[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
PROSECUTION OF FORMER SENATOR
TED STEVENS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
APRIL 19, 2012
__________
Serial No. 112-106
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Richard Hertling, Staff Director and Chief Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
BOB GOODLATTE, Virginia ROBERT C. ``BOBBY'' SCOTT,
DANIEL E. LUNGREN, California Virginia
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
TED POE, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah Georgia
TIM GRIFFIN, Arkansas PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania JUDY CHU, California
TREY GOWDY, South Carolina TED DEUTCH, Florida
SANDY ADAMS, Florida SHEILA JACKSON LEE, Texas
MARK AMODEI, Nevada MIKE QUIGLEY, Illinois
JARED POLIS, Colorado
Caroline Lynch, Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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APRIL 19, 2012
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, and Homeland Security........ 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 3
WITNESSES
Henry F. Schuelke, III, Partner, Janis, Schuelke, and Wechsler
Oral Testimony................................................. 36
Kenneth L. Wainstein, Partner, Cadwalader, Wickersham and Taft
LLP
Oral Testimony................................................. 48
Prepared Statement............................................. 51
Alan I. Baron, Senior Counsel, Seyfarth Shaw LLP
Oral Testimony................................................. 57
Prepared Statement............................................. 58
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 5
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 7
APPENDIX
Material Submitted for the Hearing Record
Addendum to the Prepared Statement of Kenneth L. Wainstein,
Partner, Cadwalader, Wickersham and Taft LLP................... 74
Letter from Virginia E. Sloan, The Constitution Project, to the
Honorable F. James Sensenbrenner, Jr........................... 183
Letter from Virginia E. Sloan and Stephen F. Hanlon, The
Constitution Project, to the Honorable Eric H. Holder, Jr...... 185
Letter from Robert Gay Guthrie, President, the National
Association of Assistant United States Attorneys............... 188
Prepared Statement of Sean Bennett, Kalamazoo, Michigan.......... 191
OFFICIAL HEARING RECORD
Material Submitted for the Hearing Record but not Reprinted
Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to
the Court's Order, dated April 7, 2009, Henry F. Schuelke III, Special
Counsel, D.C. Bar no. 91579; and William Shields, D.C. Bar no. 451036,
Janis Schuelke & Wechsler This report is available at the Subcommittee
and can also be accessed at:
http://www.dcd.uscourts.gov/dcd/sites/www.dcd.uscourts.gov.dcd/files/
Misc09-198.pdf
PROSECUTION OF FORMER SENATOR
TED STEVENS
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THURSDAY, APRIL 19, 2012
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:34 a.m., in
room 2141, Rayburn House Office Building, the Honorable F.
James Sensenbrenner, Jr. (Chairman of the Subcommittee)
presiding.
Present: Representatives Sensenbrenner, Gohmert, Goodlatte,
Poe, Gowdy, Adams, Scott, Conyers, Johnson, Pierluisi, and
Jackson Lee.
Staff Present: (Majority) Caroline Lynch, Subcommittee
Chief Counsel; Harold Damlin, Counsel; Sheila Shreiber,
Counsel; Samuel Ramer, Counsel, Lindsay Hamilton, Clerk;
(Majority) Bobby Vassar, Subcommittee Chief Counsel; Aaron
Hiller, Counsel; and Veronica Eligan, Professional Staff
Member.
Mr. Sensenbrenner. The Subcommittee will come to order.
Today's hearing examines the troubled prosecution of former
United States Senator Ted Stevens of Alaska, which resulted in
the Department of Justice requesting the judge to overturn the
jury's guilty verdict and dismiss the charges against him. The
Justice Department's Public Integrity Section, with the
assistance of two assistant U.S. attorneys from Alaska,
prosecuted Senator Stevens. The Public Integrity Section is
supposed to be the Department's elite unit for handling
political corruption cases. In light of what the prosecutors
did in this case, I have to question the section's competency
and ethics.
In July 2008, a few months before he was to run for
reelection, Senator Stevens was indicted for making false
statements on his annual Senate disclosure form. The indictment
charged that he had not paid for certain renovations made to a
home he owned in Alaska and failed to disclose the value of the
renovations as gifts. The renovations were made by VECO
Corporation, an Alaska company owned by the Senator's longtime
friend, Bill Allen.
In order to allow Senator Stevens the chance to clear his
name before the upcoming November election, his attorney
requested an October trial date. The government not only agreed
to a speedy trial, but suggested an even earlier date of
September. The result was that there would be only 55 days
between indictment and the start of the trial.
Since this was a criminal prosecution, the government was
required to produce all exculpatory and impeachment-type
evidence known as the Brady and Giglio material. Pretrial, the
government summarized what it represented to be all of the
Brady and Giglio material in its possession in two letters sent
to counsel for Senator Stevens. As would be discovered later,
the prosecutors had made misstatements and omitted significant
evidence in each letter.
This trial started in late September 2008. Senator Stevens'
counsel repeatedly asked the judge to dismiss the case because
the prosecutors had failed to produce the evidence in violation
of their Brady and Giglio obligations. Numerous times the judge
found that the prosecutors had violated their discovery
obligations. While the judge declined to dismiss the case, he
repeatedly ordered the prosecutors to produce the various
documents required by Brady and Giglio. He sanctioned the
government by excluding certain evidence.
In late October, the jury found Senator Stevens guilty on
all seven counts of the indictment. As subsequent events would
reveal, the jury reached its verdict based upon a distorted
version of the facts. Soon after the trial ended, an FBI agent
involved in the case took the unusual step of filing a
whistleblower complaint with DOJ and the judge, alleging in
specific detail that his co-FBI agent and at least one of the
prosecutors engaged in serious misconduct and unethical
behavior in the prosecution of Senator Stevens.
Given these serious allegations, the judge ordered the
government to produce materials relating to the agent's
complaint. Consistent with its behavior during the trial, the
government did not comply with the judge's order. The judge had
finally had enough of the government's noncompliance, and held
two of the Public Integrity Section's prosecutors in civil
contempt.
At this point, the DOJ assigned a new team of attorneys
from outside the Public Integrity Section to handle the
remainder of the Stevens post-trial litigation. They soon
discovered that the prosecutors had failed to produce to
Senator Stevens' counsel significant exculpatory and
impeachment information in the form of interview notes relating
to the key prosecution trial witness, Bill Allen.
After producing the interview notes to the judge and to
Senator Stevens' counsel, DOJ took the drastic step of asking
the judge to set aside the guilty verdict and to dismiss the
indictment of Senator Stevens based upon the prosecutor's prior
failure to produce the interview notes. While the case was
tossed out, it was too little, too late. Senator Stevens had
lost his bid for reelection and the damage done by the
prosecutors was irrevocable.
The judge was so concerned about the government's admitted
Brady violations, combined with what he described as
``prosecutorial misconduct to a degree and extent that this
court has not seen in 25 years on the bench,'' that he took the
extraordinary step of appointing a special counsel, Henry
Schuelke, to investigate and, if appropriate, prosecute
criminal contempt proceedings against the Stevens prosecutors.
In November of last year, Mr. Schuelke completed his
investigation and submitted to the judge a 500-page report.*
The judge released the report to the public on March 15, 2012,
and the facts detailed in that report have generated today's
hearing.
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*See http://www.dcd.uscourts.gov/dcd/sites/
www.dcd.uscourts.gov.dcd/files/Misc09-198.pdf.
---------------------------------------------------------------------------
Mr. Schuelke did not recommend bringing criminal contempt
charges against any of the prosecutors due to what he concluded
was a deficiency in the judge's orders. One might say that the
prosecutors got lucky. Significantly, Mr. Schuelke found that
the investigation and prosecution of U.S. Senator Ted Stevens
were permeated by the systematic concealment of exculpatory
evidence which would have independently corroborated Senator
Stevens' defense and his testimony, and seriously damaged the
testimony and credibility of the government's key witness.
Mr. Schuelke's report describes a series of improper
actions taken by the prosecutors and the FBI agent that are
sobering. His report takes us inside a major criminal
prosecution where he found that the prosecutors won their case
through willfully failing to disclose exculpatory and
impeachment evidence, intentionally failing to correct false
testimony, making misrepresentations to the judge, to defense
counsel, and even to people within DOJ, shirking supervisory
responsibility, grossly mismanaging the trial team, and acting
on questionable ethical decisions.
Further discrediting the prosecutors, he also found that
they had a collective memory failure relating to certain key
events. As would be expected regarding any report like this
one, people have criticized Mr. Schuelke's conclusions, tactics
and tones, but there can be no dispute about the hard facts
which lead to only one conclusion: that Senator Stevens was
denied a fair trial due to the collective misconduct of the
prosecutors. If they had complied with their ethical and legal
obligations, the jury might not have convicted Senator Stevens.
I think it is important that we try to understand how and
why the government botched this prosecution before considering
whether we need legislative changes. I am also interested to
know that what, if anything, DOJ has done in response to the
problems that have been uncovered in the Stevens prosecution.
DOJ undertook an internal review of the Stevens' prosecutors,
the results of which were leaked to the press over a year ago.
Despite the Attorney General's public pronouncements to
Congress that he plans on sharing the DOJ report, he has not
done so. We invited DOJ to send a representative to testify at
this hearing, but the Department declined the invitation.
I look forward to discussing this very troubling matter
today with Mr. Schuelke and the other panel of witnesses which
we have scheduled to testify.
And I now yield to the gentleman from Virginia, Mr. Scott,
for his opening statement.
Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
you for this hearing regarding the prosecutorial misconduct in
the case involving former Senator Ted Stevens of Alaska.
I commend the Attorney General for taking decisive action
after the findings that you have outlined, dismissing the
prosecution of Senator Stevens with prejudice upon learning of
the misconduct. I understand that his Department's decision not
to comment on the matter during the Office of Professional
Responsibility review, but it is clear from other cases that
the problem is greater than just the Stevens case. And I am
concerned about whether or not there are sufficient safeguards
in place to prevent such disturbing cases from occurring in the
future.
The government is given enormous powers over individuals in
the criminal justice system, including the power to jeopardize
and take away their freedom, even their lives in some cases. In
exercising such enormous power over individuals, it is
incumbent upon the criminal justice system to ensure basic
fairness to them. And when the government conceals information
in a prosecution that could undermine its case against a
defendant, such concealment is fundamentally and
constitutionally unfair as well as unethical, and it is
actually illegal under Brady v. Maryland and other cases.
Generally a defendant will have no way to know of or learn
of exculpatory evidence known to the government unless the
government discloses it. Given the adversarial relationship
between the government and the defendant in criminal cases and
the natural desire of human beings, including prosecutors, to
win a case, there are strong temptations not to reveal case
weaknesses. Therefore, there must be strong disincentives, as
well as obligations, for the government to overcome such
temptations. I believe that the Attorney General and his staff
have demonstrated and continue to demonstrate commendable
responsibility in revealing the failures of the Department to
meet its obligations in the Stevens case. However, I am not
convinced that the dependence on after-the-fact actions by an
individual Attorney General and disciplinary proceedings
against individual attorneys for their failures to reveal
exculpatory evidence, if discovered, is a strong enough
standard to prevent such problems from occurring in the future.
In other recent cases, including potential cases among
those reported in recent newspaper articles, regarding
unrevealed discredited scientific evidence relied upon for
convictions of hundreds of defendants caused me to believe that
stronger requirements than those currently in place need to be
considered.
Also, we have several letters that I will offer for the
record, signed by dozens of criminal justice professionals and
observers, including many former prosecutors calling for
stronger measures as safeguards against concealment of
exculpatory information by prosecutors.
I look forward to any light the testimony of our witnesses
may shed on these issues. I also look forward to working with
you, Mr. Chairman, and the Department of Justice, to ensure
that effective measures are in place to prevent such cases as
Senator Stevens' case from occurring in the future. Thank you
and I yield back.
Mr. Sensenbrenner. Thank you.
And without objection, the letters referred to by the
gentleman from Virginia will be put into the record.
The Ranking Member of the full Committee, the gentleman
from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Sensenbrenner. I commend
you and Ranking Member Scott for your statements, which I
concur with, and will merely submit my opening for the record
and observe that the Brady rule is being violated in other
respects as well. In other words, there are people that don't
have the rank of United States Senator who are no doubt being
affected by violations of the Brady rule. So it is in that
spirit that I commend both the Chairman and the Ranking Member
for the work that they have done in this regard. And I will
yield back the balance of the time, and I will yield briefly to
Bobby Scott.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
In the landmark case Brady v. Maryland, the Supreme Court writes:
``Society wins not only when the guilty are convicted but when criminal
trials are fair; our system of the administration of justice suffers
when any accused is treated unfairly.'' Looking to the constitutional
guarantees of due process and effective assistance of counsel in the
Fifth and Sixth Amendments, the Court stated that prosecutors have a
duty to disclose evidence that is favorable to the defense. This rule,
when honored, helps to ensure fair process in criminal trials.
Over time, the Brady rule has become an integral part of our
federal criminal system. As a direct consequence of Brady and its line,
Rule 16 of the Federal Rules of Criminal Procedure requires prosecutors
to disclose a wide array of evidence at the request of a defendant. The
Jencks Act, 18 U.S.C. Sec. 3500, requires prosecutors to disclose
certain information about government witnesses.
And, of course, all prosecutors are governed by professional rules
of ethics that require us to share information in our possession that
may be favorable to the defense. Because the government controls so
much of the information pertinent to a criminal trial, we require
federal prosecutors to make favorable evidence readily available to the
other side.
Notably, however, Congress has never codified the Brady rule
itself. No statute compels the disclosure of all exculpatory evidence.
Instead, we have relied on Department of Justice policy, rules of
procedure, and a sense of trust in our federal prosecutors to ensure
that Brady is enforced.
Today, we will address whether that trust has been misplaced.
Specifically, we focus on the trial of the late Senator Ted Stevens,
whose prosecution was as flawed as they come. At no point in Senator
Stevens' trial did prosecutors conduct a full or effective review for
Brady information. They knowingly withheld impeachment evidence, and
knowingly failed to correct perjured testimony.
We have come to these conclusions after a 2-year investigation by
independent counsel Henry F. Schuelke. His analysis demontrates, beyond
a reasonable doubt, that federal prosecutors intentionally withheld
Brady information from Senator Stevens--and, in some instances, never
bothered to learn the extent of the exculpatory evidence in their
possession.
It has become common to say that, if these offenses could happen to
Senator Stevens, they could happen to anyone. Often overlooked is the
fact that prosecutorial misconduct of this nature happens with alarming
frequency, to the obvious harm of countless defendants--many of them
far less prominent than a U.S. Senator.
For example, the Lindsay Manufacturing Company was the first
corporation to be convicted of charges under the Foreign Corrupt
Practices Act. The conviction was reversed after the court found that
prosecutors had inserted falsehoods in requests for search warrants,
allowed an FBI agent to testify untruthfully before a grand jury,
improperly reviewed Brady material, and withheld key Brady evidence
from the defense.
Consider the case of Edgar Rivas, a sailor on a Venezuelan
freighter bound for New York who was charged with possession of more
than five kilograms of cocaine. He was sentenced to ten years in
prison. On appeal, the Second Circuit learned that prosecutors had
obtained a confession from their main witness, Rivas's shipmate, and
never disclosed that statement to the defense.
Or consider the case of Anthony Washington, a drug dealer with
multiple felony convictions. Washington might have been in prison for
unlawful possession of a firearm had federal prosecutors not withheld
the fact that their main witness had been previously convicted for
making a false report.
These cases, and others like them, are inexcusable. Still, the
Department of Justice has been given time to bring its attorneys into
line with Brady. In 2006, the Department revised the United States
Attorney Manual to explicitly require Brady disclosure. In 2010,
following the embarrassing reversal of Senator Stevens' conviction,
Deputy Attorney General David Ogden issued a series of memoranda to
provide further guidance for prosecutors.
But neither of these policies are judicially enforceable. And given
the continued run of Brady violations, it may be time for Congress to
consider other options.
During the trial of Senator Stevens, in deliberations about whether
a court order would be necessary to compel the government to produce
Brady material, Judge Emmet G. Sullivan stated: ``I'm not going to
write an order that says `follow the law.' We all know what the law is.
. . . I'm convinced that the government and its team of prosecutors . .
. in good faith, know that they have an obligation on an ongoing basis
to provide the relevant, appropriate information to defense counsel.''
Because the court accepted the prosecutors' repeated assertions that
they were complying with Brady, it did not issue an order directing the
attorneys to follow the law.
But if federal prosecutors must be ordered to obey Brady, because
it is too vague a rule or too difficult to follow, then it may fall to
Congress to draw a brighter line. This is the conclusion drawn in this
letter, ``A Call for Congress to Reform Federal Criminal Discovery,''
signed by 141 judges, prosecutors, law enforcement officers, defense
lawyers, conservative leaders, and others. Few issues draw so much
agreement from such a diverse and experienced group.
I look forward to the testimony of the witnesses their insights
into how we can prevent prosecutorial misconduct, restore a measure of
faith in our federal criminal process, and protect the constitutional
rights of all Americans.
__________
Mr. Scott. Thank you. Mr. Chairman, I just want to mention
for the record the statement from the Department of Justice, a
letter from the National Association of Criminal Defense
Lawyers, ACLU, and a letter from the Constitutional Project
that has almost 150 signatories.
Mr. Sensenbrenner. Without objection, the material will be
included.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Sensenbrenner. Without objection, all Members' opening
statements will be included at this time.
I would now like to introduce today's witness on the first
panel. Henry F. Schuelke, III, is a partner in the law firm
Janis, Schuelke, and Wechsler. Mr. Schuelke was named by Judge
Emmet Sullivan to serve as Special Counsel to investigate the
prosecution of Senator Ted Stevens. Mr. Schuelke previously
served twice as Special Counsel to the U.S. Senate. He served
as an assistant United States attorney for the District of
Columbia. And following his graduation from law school, he
served for 4 years in the Judge Advocate General's Corps. He
received his undergraduate degree from St. Peters college and
his law degree from Villanova University.
The Chair is going to swear witnesses at this hearing, so
Mr. Schuelke would you please stand and raise your right hand.
[Witness sworn.]
Mr. Sensenbrenner. Thank you. I ask that you summarize your
testimony in 5 minutes or less. We have the red, yellow, and
green lights before you. And when the light turns red, it
indicates that the 5 minutes have expired. Mr. Schuelke.
TESTIMONY OF HENRY F. SCHUELKE, III, PARTNER,
JANIS, SCHUELKE, AND WECHSLER
Mr. Schuelke. Thank you. Mr. Chairman, Mr. Scott, Mr.
Conyers, good morning. I appear this morning at the Committee's
invitation to answer such questions as the Committee might have
concerning the investigation that my colleague William B.
Shields and I have performed, having been ordered to do so by
the Honorable Emmet G. Sullivan of the United States District
Court for the District of Columbia. I understand that the
Committee has our report, and I am prepared to respond to the
Committee's questions.
I should like to observe that we had the complete
cooperation of the Department of Justice as we undertook this
investigation, as well as that of its Office of Professional
Responsibility. And with that, Mr. Chairman, I am prepared to
answer your questions.
Mr. Sensenbrenner. Thank you very much, Mr. Schuelke.
Mr. Schuelke. Mr. Chairman, I am not sure--is this
microphone working?
Mr. Sensenbrenner. It is working fine.
First of all, can you describe the willful nondisclosures
of Brady and Giglio material that you found during the course
of your investigation?
Mr. Schuelke. I can. I found that the prosecutors, Messrs.
Bottini and Goeke in particular, failed to disclose exculpatory
information provided to them by the then-anticipated government
witness, Mr. Rocky Williams, concerning his understanding based
on a conversation that he had with Senator Stevens and Bill
Allen before the renovation project ever began, that whatever
time and material that Allen's company, VECO, was to provide on
the renovation would be included in the bills submitted to
Senator and Mrs. Stevens by the general contractor who they had
engaged, Christensen Builders, and consistent with that
understanding, it was his practice on a monthly basis to
retrieve the Christensen Builders invoices, check them for
accuracy, take them to Allen's office, so that his time and
other VECO employees' time could be added to the bills before
they were sent to Senator and Mrs. Stevens.
Mr. Sensenbrenner. Do you think that the failure to
disclose this exculpatory information would have had an impact
on the outcome of the trial?
Mr. Schuelke. I do. It was altogether consistent with
Senator Stevens' defense, which the government well anticipated
and forecast. When Senator Stevens and Mrs. Stevens testified
during the course of the trial that they understood and
believed that they had paid all the bills--because they did,
indeed, pay all the Christensen Builders bills to the tune of
$160,000--that testimony was not only challenged in cross-
examination and in closing arguments by the government, it was
ridiculed. Had the government's own witness, who was the
foreman on the job, testified to the understanding which I just
described, I believe it would have had a significant impact on
the outcome.
Secondly, the government, since 2004--that is 4 years
before the Stevens trial commenced--was in possession of
evidence that its principal witness, Mr. Allen, had suborned a
false statement from a young teenage prostitute with whom it
was alleged that he had had a sexual relationship. That
information, which clearly would have been admissible to
impeach Mr. Allen's credibility--namely, that he had suborned a
false statement--was not disclosed to the defense. It was not
disclosed to the Stevens defense in 2008, nor was it disclosed
in the course of two trials conducted in the District of Alaska
1 year before the Stevens trial.
Peter Kott and Victor Kohring were two Alaska State
legislators who were indicted, tried, and convicted for bribery
offenses. The principal government witness in both of those
cases was Mr. Allen who had, according to the government--and
ultimately according to Mr. Allen's guilty plea--paid the
bribes to those two State legislators. The evidence of Mr.
Allen's subornation of a false statement was not provided to
either of them either. This was a pattern that prevailed over
the space of three trials conducted over 1 year.
Mr. Sensenbrenner. What do you think motivated the
prosecutors to do this?
Mr. Schuelke. As I testified when I was asked that question
by the Senate Judiciary Committee a couple of weeks ago, I said
that I believed that it was the adversary's desire to win, and
not to disclose to the defense information which would have
hurt the government's case. That is my view today.
Mr. Sensenbrenner. So it was win at all costs and not to
have justice served?
Mr. Schuelke. I think that is a fair characterization, yes.
Mr. Sensenbrenner. Okay. Thank you. My time has expired.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you. Mr. Schuelke, when Attorney General
Holder came in, what was the status of the Stevens case? I
understand that he had been found guilty by the jury, but the
judge had not entered the guilty verdict; is that where we
were?
Mr. Schuelke. When Attorney General Holder took office, the
trial had been concluded, you are correct, and the jury had
returned a guilty verdict. And post-trial proceedings were
underway; that is, motions for a new trial.
Mr. Scott. Had the judge entered the guilty verdict?
Mr. Schuelke. Well, if you mean, Mr. Scott, was there a
conviction entered, the answer is no because a conviction
occurs as a matter of law only when the sentence is imposed,
and of course the case never got to that point.
Mr. Scott. You hadn't gotten to the sentencing phase? What
did the Attorney General find out that provoked his
investigation? The defense counsel got some tips as to what
might have happened?
Mr. Schuelke. A couple of things, Mr. Scott. As Chairman
Sensenbrenner observed, there was an FBI agent whose name was
Chad Joy, who filed essentially a whistleblower complaint,
making a number of allegations about the conduct of the lead
FBI agent on the case, as well as the prosecutors, that
prompted ost-trial motions brought by Senator Stevens' counsel.
In the process of responding to those motions, as Chairman
Sensenbrenner also observed, Judge Sullivan found two of the
government prosecutors to have been in civil contempt for
failure to have produced certain records which he had ordered
in connection with those proceedings. At that point, the
Department of Justice appointed a new team of prosecutors to
represent the United States in the course of these post-trial
proceedings.
Those three prosecutors commenced an investigation. And
they focused initially on the most dramatic testimony delivered
by Mr. Allen in the trial; namely, that a letter that he had
received from Senator Stevens, asking him to make sure and send
him the bill was just Senator Stevens covering his ass, based
upon a conversation Mr. Allen claimed to recall with a mutual
friend of his and Senator Stevens in Alaska. That testimony
was, as one might imagine, dramatic and damning to Senator
Stevens' defense that he acted at all times with pure intent.
As these new prosecutors focused on this, they began to
review some internal emails by, between, and among the
prosecution team and found a series of emails that were
obviously contemporaneous to an interview of Mr. Allen 5 months
before the trial. I say contemporaneous, meaning it was obvious
that they were emailing back and forth while the interview was
in progress. They were curious about this exchange and, in
short, ultimately found the handwritten notes of that
interview, which had been recorded by two of the prosecutors.
Ultimately, the handwritten notes of two more prosecutors and
the lead FBI agent were also discovered. All of those notes
reflected that Mr. Allen was asked during that interview
whether he remembered the note he got from Ted Stevens and
whether he remembered speaking to Mr. Persons, the one to whom
he at trial attributed the cover-your-ass comment. And all of
those notes reflected that he either said no, he did not speak
to Persons, or he did not recall speaking to Persons.
Mr. Scott. And my time is almost up. But as a result of
those findings, the new team of lawyers made a motion to
dismiss the case with prejudice?
Mr. Schuelke. That is correct. The new team of lawyers, as
I understand it, recommended that that be the course taken by
the Department. And the Attorney General authorized the motion
to dismiss with prejudice, which of course Judge Sullivan
granted.
Mr. Sensenbrenner. Thank you. The gentleman from South
Carolina, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman. Mr. Schuelke, if I
heard you correctly, Senator Stevens paid $160,000 for the
improvements made, the addition? Did I hear you correctly?
Mr. Schuelke. Yes, sir, you did.
Mr. Gowdy. What was the fair market value of the additions
or changes made to the lodge?
Mr. Schuelke. The fair market value of the house after the
renovations was $152,000.
Mr. Gowdy. Were the bills paid contemporaneous with their
being submitted? In other words, was he paying the bills in a
timely fashion? Or was it a circumstance where he got a lot of
bills toward the end?
Mr. Schuelke. No. The Christensen Builders bills were paid
in the regular course by Mrs. Catherine Stevens upon receipt.
The Stevenses, in order to finance this project, had taken a
second mortgage, liquidating $100,000 in cash for the project,
had liquidated a $10,000 trust and spent from their savings as
well. And that is how they timely paid the $160,000 worth of
Christensen invoices.
Mr. Gowdy. Well, here is what I am struggling with: I
actually like prosecutors. I actually like Federal prosecutors.
Mr. Schuelke. I do, too. I used to be one.
Mr. Gowdy. So when I say what I am getting ready to say it
is not by virtue of a criticism toward them. But they are not
known for taking really close cases that could go either way,
unless they have to, particularly against a high-profile
defendant. State prosecutors have to roll the dice more than
Federal prosecutors do. So if you have a high-profile defendant
with a really good defense team and your allegation is that he
unjustly enriched himself via gifts, and the evidence is he
actually paid more than the value of the home, what am I
missing? Why was the case ever brought in the first place? It
doesn't seem to be a very good case from a factual standpoint.
Mr. Schuelke. Well, the government had evidence that Bill
Allen's company, VECO, had provided labor and materials for the
project, and it was the government's theory of the case that
Senator Stevens well knew that that had occurred, acknowledged,
at least late in the process, that he knew that, which is why
he sent the note to Mr. Allen asking him, please send me a bill
for whatever work you did. And the government contended that
VECO's contribution to this project, as was alleged in the
indictment, was $250,000.
Now, at trial, when the government introduced the records
of the VECO Corporation which purported to establish this
$250,000 figure, it was demonstrated that the records were
simply inaccurate. They, for example, logged 8 hours a day, 5
or 6 days a week, for Rocky Williams. He didn't work 8 hours a
day, 5 or 6 days a week on the project. They logged 8 hours a
day, 5 days a week, for another VECO employee, Dave Anderson,
who wasn't even in Alaska for several months during that period
of time. And Judge Sullivan, upon the motion of Senator
Stevens' defense counsel, concluded that those records were
false and excluded the majority of those records.
Mr. Gowdy. All right, my light is on. So let me ask you
this, which is kind of related, I guess somewhat. Before I ask
you that, the Federal prosecutors weren't interviewing these
witnesses without the Bureau being present, were they? I mean
they are not crazy enough to do witness prep without a law
enforcement agent present, were they?
Mr. Schuelke. As a general practice, they did have FBI
agents, and, on occasion, agents of the Internal Revenue
Service, accompany them for purposes of interviews.
Mr. Gowdy. This may or may not be true because it has been
reported, which carries no presumption of credibility, that
there is this movement to change Brady/Giglio, the discovery
rules, because of this case. There is a Senator from Alaska
that has introduced legislation. It strikes me that if the
rules as they existed had been followed, you and I wouldn't be
having this conversation.
Mr. Schuelke. Well, I think that is quite right, Mr. Gowdy.
It has been the law, since the Supreme Court decided the Brady
case and the Giglio case, that the government is obligated to
disclose material exculpatory information. I don't believe that
this materiality issue, which I personally think is a problem
that needs to be addressed, was a determining factor in the
problems that occurred in the Stevens case. But I do think it
is a problem that needs to be addressed.
I have seen Senator Murkowski's proposed bill. I don't know
that I am in a position to subscribe to it in its entirety. But
to the extent that it would eliminate the materiality
requirement with respect to the disclosure of exculpatory
material, I think it is welcome and necessary.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. I first want to thank
you for coming before us today. And I just want to take a
moment to look at the larger question of Brady rule violations
and how we ought to look at them. I understand the Subcommittee
may be considering looking at other kinds of cases like this,
and it might add some dimension to the problem. So I would just
like you to tell us about your impressions of whether the Brady
rule needs strengthening or whether we need to get a way for
the prosecutors to actually look at it more and use it more
appropriately.
Mr. Schuelke. Yes, sir. I shall try, Mr. Conyers.
First of all, we should all understand that the Supreme
Court has for years announced the rule that in order for a
conviction to be reversed for the government's failure to
provide exculpatory information, that failure must have had an
outcome determinative effect. That is to say, are we left with
a situation where we can have no confidence in the verdict
because of the failure to disclose Brady information? That is
the materiality concept which, in my judgment, is perfectly
sensible and appropriate from that post hoc appellate
perspective.
Now we are in the pretrial situation. The prosecutor has an
obligation to disclose Brady material. The prosecutor says--and
they have argued in court repeatedly, they did in the Stevens
case--well, we were only obligated to disclose material
exculpatory information. Now mind you, the prosecutor is one of
the adversaries in this process. In my judgment, it is not
appropriate for one of the adversaries to be the self-appointed
gatekeeper for what may be exculpatory information that the
defense, consistent with its strategy, may be in a position to
pursue and to use in the course of the trial.
And this adversarial process, which is a general
proposition I applaud, leaves one in a situation where there is
a considerable risk for mischief. If I am the prosecutor and I
say, here is this little tidbit which is in my files which
reflects adversely on the credibility of my star witness, it is
really not material. I don't think I have to turn that over.
Human nature is such that good people motivated by this
adversarial desire to prevail make those kinds of judgments.
They should not. And it is for that reason that I believe, as I
have testified, that the materiality requirement with respect
to pretrial disclosure of the Brady material should be
eliminated.
Mr. Conyers. Is it fair, in closing, to ask you whether
this kind of problem occurs perhaps more than we on the
Judiciary Committee could be aware of?
Mr. Schuelke. Well, that is a very good question, Mr.
Conyers. One never knows what one doesn't know.
Based on my experience both as a prosecutor and a defense
attorney for now over 40 years, I do not personally believe
that there is a pervasive nondisclosure problem in the
thousands and thousands of cases that are brought by the
Department of Justice. There have been a number of celebrated
ones. There have been a half a dozen or so that have attracted
considerable attention in the last 2 years. So it happens. And
of course, one never knows if the case goes to trial and there
had been no disclosure of Brady material, and the defendant,
for whatever reason, was not equipped to ferret it out, if
there was not a Judge Sullivan presiding over the matter, one
never knows. But it is my personal view, based on my
experience, that it is not a widespread pervasive problem in
the Department of Justice. And I know that the Department,
since the Stevens case, has taken significant steps both in
terms of policy, proscription and training to address this
problem.
Mr. Conyers. Thank you for your views.
Mr. Sensenbrenner. The gentleman's time has expired. We are
expecting about 25 minutes of votes pretty soon, and then there
will be a second series of votes later on. I would kind of like
to do, to speed this hearing up and not to impose undue time
delays upon our witnesses, to do what we can in shuttling us in
and out. So the Chair recognizes the gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. We know that we had
an FBI Agent Joy that filed a whistleblower complaint against
the DOJ. As of November 2008, how long had FBI Agent Joy been
working for the FBI?
Mr. Schuelke. Mr. Gohmert, I don't remember precisely how
long. He was quite young and inexperienced.
Mr. Gohmert. And still had the courage to come forward with
the information. That is very impressive.
One of my concerns over the FBI 5-year ``up or out'' policy
that this Director implemented, it drove thousands of years of
FBI experience out of the FBI and left people with much less
experience in charge. And my experience, from having been a
prosecutor in my early days out of law school was, you know,
you are hard-charging and you need somebody, maybe not as smart
as you, but somebody with experience to say, ``This is not a
good idea. You should not put a case in jeopardy. We are about
justice, and that means your title forces you to disclose Brady
material, whether there is a Brady case or not. You are about
justice. You are not about winning at all cost.'' And some
people have a hard time understanding that and understanding
their role.
I have got to tell you, just my perceptions. I was not a
big fan of Ted Stevens. When I heard and saw and read the
information coming from the Justice Department, it sounded
like, gee, this guy really had, you know, over $100,000,
$200,000 of benefits come his way, and that really is abusive.
This is a bad situation. And then when you find out the real
facts, he paid more than the value of the structure. And then
you find out that, gee, they knew--not only his theory, they
had his notes where he was saying, ``Give me the bill. Let me
pay the bill.'' And as you said, his wife was paying them as
they came in and they end up paying more than the value of the
structure itself.
It is just hard to imagine prosecutors, Justice officials,
FBI officials--I have got a lot of friends in the FBI, a lot of
people I have so much respect for. And I do disagree with you
that an adversary should not be a gatekeeper. If they
understand their goal, their end is justice, not to win at all
costs. As you have said, I don't think this is a widespread
problem. But I am wondering--and having been a judge and a
chief justice, I have sat on disbarment cases back in Texas in
State court. I don't know why anybody that literally took the
life that Ted Stevens built and destroyed it, took his life,
why they should ever be allowed to practice law again if they
do not understand the trust and betrayed it as they did here.
And I understand your recommendations with regard to
contempt of court. You looked at the burden of proof. Had there
been any actions taken to pull the ticket to disbar these
people that would ruin a man's life, at the end of his life, in
such a way by withholding evidence, it sure seems it would have
made a heck of a difference.
If I am a judge hearing a case without a jury, and I find
out the structure is worth less than he paid, that he has notes
out there that he gave timely manner and said, Give me the
bills, and the evidence was his wife paid the bills as they
came in, and then it turns out there is evidence of the key
witness involved with a prostitute--can we say ``prostitute,''
involved with a prostitute--I cannot imagine why they should
not be allowed to practice law again after ruining this man's
life. Have you looked at possible disbarment?
Mr. Sensenbrenner. If the gentleman will yield, you can use
that word because The Washington Post has used it quite a bit
in the last week.
Mr. Gohmert. Okay. Well, have you looked at disbarment
recommendations?
Mr. Schuelke. I have not, Mr. Gohmert. It is beyond my
charter, and I don't have a view on that subject.
Mr. Gohmert. You don't have a view at all? Not even
personally?
Mr. Schuelke. I don't care to take a view on it.
Mr. Gohmert. Okay. You could have one but you don't care to
take a view.
Mr. Sensenbrenner. The gentleman's time has expired. I am
going to recess the Committee. And I will admonish both Mr.
Johnson and Mr. Pierluisi to be back after the last vote of
this series. Otherwise, we will move on.
Without objection, the Committee is recessed until after
the last vote of the series.
[Recess.]
Mr. Sensenbrenner. The Subcommittee will be in order. The
Chair recognizes the gentleman from Georgia, Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman, for holding this very
important Committee meeting on this issue.
Ted Stevens was a gentleman who I met for the first time
Christmas of 2007, and we were both standing in line together
at the White House Christmas celebration, waiting to shake
hands with the President. And while he was there, I think it
was his wife and a couple of his daughters were with him, and
they were very jovial and, you know, just regular, normal
people. I know they have hearts and feelings and that kind of
thing, and they were happy.
Senator Stevens was spry, kind of cantankerous, and he was
irascible, but I liked him. He seemed to be a good proud man,
used to being in authority and in control. I can only imagine
how he must have felt when the jury announced the verdict of
guilty in this case. And in this case, it was in 2004 that the
government knew that the principal witness, Bill Allen, had
suborn perjury by getting a prostitute to testify or make a
false statement under oath; is that correct, Mr. Schuelke?
Mr. Schuelke. Yes, sir, that is correct.
Mr. Johnson. And was Mr. Allen prosecuted for that?
Mr. Schuelke. He was not.
Mr. Johnson. But that was a note that was in--that was
evidence that was in the file of the prosecution in the Stevens
case?
Mr. Schuelke. Yes. The young woman had been interviewed by
an FBI agent and----
Mr. Johnson. Okay. I will stop you there. I just wanted to
clear up the facts. And that same information was available in
a Federal prosecution of the two cases prior to Senator
Stevens' trial. And those two cases involving State legislators
were Federal trials as well; is that correct?
Mr. Schuelke. That is correct.
Mr. Johnson. So we have three instances of failure to
disclose subornation of perjury. That would have been material
information, would it not?
Mr. Schuelke. Yes, sir.
Mr. Johnson. And pursuant to Giglio, that information
should have been disclosed as well as Brady.
Mr. Schuelke. It was Giglio material, I would say.
Mr. Johnson. Yeah. And then during the trial in 2008, the
prosecution failed to disclose--or during the Ted Stevens case,
the prosecution failed to disclose written information in the
files, in the way of case notes that the prosecutors had
written down what a witness was telling them, that witness
being Bill--or, excuse me, Rocky Williams. And then also, that
information would have been material also, in your opinion; is
that correct?
Mr. Schuelke. I believe that was material Brady
information, yes, sir.
Mr. Johnson. And then you have already testified about the
fact that the prosecutors derided Senator Stevens' principal
defense which was that, I have this note here and it shows that
I requested so-and-so to send me a bill. And prosecutors
allowed the witness, Bill Allen, to testify falsely that he was
just trying to cover up his ass.
Mr. Schuelke. Well, the note from Senator Stevens in 2002
to Mr. Allen said, Bill, when I think of all the ways you help
me, I lose count, but you have to send me a bill. And I am
going to have Bob Persons talk to you. So don't get PO'd at
him.
Mr. Johnson. Okay.
Mr. Schuelke. Six years later Allen testified at the
trial----
Mr. Johnson. Okay. We are getting into the weeds now. I
just wanted that particular statement. My time is getting ready
to run out, and I hate to interrupt you. But why was there no
prosecution recommendation to charge any of the prosecutors
with the same charge that probably should have been leveled
against Bill Allen back in 2004; it is 18 USC 1622, subornation
perjury. And has there been a recommendation to the State bar
of the State where these gentlemen, the prosecutors practiced?
Mr. Schuelke. Not that I am aware of.
Mr. Johnson. And they have not been prosecuted; no
recommendation; no sanction has been applied to them?
Mr. Schuelke. To the Stevens prosecutors?
Mr. Johnson. Yes.
Mr. Schuelke. Not that I am aware of.
Mr. Johnson. And you do say, though, that Senator
Murkowski's legislation should go a little bit further and make
sure that the gatekeeper is not the sole keeper of that file
insofar as Brady and Giglio materials are concerned.
Do you think that it would be a good idea for the judge to
have to look at that case, look at the case file, make a
determination independently that there is no--or all
information that should have been disclosed has been disclosed,
and then seal that, file a copy of that file, what he has
reviewed in the clerk's office for purposes of later appeals?
Do you think that is a reasonable way of going about getting
this responsibility out of----
Mr. Schuelke. It is a reasonable way of going about it,
assuming that the prosecutor first says, I am in doubt about
whether I should disclose this. I will submit it to the judge
in camera and let the judge decide. But the prosecutor first
has to get to that point in his own analysis.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Puerto Rico, Mr. Pierluisi.
Mr. Pierluisi. Good morning, Mr. Schuelke.
Mr. Schuelke. Good morning, sir.
Mr. Pierluisi. As I understand the Supreme Court case law,
the Supreme Court has set a constitutional minimum in this
area. So States, and I would assume also this Congress,
Congress can set a higher standard and change the rule so that
it is more favorable to the defense and to the process as a
whole.
You mentioned before that in your view, the materiality
requirement shouldn't be there. I heard that. Apart from that,
do you have any other suggestions to us in terms of how to go
about changing the rule? Are we talking about amending rule 16?
And if so, in what fashion would you recommend that we would do
so?
Mr. Schuelke. Well, as you may know, sir, the Rules
Committee of the Federal Judiciary has been contemplating such
a change since 2006, I believe, and has rejected suggestions
that rule 16 be amended to accomplish this purpose. As I
recall, when most recently the Rules Committee took it up, they
had available to them a poll that was taken of sitting Federal
judges across the country, and slightly in excess of 50 percent
of the Federal judges recommended an amendment to the rule. The
Justice Department opposed such an amendment, and the views of
the Justice Department, as I understand it, carried the day.
So I persist in the view that such a change is necessary.
And while it could be accomplished by an amendment to rule 16,
that has not occurred, and I think if the Rules Committee is
not going to do it, the Congress should.
Mr. Pierluisi. And in your view, is the prosecutor's intent
to use or not to use the evidence a relevant factor here, or
not?
Mr. Schuelke. I am not sure I understand the question. The
prosecutor's intention to----
Mr. Pierluisi. Yeah. Because some of the case law seems to
suggest and rules also that one of the relevant factors in
determining whether you turn over this type of evidence to the
defense is whether the prosecutor intends to use it at trial.
And in my view, that shouldn't be a factor. And I want to hear
from you about it.
Mr. Schuelke. I quite agree. That should not be, and I
don't know that it typically is a factor.
Mr. Pierluisi. Okay. And we have been talking about
Congress. Now would you turn your attention to DOJ? The U.S.
attorney manual, as you know, is binding on the prosecutors and
internally can be used for disciplinary purposes but it has no
bearing--it has no remedy for the defense. So that is a flaw. I
have seen that they have made some revisions to it. I have seen
that training has been enhanced in this area. Is there anything
else that the Department of Justice should be doing so that
this type of conduct doesn't happen again?
Mr. Schuelke. Well, as you have pointed out, the
Department, through its U.S. attorney's manual, has a
provision, which has recently been revised, together with
guidance from the then-deputy Attorney General Ogden, right
after the Stevens trial, which as a matter of policy tells the
Federal prosecutors that they are to disclose Brady and Giglio
material. They are to take a liberal view of it, and in most
cases, they are not to impose this materiality standard.
As you have also observed, the U.S. attorney's manual has
an explicit disclaimer that these policy pronouncements do not
have the force of law, and they vest in no one any rights. I
believe if the Justice Department, as expressed in the U.S.
attorney's manual, is of the view that the materiality
requirement ought to be eliminated, then I see no principled
reason why they would oppose legislation which does, of course,
have the force of law to accomplish the same thing.
Mr. Pierluisi. Thank you.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentlewoman from Florida, Ms. Adams.
Mrs. Adams. Thank you, Mr. Chairman. Knowing that, how was
the Stevens trial team structured?
Mr. Schuelke. How was it structured?
Mrs. Adams. Uh-huh.
Mr. Schuelke. Very shortly before the indictment was
returned in July of 2008, Brenda Morris, who was a deputy chief
of the Public Integrity Section, who up until that point had
very limited involvement in the Stevens investigation, was
tapped by the Office of the Assistant Attorney General for the
criminal division to be the lead trial prosecutor.
The team in the courtroom, in addition to Ms. Morris, was
Mr. Nicholas Marsh and Mr. Joseph Bottini. Mr. Marsh was a
public integrity lawyer. Mr. Bottini was an assistant U.S.
attorney in the district of Alaska. They had significant
experience in this public corruption investigation in Alaska
because Mr. Goeke, the other Alaska assistant U.S. attorney,
and Mr. Marsh tried the first of the two State legislators,
whose cases I have described, and Mr. Bottini and a young
Public Integrity lawyer named Edward Sullivan tried the other
one. So that was the composition of the trial team.
Mrs. Adams. Do you believe that the six prosecutors who
were the subject of your inquiry were candid, forthright,
truthful with you during the course of your investigation?
Mr. Schuelke. I believe that they were.
Mrs. Adams. Can you explain your references in the report
to the simultaneous and collective memory failure, I guess it
is of Messrs. Bottini, Marsh, Goeke and Sullivan, to recall the
details of their interview with Bill Allen on April 15, 2008?
Mr. Schuelke. Can I explain the memory failure?
Mrs. Adams. Your references to that. Because you just said
they were being forthright.
Mr. Schuelke. All of them participated in the interview of
Mr. Allen on April 15, 2008. All of them took notes, in which
they recorded what he said. Five months later, Mr. Allen has a
dramatically different--indeed, a polar opposite--account from
the one he gave them in April. And all of them, to a person,
maintained that they had no memory of him having said what he
said on April 15.
As I say in the report, I was unable to determine by
compelling evidence that any one of them, in fact, remembered
what had transpired in that April interview and falsely
represented that they had not.
Mrs. Adams. At this time I yield to Mr. Gowdy.
Mr. Gowdy. Was this what we sometimes refer to as an open-
file case? Or did they try to follow the statute?
Mr. Schuelke. In the Stevens case?
Mr. Gowdy. Right.
Mr. Schuelke. It was not a so-called open-file discovery
practice.
Mr. Gowdy. If DOJ adopted an open-file status for all of
its cases, how many of the concerns raised by our colleagues on
the other side would go away?
Mr. Schuelke. Some, but not all.
Mr. Gowdy. Can you give me an example of something that is
potentially impeachment material but not material; doesn't meet
the materiality element but is potentially impeachment, Giglio
material.
Mr. Schuelke. I suppose a witness could testify at a trial
that the crime he or she observed occurred on a Tuesday, and
that witness could have testified--or in the course of an
interview earlier, stated that it occurred on a Thursday. The
accounts of the events themselves might in both the interview
and the trial testimony have been otherwise altogether
consistent. And one can make an argument that the witness'
memory at one point, months ago, that it was a Tuesday versus
memory that it was a Thursday at the trial was not material.
Mr. Gowdy. Well, my time is out. But I appreciate your
testimony. And I would hope you would come back at some point.
You are a former prosecutor. There are other former prosecutors
up here. Reciprocal discovery is something I would like to get
your perspective on as well, because I can't recall the name of
any criminal defense attorneys--at least in my experience--that
have been disciplined in any way for not meeting the reciprocal
discovery requirements. And that may be a source of frustration
for prosecutors.
Mr. Sensenbrenner. The gentleman's time has expired. Mr.
Schuelke thank you very much not only for coming today and
answering the questions that we all have relative to this
prosecution and your report, but also the extensive time you
spent putting together an extremely thorough report on a very
messy and sad experience in the history of the Justice
Department. So I think the entire country should thank you for
your efforts on that. And hopefully your report and what has
transpired in the Stevens case will prevent this from happening
again. So thank you.
Mr. Schuelke. Thank you, Mr. Chairman. I appreciate your
hospitality.
Mr. Sensenbrenner. Yes. Thank you.
Okay. We will now go to the second panel of witnesses.
Kenneth Wainstein is a partner in the law firm of Cadwalader,
Wickersham & Taft where his practice focuses on corporate
internal investigations. He is also an adjunct professor at
Georgetown law school. Mr. Wainstein served as an assistant
U.S. attorney both in the Southern District of New York and the
District of Columbia. Later he served as the U.S. Attorney in
the District of Columbia, and then was the first assistant
attorney general for national security. He has served as FBI
Director Robert Mueller's chief of staff and then as President
Bush's homeland security adviser. He received his undergraduate
degree from the University of Virginia and his law degree from
the University of California at Berkeley.
Alan Baron is the senior counsel at the law firm of
Seyfarth Shaw where his practice focuses on white-collar
criminal defense. He has served as special impeachment counsel
to the U.S. House of Representatives three times, and most
recently he was Special Counsel in the impeachment of Judges
Samuel Kent and G. Thomas Porteous. He also is minority chief
counsel to the Senate Governmental Affairs Committee and served
as an assistant U.S. attorney in Maryland. He received his
undergraduate degree from Princeton and his law degree from
Harvard.
As I said earlier, I will swear the witnesses in. Could the
two witnesses please stand, raise your right hand.
[Witnesses sworn.]
Mr. Sensenbrenner. Let the record show that both witnesses
answered in the affirmative. Their written statements will be
entered in the record in their entirety. And you all have been
up here before, so you know about green lights, yellow lights,
and red lights.
Mr. Wainstein.
TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, CADWALADER,
WICKERSHAM AND TAFT LLP
Mr. Wainstein. Thank you, Chairman Sensenbrenner, Ranking
Member Scott, Members of the Subcommittee. I am here with two
of my colleagues, Jeffrey Nestler and Sara Zdeb. And together,
we are proud to represent assistant United States attorney Joe
Bottini in this matter. We are here today for one reason: to
demonstrate that the Special Prosecutor got it simply wrong
when he found that Joe intentionally violated the rules in the
Stevens case.
First let me take a minute on who Joe is. Joe is a 27-year
veteran of the Alaska U.S. attorney's office. He is universally
respected by the Alaska bench and bar, has never had a single
allegation of misconduct against him. He has tried and
prosecuted hundreds of cases. And the only recognition he wants
in life is to be counted among those prosecutors who go to work
each day seeking to do justice for the American people. In
short, and in my eyes, Joe is a model public servant.
Joe is also something else. He is human. He makes mistakes.
He acknowledges he made mistakes, serious mistakes in the
Senator Stevens case. And he acknowledges and he greatly
regrets the impact those mistakes had on the integrity of that
trial and on the public's perception of the Justice Department.
But Joe does not acknowledge, I do not acknowledge and, most
importantly, the facts do not acknowledge that Joe committed
those errors purposely or with any bad faith.
The Special Prosecutor's report, as you know, concluded
definitively that he did. While the report goes on for some
500-odd pages, it really distills down to just two findings
about Joe: one, a finding that Joe committed errors; and two, a
finding that those errors were intentional. What is completely
missing, however, is any connective tissue between those two
findings, any actual support for the conclusion that Joe's
errors were intentional as opposed to inadvertent.
In fact, there is really no analysis of Joe's intent at
all. We have carefully gone through the 514 pages and have
found a grand total of one paragraph that reports to analyze
the intent behind Joe's conduct, one single paragraph for the
most critical question in the whole investigation.
Professional prosecutors understand that every error is not
a crime, and that they have a duty to carefully distinguish
between mistake and misconduct before concluding that somebody
is guilty of an intentional crime.
The Special Prosecutor's report failed to uphold that duty
in just about every respect. First, the report fails to take
into account the conditions under which the prosecutors were
working before and during trial. And the Chairman mentioned
these earlier today. Circumstances that made it likely that
balls would be dropped and made it therefore more likely that
mistake rather than misconduct was behind any errors;
circumstances such as the complete failure by the Public
Integrity Section management to do its job; the severely
shortened time period for trial preparation; and the combative
defense tactics that kept the prosecutors off balance during
trial, all highly relevant circumstances and none given any
real consideration by the report.
Second failing: The report fails to consider critically
important mitigating circumstances, such as the fact that Joe
is universally admired by his defense counsel adversaries as,
quote, a man of high moral character and as, quote, the kind of
person for whom the expression ``straight arrow'' was invented.
And also, the fact that on seven different occasions, Joe
actually pushed his Public Integrity Section supervisors to
disclose the very information the Special Prosecutor's report
accuses him of trying to suppress, requests that were firmly
denied each time.
Third failing. The report mischaracterizes important facts
in a way that puts a nefarious slant on Joe's conduct by
saying, for example, that Joe made a prejudicial argument in
his closing jury address, an argument that is not found in the
jury trial transcript.
The report altogether ignores other facts, facts that cut
against its findings. For instance, the report finds Joe guilty
of suppressing Rocky Williams' assumption about the Senator
paying for the work on his house, but never addresses the fact
that Joe's outline for his direct examination of Rocky Williams
had an entry showing that Joe intended to elicit that very
assumption on the record in open court, a circumstance that
completely undermines a finding of intentional misconduct and a
circumstance that should have been front and center in any
credible consideration of that issue.
As a final failing, the report reflects a process that
showed very little regard for fairness, and, most troublingly,
in the way the investigation concluded with no criminal
charges, but with a public branding of our client as a proven
criminal.
Under our system, professional prosecutors have one way and
only one way to accuse a person of a crime, and that is with
the filing of formal charges that the person can then contest
in open court to defend his liberty and his reputation. That
rule was not followed in this case. The Special Prosecutor
decided not to file charges against Joe but then turned around
and publicly declared to the world that Joe was guilty of the
worst thing one can say about a Federal prosecutor, that he is
dishonest and a cheat. This left Joe with the shame of a
criminal accusation but without any opportunity to show the
American people that that accusation was wrong.
Today, thanks to this hearing, we finally have that
opportunity and we are very grateful to the Committee for
giving it to us. I look forward to this hearing and I look
forward to answering any questions you may have for me.
Mr. Sensenbrenner. Thank you very much.
[The prepared statement of Mr. Wainstein follows:]*
---------------------------------------------------------------------------
*See Appendix for the Addendum submitted with this statement.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Sensenbrenner. Mr. Baron.
TESTIMONY OF ALAN I. BARON, SENIOR COUNSEL,
SEYFARTH SHAW LLP
Mr. Baron. Thank you very much, Mr. Chairman. As you noted
in introducing me, you mentioned that I had been an assistant
United States attorney for Maryland. I think I would only add
to that that during that time, I headed the investigation which
led to the indictment of a former United States Senator, Daniel
Brewster of Maryland. And I am aware therefore--although that
was a long time ago--of the pressure that is put on a
prosecutor when he is involved in a case of such magnitude and
importance. I would note that I have no connection whatever to
the Stevens case, I have no relationship with any of the
individuals involved in that matter, other than having had
minimal contact with Mr. Welch relative to the Porteous
impeachment.
I join with the Chairman in commending Mr. Schuelke for his
comprehensive report. In my view it is clearly the product of
an enormous amount of effort conducted in a highly professional
manner.
So for purposes of my testimony, I accept the accuracy of
his findings of fact; specifically, that by any standard--and I
think I want to keep those words in mind--``By any standard,
the information provided to the prosecutors by Rocky Williams
and Bambi Tyree was Brady material.'' And Mr. Schuelke
concluded that both Mr. Bottini and Mr. Goeke consciously
withheld and concealed this critical information from the
defense, and indeed that there were affirmative
misrepresentations regarding the Tyree information to the
effect that such material did not even exist.
And then Mr. Schuelke also found that Mr. Bottini failed to
take steps to correct false testimony by Mr. Allen on the
witness stand, which testimony Mr. Bottini knew to be false, in
violation of the Supreme Court case Napue v. Illinois.
Mr. Schuelke was appointed to investigate and prosecute
criminal contempt proceedings as may be appropriate against the
prosecutors in this case. Despite having the findings that we
have all referred to this morning, Mr. Schuelke ultimately
concluded that no prosecution for criminal contempt would lie.
According to Mr. Schuelke at a hearing on September 10, 2008,
the judge in the Stevens case failed to issue--I am quoting now
from the report--"a clear, specific, and unequivocal order such
that it would support a finding by a district court beyond a
reasonable doubt that 18 USC section 4013--that is the criminal
contempt statute--had been violated.''
In my view--and I certainly defer to Mr. Schuelke's report,
wherever it purports to find facts and reach conclusions based
on the enormous investigative effort which clearly underlies
it--but the entire transcript of the proceedings on September
10, 2008, is available for review. Anyone here can read--that
is the entire universe contained in that transcript. And one
can therefore reach one's own conclusion as to what transpired
at that critical event. And here, I must regrettably and
respectfully disagree with Mr. Schuelke's characterization of
what occurred.
On September 10, 2008, the court issued a clear,
unequivocal order to the government to produce material
pursuant to Brady and its progeny. Everyone agreed that they
understood their obligation. None of the prosecutors asked for
clarification of what was being ordered. And we must recall Mr.
Schuelke's earlier conclusion that by any standard, even the
narrowest view of what Brady requires, the Williams and Tyree
materials had to be disclosed as Brady material.
In my view, if you accept Mr. Schuelke's factual premise,
the failure to disclose what were clear Brady materials was in
direct violation of the court's order. Now, the fact that there
was no written order entered on September 10 is irrelevant. It
is well established that no written order is required. And it
is noteworthy that Mr. Wainstein, who represents Mr. Bottini,
in a letter to the Attorney General, dated March 15, 2012,
acknowledges A, that no written order is required for contempt
proceeding and that the judge's verbal order at the September
10, 2008 hearing was clear and unequivocal. To me, the judge's
order was clear, as was its violation.
The question is how did this happen? In a sense, it is a
bigger issue. The obvious answer is that overzealous
prosecutors got caught up in a win-at-all cost mentality and
ignored their obligation to prosecute fairly within the limits
imposed by the Constitution.
But I think there is a deeper question here. There seems to
have been a total breakdown of supervision. Who was in charge?
Who would accept responsibility to rein in prosecutors when
they began to violate their constitutional obligations?
What I find--and we can talk about this perhaps in response
to questions, because I see my time is elapsing--what I see
here is a total breakdown in supervision. You might ask, Why do
experienced prosecutors need supervision? Because it puts
someone in a position where they must account for what happens.
And when you don't have that structure, you get the problem of
people going off and essentially doing their own thing, very
much to the detriment of the administration of justice. Thank
you.
Mr. Sensenbrenner. Thank you Mr. Baron.
[The prepared statement of Mr. Baron follows:]
Prepared Statement of Alan I. Baron, Senior Counsel,
Seyfarth Shaw LLP
My name is Alan Baron and I am Senior Counsel to the law firm of
Seyfarth Shaw LLP based in Washington, DC. In the course of my career,
I have served as an Assistant United States Attorney for Maryland,
during which time I headed the investigation which led to the
indictment of former Senator Daniel Brewster for bribery while in
office.\1\ I am aware of the pressures on prosecutors when involved in
a case of such magnitude and importance.
---------------------------------------------------------------------------
\1\ Senator Brewster ultimately entered a plea of nolo contendre
after the Supreme Court rejected his claim of immunity under the Speech
or Debate clause of the Constitution. See United States v. Brewster,
408 U.S. 501 (1972).
---------------------------------------------------------------------------
A substantial portion of my career in private practice over the
years has involved acting as defense counsel in white collar criminal
cases. I am familiar with the requirements of Brady v. Maryland, \2\
Giglio v. United States \3\ and related cases.
---------------------------------------------------------------------------
\2\ 373 U.S. 83 (1963)
\3\ 405 U.S. 150 (1972)
---------------------------------------------------------------------------
I have also served, from time-to-time, as special counsel in the
public sector. I have been retained as special impeachment counsel by
the House of Representatives to pursue the impeachment, trial and
removal of four federal judges, including former Judge G. Thomas
Porteous.
I am appearing before the Subcommittee to testify concerning the
report filed by Mr. Henry Schuelke setting forth the results of his
investigation into possible criminal contempt proceedings against the
prosecutors who conducted the investigation and prosecution of Senator
Ted Stevens of Alaska (hereafter ``the Report''). I should note that I
have no connection whatsoever to the Stevens case and have no
relationship with any of the individuals involved in that matter other
than minimal contact with Mr. Welch, relative to the Porteous
impeachment.
Mr. Schuelke is to be commended for this comprehensive report. It
clearly is the product of an enormous amount of effort conducted in a
highly professional manner. For purposes of my testimony, I accept the
accuracy of his findings of fact, specifically that ``By any standard,
the information provided to the prosecutors by Rocky Williams and Bambi
Tyree was Brady material'' (the Report at 500).\4\ The Report concluded
that Mr. Bottini and Mr. Goeke consciously withheld and concealed this
critical information from the defense. Indeed, the Report states that
there were affirmative misrepresentations regarding the Tyree
information to the effect that such materials did not exist (the Report
at 503).
---------------------------------------------------------------------------
\4\ Rocky Williams was foreman for the renovations on the Stevens'
house. He told prosecutors, based on statements made by Bill Allen, his
boss, and by Senator Stevens, he understood that all charges would be
added to the bill submitted to Senator Stevens by the subcontractor.
This corroborated the heart of the defense case. Senator Stevens
maintained that when he paid the bills submitted to him, he understood
he was paying for everything he owed.
Bambi Tyree was an underage prostitute with whom Mr. Allen had a
relationship. Allen was a major prosecution witness against Senator
Stevens. In an unrelated case, Tyree was interviewed by the FBI. The
FBI memorandum of that interview states that Tyree submitted a false
affidavit at Allen's request denying her sexual relationship with
Allen. The Government in that case filed a memorandum under seal which
stated Allen had procured the false affidavit.
---------------------------------------------------------------------------
Finally, Mr. Schuelke found that Mr. Bottini failed to take steps
to correct testimony by Mr. Allen on the witness stand which Mr.
Bottini knew to be false in violation of Napue v. Illinois \5\ (the
Report at 503).
---------------------------------------------------------------------------
\5\ 360 U.S. 264 (1959). When Allen was interviewed by prosecutors
shortly before trial, he changed his version of the facts on a critical
issue for the defense. For the first time, Allen characterized
memoranda Senator Stevens had sent to him in 2002 asking Allen to be
sure and send Senator Stevens a bill for the work, as ``cover your
ass'' memos. When asked on cross-examination at trial whether his
characterization of the documents as ``cover your ass'' memos was
something he had just recently told prosecutors, Allen said ``no.''
That answer was false, but no effort was made to correct the testimony.
---------------------------------------------------------------------------
Mr. Schuelke was appointed ``to investigate and prosecute criminal
contempt proceedings as may be appropriate against the prosecutors in
this case'' (the Report at 1). Despite having found that Mr. Bottini
and Mr. Goeke intentionally withheld and concealed material exculpatory
information which was required to be disclosed to Senator Stevens and
Williams & Connolly by Brady and Giglio (the Report at 36), Mr.
Schuelke ultimately concluded that no prosecution for criminal contempt
would lie. According to Mr. Schuelke, at a hearing on September 10,
2008, the judge in the Stevens case failed to issue ``a clear, specific
and unequivocal order such that it would support a finding by a
District Court beyond a reasonable doubt that 18 U.S.C. Sec. 401 (3)
had been violated'' (the Report at 513).
In my view, Mr. Schuelke's report is entitled to deference where it
purports to find facts and reach conclusions based on the enormous
investigative effort which underlies it. However, the entire transcript
of the September 10, 2008 hearing is available for review so that one
can reach one's own conclusion as to what transpired at that critical
event. Here, I must respectfully disagree with Mr. Schuelke's
characterization of what occurred. On September 10, 2008, the court
issued a clear, unequivocal order to the government to produce material
pursuant to Brady and its progeny. Everyone agreed that they understood
their obligation. None of the prosecutors asked for clarification of
what was being ordered. We must recall Mr. Schuelke's earlier
conclusion that ``By any standard . . .'' the Williams and Tyree
materials were Brady. Accordingly, failure to disclose what were clear
Brady materials, was in direct violation of the court's order.
The fact that no written order was entered on September 10 is
irrelevant because it is well established that a written order is not
required. See In re Hipp, Inc., 5 F.3d 109, 112 n.4 (5th Cir. 1993). It
is noteworthy that Mr. Wainstein, counsel for Mr. Bottini, in a letter
to Attorney General Holder dated March 15, 2012, acknowledges that no
written order is required for a contempt proceeding and that the
judge's verbal order at the September 10, 2008 hearing was clear and
unequivocal.
Based on the foregoing, I believe that Mr. Schuelke's rationale for
not proceeding is unpersuasive. There may be many reasons for a
prosecutor to exercise discretion and decide not to prosecute a case,
but the reason stated here in not convincing. The judge's order was
clear as was its violation.
It is fair to ask ``how did this happen?'' The obvious answer is
that over-zealous prosecutors got caught up in a win at all costs
mentality and ignored their obligation to prosecute fairly and within
the limits imposed by the Constitution. The question remains, however,
where was the supervision which would have operated as a reality check
to rein in prosecutors who, according to the Report, engaged in
``systematic concealment of significant exculpatory evidence which
would have independently corroborated Senator Stevens' defense and his
testimony, and seriously damaged the testimony and credibility of the
government's key witness.''?
It is clear from the Report that there was a breakdown in
responsibility and accountability in how the case was being handled.
Brenda Morris, Principal Deputy Chief of the Public Integrity Section,
was thrust into the role of lead prosecutor just a few days before the
indictment was filed in a case which had been investigated for two
years. According to Ms. Morris, she had resisted being put in the
position of lead counsel several times. (See Exhibit 4 in the Addendum
to the Report.) Once in the position, she was well behind the curve in
mastering the facts and was faced with resentment by the prosecutors
who had been on the case. Her solution, in her own words was, ``to make
herself as little as possible'' (the Report at 3). In essence, she
accepted the position of lead counsel without accepting and exercising
the responsibilities inherent in the role. This was at least part of
the reason the case imploded. No one was supervising the prosecutors in
a meaningful way. This does not in any way excuse the misconduct, but
it is part of the explanation for how matters got to the sorry state
set out in the Report.\6\
---------------------------------------------------------------------------
\6\ The Report exonerates Ms. Morris of knowingly and willfully
withholding Brady and Giglio information from the defense (the Report
at 506).
---------------------------------------------------------------------------
The vast majority of federal prosecutors perform their roles with
integrity and in conformity with their sworn obligation to uphold the
law. Matters went terribly awry in this case, and it is to Attorney
General Holder's credit that he decided to dismiss the Stevens case
with prejudice, in effect, expunging the verdict.
__________
Mr. Sensenbrenner. Mr. Wainstein, I think that Mr. Bottini
was very clearly the most experienced of the prosecutors that
were prosecuting Senator Stevens. And I just look at the long
litany of errors that occurred, and ignoring the judge's
admonition. You know, for example, during one hearing, the
judge admonished the prosecutors that the government has an
obligation to turn over the Brady and Giglio information, and
if they don't want to do that, they ought to resign.
And then there were some letters that Mr. Bottini authored
relative to the Brady and Giglio issues that were sent to
counsel for Senator Stevens. In one of those letters Mr.
Bottini failed to include significant Brady information
provided to him by Rocky Williams, which a few days earlier
corroborated Senator Stevens' primary defense. In your written
testimony, you said, Mr. Bottini only skimmed the second of the
two Brady letters, which also, according to Mr. Schuelke,
contain significant misstatements and conceal the importance of
important Brady and Giglio information. At trial, Mr. Bottini
did not correct Bill Allen's false testimony on cross-
examination. On September 10, the judge issued a clear order to
the prosecutors to comply with Brady and Giglio or it would
support a criminal contempt prosecution.
Mr. Williams was sent to Alaska, and Mr. Bottini apparently
had some role in making that decision. Mr. Allen suborned
perjury. That information was not disclosed. And Mr. Bottini
did not produce counsel for Senator Stevens' April 15, 2008
interview notes of Bill Allen pursuant to Brady or Giglio.
Now it is going on again and again. And we know of at least
two admonitions from the bench to either produce the
information, resign, or face criminal prosecution. Mr. Allen's
false testimony was not corrected on cross-examination.
Now, this is an experienced prosecutor. And it was up to
the Department of Justice to determine when to file the
indictment. Senator Stevens was up for reelection 4 months
after the indictment was filed. And as one who has run for
office numerous times, it is pretty hard to get reelected when
you are indicted, you don't have an opportunity to have a jury
decide your guilt or innocence. And that is, the timing that
the Justice Department undertook in determining when to file
the indictment I think practically guaranteed that Senator
Stevens' attorneys would have asked for a very speedy trial.
And finally, there was the complaint that the defense
counsel was very aggressive in the presentation of their case.
Now, it has been a long time since I have tried cases in court.
And I always thought that the counsel, pursuant to rules, was
on an ethical obligation to present a vigorous case for their
trial. You know, you say that Mr. Bottini was caught up in the
milieu of the trial and the lack of supervision from on high.
But he was so experienced, couldn't he overcome that? Or
couldn't he throw the red flag down on the field and tell his
superiors in the Justice Department that they ought to have a
hand on the tiller?
Basically what I hear from you, Mr. Wainstein, is that
well, he did the best he could under the circumstances, and it
was the folks up above him that kind of dropped the ball. And I
will give you a chance to answer my 4\1/2\ minutes of a litany
of things that are in the report. And forget about the red
light, because I am not going to ask a follow-up question.
Mr. Wainstein. Thank you, Mr. Chairman. You gave me a lot
to chew on here. Let me start off. First, Joe is not saying--
not pointing fingers at the people above him. He is not saying
that he didn't do anything wrong. He will say he wishes he did
throw a flag. He just bore down and worked on his little area
and didn't say, you know what, we really need to do this, we
need to stop the presses here, go back to the beginning and try
to fix this. And he wishes he did. So he is not saying that
this is all somebody else's fault. He is accepting
responsibility for the mistakes and the miscalculations he
made.
Another thing I would like to mention is, you know, you
mentioned zealous advocacy by defense counsel. I am not
complaining about their work. They are very a successful
defense counsel and they do a great job for their clients. My
only point is, that is a circumstance that kept the prosecutors
on their heels, confused, running here and there, and they
never really got their sea legs at trial. And that is one of
the reasons why mistakes were more likely, because the critical
thing that we have focused on is, is there intentional conduct
here or is it mistaken conduct?
And the circumstances that we have laid out here, we have
laid out with the intention of showing you that this really was
a series of mistakes. Now, you have laid out a number of the
things that the report indicates that my client is guilty of.
Now of course, you are characterizing the facts as
characterized in the report. You are accepting the conclusions
that these things were done intentionally. And I understand
that, because your basis of knowledge is the report.
What I am doing is--on behalf of Joe, and frankly on behalf
of the other subjects--pushing back on those assertions by the
Special Prosecutor, because I think the Special Prosecutor,
like you, did a tremendous service to the country here and it
was a tremendous challenge what he had to deal with. But I
believe that he got some of the facts wrong and he got the
inferences wrong.
So if you look at a few of the things raised, it is not so
clear-cut. For instance, the question about whether Bill Allen
provided perjured testimony or wrong testimony that Joe should
have corrected. If you actually go back and look at the record,
you will see why Joe realized he was totally confused, and the
jury who had already--Joe had already advised the jury that Mr.
Allen had some cognitive impairments, that he had some serious
problems, and those problems actually played out while he was
on the stand. The jury understood that he would get confused
and he got confused.
I think his final question was, hell I don't know what day
it was that I talked about this. Joe's recognition--he
explained this to Mr. Schuelke--was I realized he was confused.
If I tried to clean it up, it would get worse. And the critical
thing is that Joe did not use that information, did not try to
take advantage of it in his closing argument by suggesting that
Allen had not just recently told him this information. He
didn't exploit it at all, even though defense counsel raised
that issue. My point is, he had a reason for what he did which
was not nefarious, was in fact understandable.
Rocky Williams, the only other example I would like to
cite. He talked about how he learned that Rocky Williams had
this assumption that Senator Stevens was going to pay for that
work. He did. Rocky Williams told Joe this, and Joe thought
about it. He has explained this to Mr. Schuelke. He thought
about, boy, this is an assumption by a person who is working on
a work site that the guy who owns that work site, the house
there, is going to pay for that work. Is that something that we
need to turn over to defense?
He asked a critical question: Did you Mr. Williams, Rocky
Williams, tell the Senator or the Senator's wife that the
charges for the work were all going to be put in the
Christensen Builders bills that you are paying? ``No, I didn't
but I assumed that.''
Well, frankly, Joe's thinking was, everybody on that work
site assumes that the owner of the house is paying for the
construction on that house. I think we would all assume that.
That is not something that can be elicited on the stand. That
is just speculation, and is not something that is disclosable.
Now, you can take issue with that decision. My point is, he
had a reasonable basis for the decision he made that is far
from criminal intent to hide facts that should have gotten to
the defense, even though one can question whether, you know, in
retrospect he should have made the other decision.
Mr. Sensenbrenner. Thank you. The gentleman from Virginia,
Mr. Scott.
Mr. Scott. Thank you. Thank you, Mr. Chairman. Mr.
Chairman, I am not as concerned about the individual
prosecutors involved. Their fate will be determined in another
forum. But it does show, I think it is clear particularly from
what we have heard from the Chairman and from the gentleman
from South Carolina, that things didn't go right in this trial.
It should have been treated differently.
And if this kind of stuff happens in a high-profile case
like this, you can only imagine what happens in the run-of-the-
mill cases. In most cases, this kind of information would never
come to light.
So we have a question of whether or not we need to change
our procedures, particularly in light of the laboratory scandal
that has just come to light. So in terms of what the standard
ought to be going forward, does anybody think admissibility
ought to be part of the standard if it is evidence that Brady
information has to be admissible? I know in civil standards, if
it would lead to admissible evidence it would help impeach
witnesses, it would help the investigation, even if it is
hearsay, or if it helps settlement you can get discovery in
civil cases, and it has nothing to do with admissibility.
Should admissibility be part of the standard going forward?
Mr. Baron. Let me respond. Usually when you are talking
about Brady material, it is material that the prosecution does
not want admitted, I mean, because it is going to tend to be
exculpatory. It may be material that the defense wants to
admit. And certainly if it is relevant and material, it
certainly should be admitted, if that is your question.
Mr. Scott. Well, should that be part of the standard? It
wouldn't have to be admissible evidence. It could be hearsay
and other things that are clearly inadmissible that would be
helpful to the prosecution. So admissibility is not going to be
part of----
Mr. Baron. Admissibility of the evidence in and of itself
should not be the standard. It is whether it might lead to
evidence that could be used in that way.
Mr. Scott. Okay. So we are back to material. Is there any
suggestion that the standard on review, on appellate review
ought to be different? The standard on appellate review
suggests that the availability of the Brady material could have
changed the result. Could have--not necessarily--but could
have. Is there any suggestion that that standard on appellate
review be changed?
Mr. Wainstein. I think there is talk about that. I don't
know that--I see problems with that. If you were to change
the--or to take materiality out of the appellate standard, then
every little deviation--let's say to talk about it in a Giglio
context, impeachment, to use the example that Mr. Schuelke
cited before, about a Tuesday versus a Thursday. You would be
litigating every little discrepancy. So there would be no
finality to cases, and you would end up with cases being
reversed for what really is not outcome determinative.
Mr. Scott. So if all of these proposals will not change the
standard on appellate review, are we just talking about good
practice and not really changing the law?
Mr. Baron. I think that the materiality standard--and I
think Mr. Schuelke made the point earlier; it is very difficult
for someone who is a prosecutor to put himself in the shoes of
defense counsel in a hotly contested case and figure out what
is material, what is not material, what is relevant, what is
not relevant. Indeed, the prosecutor may not really know just
what his defense strategy is going to be. How can he make the
judgment in a vacuum?
So I think that to the extent that one continues to impose
a materiality standard, it makes it harder and harder for the
prosecutor to make a judgment that is sound. And so therefore I
think that is the push of removing that standard because it is
unrealistic to expect the prosecutor to make that judgment and
indeed very difficult for an appellate court to make that
judgment.
Mr. Scott. Well particularly because neither may know what
the defense knew, and this could be the key little connection
that could help them make their case and be material to the
defense, but the prosecution had no way of knowing that it was
that important information.
Mr. Baron. Exactly.
Mr. Scott. Now on appellate review, if it turns out that
way, and you hadn't released it, you would have a Brady
problem.
Mr. Baron. Yes.
Mr. Scott. So we are talking about good practice; don't get
into Brady problems that you can avoid. Just release it all.
But you are not talking about changing the standard on review.
If it in fact was not material, then there should be--are you
suggesting that there is no sanction?
Mr. Baron. I think that--to the extent that on appellate
review, the court--it is going to be a pretty extreme case that
where an appellate court will feel it is in a position to,
let's say, reverse a conviction for failure to disclose I think
will be material evidence.
I agree with Mr. Wainstein that to the extent--you don't
want the appellate courts getting bogged down in every
relatively minor instance that something was not turned over.
If it would not have had some material effect, it seems to me
that that is asking too much. I think you bog down, you clog
the system with a lot of cases on appeal where it shouldn't be
happening.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Gowdy. [presiding.] I thank the gentleman from
Virginia. Mr. Wainstein, I don't really care about how zealous
or not zealous the defense counsel was. I would rather have
good facts than good lawyers. And it just strikes me that the
facts weren't good, which means maybe I am missing something.
If you paid $170,000 for something whose fair market value
is $160,000, even Mr. Scott can't win that case if he is a
prosecutor--I don't think. Am I missing facts? Look, I want to
be sympathetic to prosecutors. I was one for a long time. But
what am I missing?
Mr. Wainstein. Good question, sir. Just keeping in mind, I
represent Joe Bottini. And I will say that Joe was not involved
in the decision to charge the case. When the decision was made
to charge the case, he was actually surprised that an
indictment was actually filed.
Mr. Gowdy. It is not tough to get an indictment.
Mr. Wainstein. No, no, no. I am not making the point that
that passed the threshold. I am saying the fact that it was
actually issued caught him by surprise. He was off working on a
capital case up in Alaska when it was issued. But you know,
having been in main Justice for quite some time, I have often
seen where you have a case that looks a certain way at the
indictment stage and then especially with good defense
counsel--and we had good defense counsel here--get involved, it
starts to morph and it starts to look different. And I am only
speculating because I wasn't inside this process. But sometimes
that happens, where the facts just get worse. I think everybody
would question, you know, why the case was charged. You have
got to remember, it is tough. If you have what looks like a
makable case against a sitting United States Senator, charging
has its consequences. But not charging also has its
consequences. So it is a tough--I just think the people in that
position were in a tough position.
Mr. Gowdy. You were at DOJ for a time period. This practice
of interviewing witnesses without the case agent present, which
at best may potentially make you a witness, at worst leads to
what we are talking about here, wouldn't that have corrected it
if you had had a Bureau agent or an IRS agent or the case agent
present for the interview?
Mr. Wainstein. Yes. I mean in most cases they did as far as
I know, and I think Mr. Schuelke is sort of the expert on the
facts. He indicated that he thought that there was an agent
there, either FBI or IRS agent. Not always the case agent.
One of the problems was--in a couple of the critical
interviews, a 302, an FBI report, was not generated. And
especially in the interview of Bill Allen, on April 15, 2008,
where he made the critical comment--statement which was then--
which he then changed as it got closer to trial, there was no
302 written of that.
And that is one of the problems in the case because
prosecutors didn't have a written record, which they could have
looked at to say, oh, wait a minute; what Bill Allen is saying
now in September is different from what he said in April. So
that was really the main problem. And I don't believe there
were instances where they went forward without agents. They
were smart. They get it. Yeah, if you go in there without an
agent, you are going to make yourself a witness in case
something arises at trial that hearkens back to that interview.
Mr. Gowdy. Well, as you probably noticed, Congress is much
better at doing autopsies than it is at doing well-checkups. We
like to wait until something horrible happens and then we rush
in with a long list of cures, most of which are cures for
symptoms that don't exist. But it does sully the name of 99
percent of the prosecutors who actually do value the
administration of justice more than they do results. And you
don't ever make the news when you don't drop the baby. It is
only when you do that you have your counsel at a House
Judiciary Committee hearing.
So do the rules need to change? Does the law need to
change? Or is this just a case where the rules are sufficient,
they just weren't followed?
Mr. Wainstein. I am not going to pretend to be the world's
expert on this issue, because my focus in this has been
different. It has been Joe. But I think, as someone has said
earlier, the rules here were sufficient. And I think especially
in the aftermath of this, I give a lot of credit to the
Department for what they did, where they have tightened up
training, expanded training and that their whole focus is,
okay, we are going to give guidance to the prosecutors that
they turn over all exculpatory, all favorable information to
the defense without regard to the materiality requirement. But
we want the law to be a materiality requirement.
So that if we don't turn over the Tuesday versus Thursday
thing, because we just overlooked it, that we are not going to
then put a conviction in jeopardy or really undermine the
process of----
Mr. Gowdy. So an open-file policy by not an open-file law?
Mr. Wainstein. Well, I don't know if I would say open file.
The prosecutor's job is to turn it over whether it is through
open file or just telling them, providing the relevant
documents to the defense, if they find something favorable, and
don't just hold onto it because it is not favorable information
that is material.
And I think having that as the policy guidance and the law
being, okay, but we only actually take action against the
prosecutors and against their case if it was material
information that wasn't turned over. I think that is a good
approach if well trained and well carried out and well
supervised. And 99.99 percent of the criminal trials should go
smoothly.
Mr. Gowdy. My time is up. And I think the Chairman is back.
Mr. Sensenbrenner. [Presiding.] The gentleman from Georgia,
Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
There are two issues that I am concerned with. One is the
prosecution being the gatekeeper or the keeper of the file and
having the unbridled discretion with which to decide whether or
not to disclose information that might be exculpatory to guilt
or of impeachment value to the defense. So with that unbridled
discretion, it means that most failures to disclose evidence
will never be decided--or would never be discovered because at
no point during the initial prosecution, the trial, the appeal,
at no point does the defense have the right to peruse the
entire prosecution file.
And I can tell you that this is not the first time this has
happened. It happens many times. It even happened in a death
penalty case that I handled out of Georgia, that we got the
case reversed because the prosecutor used perjured testimony,
knowingly, knowingly used perjured testimony. This is in a
death penalty case. So this desire to win at all cost, I am
afraid is a little more prevalent than we may admit.
And then my second problem is that whenever it is
discovered, then nothing happens to the prosecutor. People
think that lawyers are--you know, make up kind of a good-old-
boy club-type situation, and they are supposed to discipline
themselves. They don't want another outside force outside of
the bar to discipline lawyers. And that is why under most State
bar rules, lawyers have an obligation to--when a substantial
question as to the lawyer's honesty, trustworthiness, or
fitness as a lawyer is in question, then they have an
obligation by their State bar association to disclose that
information.
We have a reluctance to disclose misconduct. It is like
tattling on our club member. And that, if it continues, will
result in a public demand that the power to discipline lawyer
misconduct be put in the hands of nonlawyers, and I don't think
we want that. So we need to be cognizant of our obligation to
disclose any case where there may be a question about whether
or not something was untruthful or not.
Now, as far as a remedy for this situation, upon motion of
a defense counsel or the State for an in-camera review of the
entire State's file and a continuing obligation thereafter to
disclose, all the way through appeal, such information, to
require that by statute, to require that the court do that by
statute, is that a workable solution to this first problem that
I cited about the prosecutor being the unbridled gatekeeper?
Mr. Baron.
Mr. Baron. I think it is a nice idea. But I think from a
practical matter there would be something of an uproar by the
judges that they don't have the time to be burdened with that.
And also, they know about a case. They may have had a couple of
hearings in it, but they don't know the case in depth. So to
put that burden on them and expect them to be the gatekeeper,
even though we like the fact that they are neutral, rather than
a prosecutor who is in an adversarial process, it is a huge
burden to impose on the courts.
And I think implicit in your question is, How do we
legislate integrity? And can we? Because ultimately what we see
from what Mr. Schuelke found in his report, even if you had had
open-file discovery, complete access, things never got into the
file that should have been there. Or 302s, the FBI interview
form, were edited in such fashion that the exculpatory
information was left out and the inculpatory stuff was left in.
So ultimately, even the most prophylactic approach is going
to turn on the integrity of the people who are serving as
prosecutors. I think some of these steps might be a step in the
right direction, but we shouldn't kid ourselves. If what
happened here--if Mr. Schuelke is right about what happened
here, this was really pretty terrible. I don't want to put too
fine a point on this. It is pretty terrible. And prosecutors
engaged in that kind of conduct, no amount of reviewing the
file is going to really reveal that, because they were hiding
things, according to Mr. Schuelke. And that is pretty awful.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentlewoman from Florida, Ms. Adams.
Mrs. Adams. Thank you, Mr. Chairman. That kind of is very
bothersome to me as a law enforcement officer.
You mentioned in your opening statement the breakdown in
supervision. Would you like to elaborate on that? Would you
care to elaborate on that a little bit further? I think from
what you are saying here, there was a definite breakdown.
Mr. Baron. Yes, of course. I have over the course of my
career run a number of investigations, some very big ones where
I had a dozen lawyers and a dozen forensic auditors conducting
an investigation, and much smaller ones where there were three
or four of us.
What seems to have happened here--it was very interesting.
When Mr. Schuelke was asked to describe what was the
administrative structure, he started with the trial itself. But
who was running the show for the 2 years that the investigation
was going on? When I read the report, I couldn't figure out who
was in charge, which is kind of shocking and I think can lead
to all kinds of problems.
The thing is that even when Brenda Morris was appointed,
apparently she was appointed the lead prosecutor a few days
before the indictment came down. Apparently, prior to that,
according to her submission she made, had basically declined
several times taking the role of lead prosecutor. I don't know
why she ultimately accepted, whether she was pressured into it,
or decided it was a good idea. But in any event, to push
somebody into that spot was not a good decision.
But then it gets worse. According to her own testimony, she
decided that she would, quote, make herself small in her role
as now the lead prosecutor. That could only make a bad
situation worse. It is basically saying, even though I am
accepting the role of lead prosecutor and all the
responsibility that comes with that, I am not going to exercise
it. I am not going to do that.
In the absence of that, all kinds of very bad things
happen. There has to be a hierarchy when you are running an
investigation or when you are running a case, because with
hierarchy comes structure, and with structure comes
accountability. You can't have people milling around on their
own making these decisions. You need somebody who steps up and
says, I am going to lead this, and if things go bad, I am going
to be responsible for it, and I am going to give everybody
direction. That didn't happen here. It doesn't excuse the
misconduct but it helps explain it.
Mrs. Adams. Thank you. Mr. Wainstein, your specific
criticism about Mr. Schuelke and the way he conducted his
investigation, what are they? And his conclusions? What are
they? What are your specific criticisms about the way it was
handled?
Mr. Wainstein. Well, I guess the general criticism is that
he looked at what were clearly mistakes, very serious mistakes
made on behalf of the whole trial team. And my client
participated in those mistakes as well, and was responsible for
some. He looked at those mistakes. He gauged them as being very
serious and having a serious impact on the integrity of the
trial. And I don't take any issue with any of that. But then he
concluded that they were intentional. And that is the very
critical thing that I am focusing on here, because in my book,
if you are--and I think former prosecutors here would all
agree--if you find a prosecutor who intentionally broke the
rules, punish him to the hilt. That is it. Throw the book at
him. Because one bad apple is going to have serious
implications not only for that person and that person's trial,
but for the whole Justice Department.
But that is very different, though, from making mistakes.
And that is why I wanted to focus--and I think he didn't focus
sufficiently--on the circumstances that were very difficult for
these prosecutors that caused them to make the mistakes they
shouldn't have made, but nonetheless they were inadvertent as
opposed to intentional.
Mrs. Adams. Didn't the court give you an opportunity to
comment on Mr. Schuelke's report and have those appended to the
report?
Mr. Wainstein. The report was----
Mrs. Adams. Did they give you the opportunity, the court?
Mr. Wainstein. The court gave us the opportunity, after
announcing the conclusions, to provide a criticism that could
be appended to the report, but not to provide any input that
might have any impact on the outcome of the report.
Mrs. Adams. Did you choose to do so?
Mr. Wainstein. I submitted a 50-or-so-page memo that we had
provided before that wasn't even mentioned in the report, with
a cover memo. And then Joe said his main concern was talking to
his colleagues and the Attorney General in the Justice
Department.
Mrs. Adams. So you submitted that to the courts to have it
appended?
Mr. Wainstein. Yes. And that was appended. Yes, ma'am. And
then we also provided a letter to the Attorney General.
Mrs. Adams. Okay. Which, if any, of the Brady and Giglio
violations described in Mr. Schuelke's report do you take issue
with?
Mr. Wainstein. Well, I don't take issue with--well, there
are a couple where he determines it is a Brady violation. And I
think there is an argument that it is not a Brady violation. My
criticism is not so much that these were not violations. So if
you look at it from the perspective of Senator Stevens, he was
denied a fair process. No question about it.
My criticism, as I explained earlier, is Mr. Schuelke's
determination that those violations on the part of Joe were
intentional. And my point is, no, they were not intentional.
They were mistakes.
Mr. Sensenbrenner. The gentlewoman's time has expired. The
gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. I thank the Chairman and Ranking Member
for this hearing and thank the witnesses for their presence and
express my deep concern over this question. And I really refer
to the numbers of individuals who have been released under the
new premise of DNA evidence, as led by the Innocence Project.
And the reason why I mention that is because a lot of that has
occurred in the State of Texas.
I know that we are looking at a number of different issues.
But I think the underlying premise, what I want to speak to, is
when people are convicted wrongly and they are incarcerated
inappropriately, because of either a lack of expanded evidence,
an unwillingness to investigate evidence and then, of course,
not presenting evidence or not sharing evidence.
So Mr. Wainstein, within the limits of what you can say,
what is the status of your case, of your client? Where is it?
Is the case completed? Or are you still in the process of
defense of this individual?
Mr. Wainstein. I am actually--I am representing him for
purposes of the investigation that was conducted by Mr.
Schuelke. I also happen to be representing him in regard to the
internal disciplinary process at the Justice Department, and
that is not completed.
Ms. Jackson Lee. And is he, or she, presently still a
functioning prosecutor?
Mr. Wainstein. Yes. Mr. Bottini, a 27-year AUSA, assistant
U.S. Attorney, and is in court, going in and out of court every
day, doing everything from meth cases to--he is doing a case
involving a militia, members of a militia who threatened to
kill a Federal judge. So he is still going in there and doing--
--
Ms. Jackson Lee. So is it in the public domain as to the
reason--is it in the public domain based upon Mr. Schuelke's
report why he did not present that evidence? Is that in the
public domain?
Mr. Wainstein. Yes. Our submissions to Mr. Schuelke in
which I explained the reasons why these discovery violations
happened on the part of Joe, and explained how they were
mistakes, that is in the public domain. That was released with
the Schuelke report. So yes, people see that. And hopefully
people are hearing today that there is another side to the
story, not just a finding of intentional misconduct.
Ms. Jackson Lee. And I don't want to litigate your case,
but I guess since it is in the public domain--Mr. Schuelke's
report--is the explanation that the paperwork was voluminous,
that it didn't come to his attention, what is the parameters of
the explanation of the mistake?
Mr. Wainstein. Well, there are several different things
that Mr. Schuelke has accused him of doing wrong. And he did
make mistakes. He didn't turn over several things that should
have been disclosed.
Ms. Jackson Lee. That he was aware of?
Mr. Wainstein. He was aware of. But one thing he forgot.
Another thing he made an assessment that it was something that
didn't need to be turned over. Another thing, he tried to get
it disclosed but his supervisors wouldn't let him. Seven times
he said to his supervisors in the Public Integrity Section, you
have got to get this out. We have got to disclose it. And they
shut him down. In fact, the section chief supervisor sent him
an email saying, You work for Public Integrity. These are your
marching orders. Stand down.'' That is why that information
didn't get out.
Ms. Jackson Lee. Without litigating his case here, if I
just take the parameters or the framework that you have just
given, I would assume, then, that we look at this question of
either prosecutorial abuse or misconduct, we need to look up
the chain and try to understand what supervisors are told and
what they are not.
Let me quickly ask: This proposed legislation that has been
suggested that might clarify Brady material, would that be
helpful in knowing and having more detailed procedures for
presenting or finding evidence? Both of you, any of you.
Mr. Baron. I would say that eliminating the materiality
requirement for a prosecutor to take into consideration in
making a Brady or Giglio judgment, I think that is a step in
the right direction.
Ms. Jackson Lee. So that means that they would just present
what they had and you don't have the discretion to say, ``No,
this is not really relevant. I will keep this.'' Is that what
you are saying?
Mr. Baron. Well, as I understand the legislation, the
prosecutor is not to say, gee, this might help them but I don't
think it is really material.
Ms. Jackson Lee. That discretion is taken away. It is
supposed to be turned over, even though the issue of
materiality, that is not going to be addressed. You have to
turn it over if it might be helpful to the other side.
Ms. Jackson Lee. I think this is crucial in terms of what
happened to Senator Stevens. And in his death, I apologize for
what happened. And I hope we can correct this situation. Thank
you. I yield back.
Mr. Sensenbrenner. The gentlewoman's time has expired. I
would like to thank all of our witnesses for their testimony
today.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses which we will forward and ask them to respond as
promptly as they can so their answers may be part of the
record. Without objection, all Members will have 5 legislative
days to submit additional materials for inclusion in the
record.
Now in closing, let me say that this is probably one of the
blackest incidents in the history of the Justice Department,
because by their misconduct they have ruined the reputation of
a senior United States Senator and probably caused his defeat
in the election, both by their timing of the indictment, how
the trial was conducted, the lack of supervision by the Justice
Department and the like.
I think culpability here goes beyond the trial team that
actually prosecuted Senator Stevens. There is plenty of
evidence that there was a lack of supervision, that the Public
Integrity Section wanted to get Senator Stevens one way or the
other.
And even though some members of the Public Integrity
Section have been exonerated in the internal review of the
Justice Department, there has to be a review beyond the Justice
Department into exactly what happened.
All of us in law school are reminded that in addition to
being advocates for our clients, we are also officers of the
court. And as officers of the court, we have taken an oath to
attempt to have justice administered fairly and impartially,
which means that it is based upon all of the evidence and the
applicable law.
As one of my colleagues on the panel has indicated earlier,
I think that this terrible miscarriage of justice warrants the
investigation of the D.C. bar into whether any of those who
were involved in this should be disciplined, with penalties up
to disbarment.
I don't trust the Justice Department to conduct an
impartial investigation. We have heard time and time again that
the marching orders were to win at all cost, and to forget
about the administration of justice. That is something that is
profoundly troubling to me and I think to anybody who looks at
this objectively. I am not saying that any one person should
possibly be disbarred, but I am saying that the D.C. bar ought
to look at this away from the old boys' and girls' network in
the Justice Department, and impose what discipline that is
warranted on whomever was responsible for what happened in this
trial.
This is not the first time the Public Integrity Section has
gone overboard. We had the case a couple of decades ago of
former Congressman Joe McDade of Pennsylvania who basically
spent his life savings and then some to get an acquittal
verdict from a jury for essentially doing casework for
constituents.
So I think that what has to happen here is the message has
to get out that any prosecutor who does something like this,
their career and their bar license may be on the line for doing
something that is outrageous and egregious. I am not a bar
commissioner. I think that they ought to look at the evidence
on this. But they ought to look at it.
So with that, without objection, the Subcommittee is
adjourned.
[Whereupon, at 12:12 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Addendum to the Prepared Statement of Kenneth L. Wainstein, Partner,
Cadwalader, Wickersham & Taft LLP
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E N C L O S U R E:
AUSA Bottini's Submission to the Special Prosecutor
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EXHIBIT B
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EXHIBIT H
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Prepared Statement of Sean Bennett, Kalamazoo, Michigan
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