Last time, after describing hearsay evidence, I told you that today’s post would tell the story of how inadmissible hearsay evidence convicted a United States Senator and ended his career.
The Senator was Ted Stevens of Alaska. The six-term Republican senator was a Washington D.C. powerhouse when he was indicted in 2008 for failing to report gifts as required by federal law. Stevens accepted more than $250,000 of work on his Alaska home from a friend and did not pay for the work. Even though the friend, Bill Allen, had received millions of dollars of federal government work while Stevens was chairman of the Senate Appropriations Committee, Stevens was not accused of accepting the work as a bribe. He was charged merely with failing to report the work on his Alaskan house as a gift, a less serious crime, but a crime nonetheless.
The case turned on a single piece of evidence, a note that Senator Stevens had written his friend Bill Allen. The note read,
Thanks for all the work on the chalet. You owe me a bill – remember Torricelli, my friend. Friendship is one thing – compliance with these ethics rules entirely different. I asked Bob P to talk to you about this so don’t get P.O.’ed at him – it just has to be done right.
(Torricelli was the N.J. Senator forced from office for accepting gifts. “Bob P” was a mutual friend of Stevens and Allen whose full name is Bob Persons.)
Stevens’ lawyer – more about him later – wanted that letter in evidence because it tends to prove that Stevens did not intend to commit the crime, he just forgot that Allen never sent him a bill. (I know. It seems hard to forget that you’ve had a quarter of a million dollars of work done on your house and that you haven’t paid for it, but we’re not United States Senators.) So Stevens’ lawyer starts out wanting to get that letter into evidence. (For those of you who are thinking: “Wait a minute. Isn’t that letter itself hearsay? Kudos. But that is not the piece of evidence we’re concerned with right now. The letter was admitted into evidence by the Government, so Stevens’ lawyer was spared the necessity of arguing to the contrary.)
And now we come to the interesting part. Another piece of hearsay and one that could destroy the usefulness of the letter Stevens wrote requesting a bill for the work. The Government called Bill Allen to testify. Remember that Stevens’ letter said that Bill Persons was going to talk to Allen about the bill. Here is the testimony from Allen in response to questions asked him by the Government’s lawyer:
Q: Did you send Senator Stevens a bill or an invoice after you received the note from him?
Q: Mr. Allen, do you remember having a conversation with Mr. Persons after you got the note from Senator Stevens?
Q: What did Mr. Persons tell you?
A: He said oh, Bill, don’t worry about getting a bill. He said, Ted is just covering his ass.
Boom! Lightning strikes Senator Stevens. The letter that was to save him now looks like part of an illegal scheme.
We’ll skip, for the moment, what Stevens’ lawyer was doing during that exchange and examine the answer to see if it is hearsay. Whose statement is it? Mr. Persons. Is Mr. Persons on the witness stand? No, it’s Bill Allen. Was Persons’ statement made outside the courtroom? Yes. What does the statement say? It says that Senator Stevens doesn’t really expect to pay for the work; that he knows it’s a gift. What is the statement offered to prove? That Stevens expects no bill. Hearsay? Yes! It is an out-of-court statement offered to prove exactly what it says.
The jury convicted Senator Stevens and he lost his re-election campaign shortly after.
Stevens’ conviction was not the end of the story. We’ll return to that next time and we’ll wonder why Stevens’ lawyer didn’t erupt from his chair objecting to the hearsay. If you can’t wait and have a New Yorker subscription you can read about the aftermath of the trial in Jeffrey Toobin’s article in the New Yorker. (Toobin tells you about the aftermath, not about Stevens’ lawyer’s inexplicable failure to object. For that discussion, you’ll have to wait for me to stop scratching my head and start typing.)