Was the Massage Chair Sen. Stevens’s ‘Photofete’ Moment?

[WSJ_law_blog]

Ted Stevens and his attorney, Brendan Sullivan, leave court in Washington, Oct. 27, 2008, after a guilty verdict was returned by the jury at his trial. (AP/Gerald Herbert)


With the sentencing date delayed until after a February 25 hearing on motions, we’re going to put Ted Stevens to bed for awhile. But before we shut off the lights, let’s spend a brief moment looking ahead at what the appeal process could bring.

Stevens and his lawyers have two options, neither of which look good. He can move for acquittal notwithstanding the verdict, arguing that the evidence was insufficient for a reasonable jury to have convicted him. Or, he can move for a new trial, arguing that constitutional violations by the government deprived him of a fair trial the first time around.

Both are long-shots, says McKee Nelson’s Michael Levy. Even though Judge Emmet Sullivan has expressed concern about the government’s conduct in the case, the court’s already gone through the time and expense of a trial. Another reason for Judge Sullivan to deny a retrial: The court of appeals, if it sees fit, can grant a new trial on appeal.

Here’s what the appeal will likely look like: The defense will argue that there were flagrant Brady violations — that the government withheld information that contradicted its theories and that Stevens’ case was prejudiced as a result. The government, in turn, will say that even if the failure to disclose the information was a violation of Brady, it was harmless error because Stevens would’ve been convicted anyway.

But, perhaps more important than squabbling over Brady is the government’s argument that, in the end, the jury simply believed VECO founder Bill Allen and didn’t believe Stevens.

According to Levy, that argument is a powerful one. After all, the trial was going well for Stevens during much of the government’s presentation of evidence. But then the tides turned, ironically, when the defense began to put on its case. “As an observer,” says Levy, “what you’re left with is that even the minutest points of Stevens’ testimony dramatically exceeded the impact of most, if not all, other testimony in the trial.”

Take the massage chair, for instance. On the stand, Stevens, rather awkwardly, explained it as a seven-year loan rather than a gift. “The idea that someone could loan a massage chair for seven years and have it not be a gift probably impacted the jury more than the testimony by Stevens’ wife, by Colin Powell, or even the testimony by Bill Allen, which had a number of inconsistencies,” says Levy. (It’s notable that Stevens’s wife, Catherine Stevens, a prominent Mayer Brown partner, also testified that the chair was a loan.) In other words, those other areas of testimony that could’ve benefited Stevens’ case became marginalized when he took the stand.

Want some historical context? The most loyal of Loyal Law Blog Readers will remember the names “Photofete” and “Jennifer Binder” from the trial of Enron’s Jeff Skilling and Ken Lay. In a gotcha moment, then-prosecutor Sean Berkowitz launched into an extensive cross-examination of Skilling’s relationship with Binder, a photographer who dated Skilling, was a subcontractor at Enron and founded Photofete. “It had absolutely nothing to do with the major issues in the case,” recalls Levy. “But the government used it to pound away that if Skilling wasn’t being credible about that, then he wasn’t credible about anything else.” The massage chair might have been Ted Stevens’s Photofete moment.

A call to Stevens’s lawyer, Brendan Sullivan, was not immediately returned.