A new book about prosecutorial misconduct opens with a grisly story about the suicide of Nicholas Marsh, a prosecutor involved in the botched case against Senator Ted Stevens.
Marsh, 37, was being investigated for possible misconduct in the Stevens case when he slashed his wrists and hanged himself in Washington, D.C. in September 2010. Marsh's lawyer said after his death that his client felt burdened by the aftermath of the Stevens prosecution.
However, Justice Department lawyers above Marsh's level were also responsible for the misconduct in the Stevens case, former prosecutor Sidney Powell asserts in her sweeping new indictment of the Justice Department, "Licensed to Lie."
"Nicholas Marsh, a brilliant, capable young man, paid the ultimate price for something that should never have happened," Powell writes. "He was shattered - by his own choices and those imposed upon him."
Powell argues that the forces that helped destroy Marsh were part of an increasingly rabid and unethical Justice Department that evolved after the collapse of Enron. The main problem with the Justice Department, she argues, is what one judge called "an epidemic of Brady violations in the land."
Powell writes that federal prosecutors often break the so-called Brady rule, which requires them to turn over evidence that could work in the defendant's favor during the discovery phase of a case (when each side of a case turns over evidence to the other).
In the case of longtime Alaska Senator Ted Stevens, the Justice Department asked to have his conviction voided in 2009 after it learned that prosecutors had not turned over favorable evidence, including evidence that called into question the integrity of the star witness for the prosecution.
Stevens was convicted of corruption in 2008 for accepting undisclosed gifts from an oil executive, Bill Allen, including an elaborate home renovation worth an estimated $250,000.
However, prosecutors neglected to turn over an interview with Allen in which he said the renovation was worth only $80,000, according to a 525-page independent investigation of the prosecution by special prosecutor Henry "Hank" Schuelke III (which came to be known as the Schuelke report).
The investigation found prosecutors failed to turn over a number of other records that could have been favorable to the defense, including evidence that questioned Allen's credibility.
Even though the conviction was voided in 2009, it still cost Stevens the election in '08. A couple of years later, Stevens died in a plane crash as his prosecutors themselves were under investigation. Stevens' death and the protracted probe into his prosecution weighed heavily on Nick Marsh. From Powell's book:
The senator's death and the tsunami of renewed publicity of prosecutorial and government misconduct was drowning Nick Marsh. He could hardly breathe. It was all he could do to get up in the morning and go to the back office to which he had been relegated at the Department of Justice. Nick felt heavier and heavier. He was on the verge of losing his career and possibly his liberty, and he felt as if he had lost his soul. He didn't recognize himself anymore.
The book went on to say Marsh "feared that everything that went wrong in the Stevens prosecution was going to be hung around his neck."
In "License to Lie," Powell pins some of the blame for the Stevens case on two lawyers who weren't formally investigated - Matthew Friedrich, who was assistant attorney general of the Justice Department's Criminal Division at the time of the Stevens prosecution, and his deputy at the time, Rita Glavin. Friedrich and Glavin were brought into the Stevens case relatively late in the game - about a month before he was formally indicted in July 2008. From Powell's book:
Friedrich and Glavin took control of the Stevens prosecution and micromanaged it to absurd detail. On the eve of the indictment, they demoted Marsh from first chair to third chair for Stevens's trial. After Friedrich and Glavin took over, the prosecution had nothing but problems ...
The Schuelke report noted that William Welch, former chief of the Public Integrity Section of the Justice Department, blamed Friedrich and Glavin for making decisions that "adversely affected the case." Specifically, Welch blamed them for bringing in the seasoned prosecutor Brenda Morris to be lead prosecutor just before the trial.
While Welch, and Powell, are quick to blame the top DOJ lawyers who came into the Stevens case relatively late, problems with the prosecution long began before they ever arrived. The prosecution's star witness, Bill Allen, also provided key testimony in two earlier trials from 2007 that were used to help build the case against Stevens and were part of a larger probe into Alaska corruption known as "Polar Pen."
In one of those cases, Alaska state representative Pete Kott was convicted of illegally accepting favors from Allen's corporation. The other convicted ex-Alaska state legislator Vic Kohring of accepting similar favors. Friedrich, Glavin, and Morris weren't involved in those convictions, both of which were vacated after courts found prosecutors engaged in the same discovery violations that undid the Stevens case.
Here's what Glavin had to say in an email message to me:
The problems in the Stevens case stemmed from misjudgments and poor decisions about discovery that were made throughout the Polar Pen investigation, long before Matt Friedrich or I became involved. We did not give instructions about Brady or other discovery practices, and we became aware of the underlying problems only when they became public during the Stevens prosecution and thereafter.
Ultimately, the special investigator who dug into the Stevens prosecution found only two prosecutors, Joseph W. Bottini and James A. Goeke, had deliberately withheld favorable evidence from Stevens' defense team. (Their lawyers deny that they failed to disclose evidence on purpose.) The report declined to make any conclusions about Marsh's role since he killed himself before it came out.
After Marsh's suicide, his lawyer, Bob Luskin, said he believed the young prosecutor would have been exonerated.
In any case, it seems like a mistake by the Justice Department to have put so much responsibility on a relatively inexperienced lawyer. As Powell notes in her book, when the Stevens prosecution was happening, Marsh was just 35 years old and was one of the youngest attorneys in the Justice Department's Public Integrity Section - and he had already led the "Polar Pen" investigation into corruption in Alaska for four years.
Before he died, Marsh provided information that was used in the Schuelke report that suggested there was no formal process for turning over information that could be favorable to the defense, known as Brady material. He didn't even "remember anybody being specifically designated to be in charge of Brady review" and said it "was kind of done piecemeal." It's highly possible the young lawyer could have benefited from more supervision.
While nobody knows what was really going through Marsh's mind when he killed himself, it's tragic that botched discovery played some role in his decision to end his life.