Great Lawyers and Hearsay

Stevens' Mug Shot (Public Domain)

We left off last time after Alaskan Senator Ted Stevens was convicted of the felony offense of failing to report a $250,000 gift, on the basis of hearsay evidence. Remember the note that Stevens wrote to Bill Allen whose company performed $250,000 of work on Stevens’ home and was never paid for the work:

Dear Bill,

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.

This time we pose the question of what was his lawyer thinking when that piece of evidence reared its head.

Here again is the transcript:

Q: Did you send Senator Stevens a bill or an invoice after you received the note from him?

A: No.

Q: Mr. Allen, do you remember having a conversation with Mr. Persons after you got the note from Senator Stevens?

A: Yes.

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.

Bill Allen testifying about something that Bob Persons told him. Textbook hearsay evidence. And look at the third question. A lawyer representing Stevens would need to be comatose or dead not to rear up and object to that question before Allen had a chance to answer it. A second-year law student would not have missed that objection. You wouldn’t have missed it.

But Brendan Sullivan, Stevens’ lawyer missed it. Sullivan, experienced and prominent Washington D.C. lawyer, sat on his hands and did not object. And the answer destroyed his first-line defense – that Stevens intended to pay for the work on his Alaskan chalet.

I don’t have an answer for this mystery nor have I seen any more of the trial transcript than you have. It may be that this piece of evidence and Sullivan’s objection to it was made outside the presence of the jury, but I doubt it.

One more thing you should know: the government did not disclose to Stevens’ defense lawyers that Allen was going to testify that Bob Persons had told him that the note was just a “CYA” effort. The government’s failure to disclose that news was the primary reason why the trial judge – with brand-new Attorney General Eric Holder in complete agreement – dismissed the entire case against Stevens on the basis of prosecutorial misconduct. The felony conviction was wiped from the record, although too late to help Stevens in his re-election campaign in which he was defeated.

But that just makes the failure to object to the question, “What did he tell you?” even worse. Sullivan was sitting there, a question clearly asking for hearsay evidence is asked, he doesn’t know in advance what the answer is and he just sits there? Most lawyers would have come out of their seats to object so fast that someone would have to scrape them off the ceiling.

But Sullivan is an eminent, successful D.C. lawyer. He may have had some plan in mind that so far exceeds my poor ability to grasp it, that I should be embarrassed for raising the question. But I doubt it; I think he just screwed up.

O.J. Simpson Mug Shot (Public Domain)

That thought leads me to the last observation I’ll make about the Stevens case. It was, obviously, a high-profile, news-worthy case. A phenomenon about such cases that I have noted over my career is a need on the part of news media to assume that any lawyer involved in such a case must be the cream of the crop. Remember O.J. Simpson’s “Dream Team?” Competent lawyers, without doubt, but incompetence of the prosecutors and, especially, the judge, explain why Simpson was acquitted of murder. The same thing is happening now with the lawyers involved in the Tuscon murder case. The lead defense lawyer apparently is a genius and the lead prosecutor is right up there with her. That might be true, maybe those two lawyers are the greatest lawyers in the history of the American bar. More likely? They are just as good as thousands of lawyers all across the land who are in court as I write this, doing their jobs competently, without the media taking the slightest notice.

And I’m betting that every one of them would have objected to the question, “What did Mr. Persons tell you?”

 

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