Defense lawyers and their clients routinely face this dilemma: Take a plea for leniency, or roll the dice with a jury. The Ted Stevens case was no different.
Stevens was offered a deal -- sometime before his indictment in July -- to plea to one felony and stay out of prison. Stevens' lawyer, Williams & Connolly partner Brendan Sullivan Jr., said the deal was rejected, according to a transcript of a bench conference that had been sealed until now. Sullivan did not elaborate about the decision to reject the offer.
"I'd like to make it clear on the record that there is no offer at this point," said Brenda Morris, principal deputy chief of the Justice Department's Public Integrity Section, who spoke at the bench conference July 31 in U.S. District Court for the District of Columbia.
"That's true," Sullivan responded.
"Is that alright?" Morris asked.
"And if one is made, it will not be accepted," Sullivan replied.
Stevens opted for speedy trial, forcing the government to put together its case in a compressed time frame. Stevens, of course, lost. A jury returned seven guilty verdicts in late October just days before the November election. A sentencing law expert says Stevens faced a likely prison term had his case gotten that far. A sentencing date was never set.
At the request of the Justice Department, U.S. District Judge Emmet Sullivan last week dismissed charges and vacated the verdict. Judge Sullivan cited prosecution misconduct, saying he'd seen nothing in nearly 25 years on the bench approaching the mishandling of the Stevens case. Morris and five Justice prosecutors -- including William Welch II, the Public Integrity chief -- are now under investigation for criminal contempt.
Cozen O'Connor partner Barry Boss, who specializes in white-collar criminal defense work, says if Stevens had taken a plea -- more than 90 percent of federal defendants do just that -- none of the alleged abuses in the case would have ever come out.
"The Stevens case is a watershed event highlighting something that goes on in many more cases," Boss says. "Many other defendants would have probably taken a plea like that to get the case over with. If that had happened, then none of this would have been uncovered."
The client, Boss says, is the driving force behind whether or not to accept a plea. Stevens had made it clear before, during, and after the trial that he did not believe he was guilty of charges of filing false Senate financial disclosure forms.
Last week, court officials unsealed the bench conferences in the Stevens case. The opposing lawyers talked about a variety of matters, including speech or debate immunity and jurors who said they had conflicts.
Remember Juror No. 4 -- the woman who left the panel abruptly, saying her father was ill? Brendan Sullivan was incredulous. "She just up and left? I mean, she just disappeared?" Yes, she did. And her father wasn't dying or dead. The woman wanted to attend a horse race in California.
At the time, Brendan Sullivan was insistent that an alternate juror not be installed on the panel. He wanted an 11-person jury. Sullivan said juries don't just start over from scratch. That prompted this response from Judge Sullivan: "It's not fantasy. It happens."
"No, I know, but it's not realistic. Jurors don't do that. You can't wipe out two or three days of deliberation and start fresh. Human beings don't do that," Brendan Sullivan responded, according to a transcript.
The judge put Juror No. 11 on the panel, and the jury returned hours later finding Stevens guilty.
This article first appeared on The BLT: The Blog of Legal Times.
