jurors to believe that Allen dominated Stevens.
When Stevens could not remember a year in which metal stairs were installed at the house, he declared to Morris: "I'm not going to get into a numbers game with you." And another exchange: "You're not listening to me," he told Morris. "Sir, I'm just trying to get a straight answer," the prosecutor responded.
Stevens said he asked for bills and never got invoices. The couple said they paid all the bills the family received. "I report gifts, not things I paid for," Stevens said. Morris declared Stevens was "covering his butt" when in e-mails and letters he asked for bills. Stevens denied the charge, saying: "My bottom was not bare."
Stevens, who serves on the Senate Commerce and Appropriations committees, said he never asked upfront how much the renovation work would cost because that's not the "Alaskan way." In Alaska, Stevens explained, work is performed, a bill is submitted, and it is paid. Contracts, he said, are not part of the deal in Alaska.
Stevens was on the stand Friday for more than an hour before the trial recessed. Cross-examination resumes Monday; government lawyers do not plan to call any rebuttal witnesses.
RISKY BUSINESS
Trial experts disagree over the wisdom of putting Stevens on the stand.
"The absolute rule is that jurors want to hear the defendant testify," says Arthur Patterson, a Florida-based social psychologist and jury consultant. "Unless the problem is that your client is a double ax murderer, put him on and let him make nice with the jury."
Barbara "Biz" Van Gelder, a partner at Morgan, Lewis & Bockius, says the risks were profound but notes that, in false statements cases, it's difficult to shield the defendant from the jury.
"When intent is an essential element of the crime, it's very difficult not to put the witness on the stand," Van Gelder says. "I think the jury expects to hear that side of the story."
David Schertler of Schertler & Onorato, a former federal prosecutor, says he was surprised Stevens took the stand, given the strength of the defense's case leading up to his testimony.
With the character witnesses and the cross-examination of Allen, "the defense has laid the basis for its case that Senator Stevens did not lie," Schertler says.
On the stand, Stevens raised and lowered his voice and appeared flustered at one point -- taking a drink of water after an intense 10-minute back-and-forth with Morris. When Stevens made members of the courtroom gallery laugh, few jurors cracked a smile.
But some measure of churlishness could strike the jury as authentic, says Patterson, a senior vice president with DecisionQuest, a litigation consulting firm.
"If they perceive that you're acting, then you lose credibility. So there's a fine line where you have to get a little feisty in defense of your good name. But it's a very fine line," he says.
Stevens' testimony comes at an inauspicious time. Congress' persistently low approval rating has dipped amid the financial crisis, and Alaska Gov. Sarah Palin, who enjoyed broad support shortly after her debut as the Republican vice presidential nominee, has seen her popularity drop in polls. None of this will be lost on the jury in the District -- the city carries a well-earned reputation for being hard on politicians accused of crimes, Patterson says.
"A defendant's testimony is a very complicated moment in any trial, but this is wildly complicated," he says.
But Stevens' testimony also presents a political opportunity for the senator, who has been absent from his re-election campaign during the trial. (He is in a dead heat with Anchorage Mayor Mark Begich, 49 percent to 48 percent, according to the latest Rasmussen poll.)
In addressing the jury, Stevens has a chance to connect with his constituents. "In this case the conventional wisdom is turned on its head," says David Bartlett, a specialist in crisis communication.
Normally, defendants project different personas in their public life and their criminal trial. But Stevens has blended the two amid a tight re-election campaign, says Bartlett, a senior vice president at Levick Strategic Communications. "He's trying to make a case in trial that will play equally well in the court of public opinion."
