When is a conviction a conviction? (UPDATED: 8:30 p.m.)

Posted by Alaska_Politics

Posted: October 31, 2008 - 11:16 am

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At the Thursday night debate. (ADN/Bill Roth)

From Kyle Hopkins in Anchorage --

After weeks of standing trial on criminal charges in Washington D.C., Sen. Ted Stevens was back in Alaska Thursday night for his first, and only, live TV debate before Tuesday’s election.

"I have not been convicted of anything," he told the cameras.

Stevens told voters he’ll be found innocent and he won’t step down.

"I have not been convicted," he repeated.

But didn’t a jury on Monday convict Stevens of seven federal felony counts? If that’s not a conviction, what is? It depends, according to legal experts, on your definition of "conviction." And there are at least two.

Law professors interviewed Friday agreed Stevens is technically correct. He won’t officially, legally, be considered "convicted" until his sentencing.

But as a practical matter, it’s misleading to tell the general public there was no conviction, said Laurie Levenson, a professor at Loyola Law School in Los Angeles.

"The senator’s playing a semantics word game," she said. "In everyday parlance in the criminal justice system, once the jury has reached a verdict, we generally say the defendant is convicted."

Stevens met his challenger — Anchorage Mayor Mark Begich, a Democrat — face-to-face in Thursday night’s public television debate. The cameras were still warm when the state Democratic Party issued a statement criticizing Stevens’ remarks.

"Stevens, a former U.S. Attorney, must not remember the definition of conviction from law school," it said.

Friday morning, Begich said Stevens is in denial.

"Senator Ted Stevens is not being honest with himself or the voters of Alaska and his mischaracterization of his conviction is outrageous," Begich said in a written statement.

The Stevens camp swung back later in the day, saying the verdict is just one step in the legal process that includes a pending call for a new trial and – if that doesn’t work – a likely appeal.

"It’s not semantics if your reputation and freedom are at stake," wrote Stevens campaign spokesman Aaron Saunders.

Stevens himself offered a more detailed explanation of what he meant when interviewed while campaigning on the Kenai Peninsula Friday afternoon.

"A conviction in my mind is when you finally had overruling of the motions made to set aside a verdict, or have a new trial and you’re sentenced. I think that’s the legal definition," Stevens said when asked about his remarks while campaigning in Sterling .

On Monday, a federal court jury found Stevens guilty of lying on financial disclosure reports. At that moment, he became a convicted felon, said Anchorage defense lawyer Rex Butler.

If Stevens were his client, Butler said, he’d tell him he can’t own guns any more.

Still, Stevens is able to vote in Tuesday’s election according to a state Department of Law ruling this week that his conviction isn’t final.

That’s because there’s two ways to view the law: The popular interpretation that you’re convicted when a jury declares you guilty, and a competing legal precedent that says the official conviction comes at sentencing.

Columbia law professor Daniel Richman was at the gym Friday morning when he heard Stevens had said he isn’t convicted yet.

"I actually smiled, because he’s right," Richman said.

Stevens and his lawyers say their battle isn’t over. They argue federal prosecutors manipulated evidence and tainted the trial, and are asking for another chance in court, or to have the charges dismissed.

Lawyers routinely file such post-verdict motions — which come before sentencing and are separate from appeals — but they almost never work, experts said.

"Of course he’s already convicted," said Stanford Law School Professor Robert Weisberg. "Because the chance of getting a conviction overturned in the very court in which you were convicted ... is close to zero."

Yet there’s still a chance, said Yale Law School professor Steven Duke.

"I know that the judge has made remarks, very disparaging remarks, about the prosecutors’ behavior, which is rather unusual," he said. "That would suggest that the judge will probably give serious consideration to a new trial motion."

If the motion fails, Stevens could appeal the ruling after sentencing. Senate Minority Leader Mitch McConnell said this week that there was a "100 percent certainty" Stevens would be voted out of the Senate if he loses on appeal.

Bill Canfield, a lobbyist, former Stevens aide and Republican election lawyer, said the appeals process could take 18 months. During that time, Stevens could hold on to his seat, he said.

That’s assuming the Senate lets him, and that Stevens isn’t sentenced to prison while he appeals the case.

Canfield argued that would never happen, given his longtime public service. "His friggin’ age, if nothing else. He’ll never go to jail."

Stevens is arguing he can serve Alaskans effectively as senator while future court appeals are being heard. But the Senate Ethics Committee, which investigates possible violations of Senate rules by members and makes recommendations, might not wait that long.

Ethics committee staff pointed to the 1981 precedent of Sen. Harrison Williams, D-N.J., the most recent senator to face expulsion after a felony conviction while in office. In that case, Williams was investigated as soon as the jury verdict came in, and faced an expulsion debate and vote a month after he was sentenced. He resigned, and his appeals ground on another 21 months.

Williams eventually lost the appeal and served 21 months in prison.

Along with Stevens’ efforts to get a new trial, he could also avoid conviction with a pardon from the president, said Duke, the Yale professor.

Pardons are rare too.

"But this is Ted Stevens," Duke said. "This is not Joe Sixpack. ... this is an extraordinary case."