This article has been updated with a response from Rita Glavin.
Some of the harshest criticism surrounding a newly disclosed report on the botched Sen. Ted Stevens prosecution is directed at two Justice Department officials who weren’t under formal scrutiny.
Then-acting Assistant Attorney General Matthew Friedrich, who supervised the Criminal Division during the Stevens indictment and trial; and his then-deputy Rita Glavin, were identified in the report and in rebuttals by prosecutors involved in the case as central figures in the screw-ups that led to dismissal of all charges against the Alaska senator in 2009 and the setting aside of his 2008 conviction.
An unflattering portrait of the two Criminal Division leaders emerged in the report by independent investigator Henry Schuelke III and official accounts from several prosecutors involved in the matter, including William Welch II, who headed the Public Integrity Section during the Stevens trial.
The Schuelke report ultimately pins blame on lower-level prosecutors for failures to turn over evidence to the defense that led to the collapse of the case in 2009. The prosecutors, in turn, point fingers at their supervisors, who they say were calling the shots.
“The mistakes flowed directly from the very explicit decisions and explicit directions that the supervisors gave,” Robert Luskin, attorney for the late prosecutor Nicholas A. Marsh, wrote in a letter to Schuelke that was released with the report. “For reasons we cannot fathom, you appear to have accepted at face value the self-serving and exculpatory statements from Marsh’s supervisors.”
Schuelke made no findings about Marsh, who committed suicide in 2010. But he found that two Alaska prosecutors committed willful misconduct. Ken Wainstein, attorney for Alaska Assistant U.S. Attorney Joseph Bottini, said “a good man’s human errors have been miscast as intentional criminal misconduct” and that the larger dysfunction surrounding the prosecution was to blame.
Attorneys for James A. Goeke, who is now a federal prosecutor in Washington state, wrote that he “should not be made a scapegoat for Brady failures that were, in truth, caused by the prosecutions team’s overall lack of leadership, planning, unwise delegation of responsibilities and disorganization.”
Yet, even prosecutors who were cleared appeared traumatized by the damage to their professional reputations and offered versions of events that trace the genesis of the debacle to Friedrich and Glavin.
On the eve of the July 29, 2008 indictment of the Alaska senator, Criminal Division chief Friedrich pressed Welch’s reluctant deputy, Brenda Morris, into taking over leadership of the prosecution team, for reasons that weren’t explained.
“I did not agree with the decision to add Ms. Morris to the prosecution team,” Welch said in a deposition. “I thought that the addition would have a very detrimental and explosive impact on the team, and in fact that’s exactly what happened.”
Morris was thrown into a complicated case accusing Stevens of accepting undisclosed gifts from a wealthy Alaska supporter. Her elevation displaced prosecutors who had been working the probe for years, creating resentment. Friedrich and Glavin then proceeded to “micromanage” the prosecution, Welch and others said.
Thus, the groundwork for disaster was laid.
Glavin said she would not have a comment until she’s read the report. Friedrich didn’t respond to requests for comment. A friend of Friedrich, speaking on background, questioned the fairness of a process that did not allow Friedrich to review the report before its public release today.
‘No joy in Mudville’
For years before the Stevens indictment, Public Integrity Section lawyers Marsh and Edward P. Sullivan had been directing a public corruption investigation in Alaska dubbed Polar Pen. The Washington, D.C.-based lawyers were assisted by Alaska Assistant U.S. Attorneys Bottini and Goeke.
By 2005 the probe had implicated the state’s powerful senior senator, Ted Stevens, who had chaired the Senate Appropriations Committee since 1997 in times when Republicans controlled the Senate. With Stevens implicated, the Alaska U.S. Attorney’s office recused itself, leaving only Bottini and Goeke available to work the case. The AUSAs reported directly to the Public Integrity Section in Washingotn.
Prosecutors believed Stevens had illegally accepted gifts from an Alaska oil services company called VECO Corporation and its CEO, Bill Allen, in the form of $250,000 in renovations for a home Stevens owned in Girdwood, Alaska. Allen was the prosecution’s star witness.
Throughout the spring of 2008, the Alaska U.S. Attorneys had little inkling of whether officials at Justice Department headquarters in Washington would seek to indict Stevens, “despite repeatedly asking PIN attorneys Ed Sullivan and Nick Marsh whether the case was moving forward,” according to an account by Bottini’s attorney. The Alaska AUSAs described themselves as mostly in the dark about decisions made in Washington.
But even the PIN attorneys were astonished when, on the eve of the Stevens indictment, the entire prosecution team was reshuffled at Friedrich’s insistence.
Marsh would no longer be “first chair” of the trial team. Morris, the principal deputy chief of DOJ’s Public Integrity Section, would have that honor. Marsh remained on the team, but in a third-ranking position. Ed Sullivan, who had been the “third chair” of the prosecution team, was relegated along with Alaska AUSA Goeke to a back-office document review role. Sullivan had been told he wasn’t experienced enough for the high-profile job and, in fact, had the impression he’d been removed from the team entirely. Bottini from Alaska remained in his original place on the team in the second-chair role.
“There is no joy in Mudville right now,” Marsh lamented in an email to Sullivan.
Holding evidence ‘close to the vest’
Friedrich and Glavin began asserting their authority in other, more petty ways, by account of their subordinates. They expressed displeasure that Sullivan had sat at the government counsel’s table during Stevens’s arraignment and began “dictating whether or not those who couldn’t sit at counsel table had to sit in the gallery versus the front row” in court, Welch testified.
Meanwhile, a personal friendship between Glavin and Morris was causing other problems. Morris often dealt directly with the “front office” rather than go through Welch, her direct supervisor. Welch said this arrangement undermined his ability to supervise the case and often left him finding out about key decisions after the fact.
These subplots were occurring within a major pressure cooker. Stevens had asserted his right to a speedy trial, saying he wanted to clear his name before the upcoming November 2008 congressional elections. He had hired a high-dollar team from elite law firm Williams & Connolly to defend him, including Brendan Sullivan, one of the best known defense lawyers in Washington. The government, with fewer staff resources and mountains of documents to sift through for pre-trial discovery, was working around the clock.
“What we needed,” Bottini testified for the report, “was someone cut loose specifically to deal with a project manager type role for this thing, and we didn’t have that.”
Morris, as the prosecution lead, might have tackled the management problems. But she had tried to “make herself as little as possible” to avoid exacerbating the resentment of her displaced colleagues, the report says. That left people like Sullivan adrift. Assigned to document preparation, he felt he didn’t have adequate training or supervision in its procedures. ”He was told to learn by ‘riding the coattails’ of others,” said the response from his attorney.
In this chaotic atmosphere, Glavin – the deputy overseeing the Criminal Division — advocated in an Aug. 1, 2008 meeting for a narrow view of the government’s obligations to turn over so-called Jencks material supporting witness testimony to the defense, according to the official response from Welch. “We have to play our cards close to the vest on this one,” Glavin reportedly said. She endorsed Morris’s view that the government could summarize the underlying documents rather than provide Stevens’ counsel with the original source documents.
Welch said he was “stunned” by Morris’s view of its obligations, which she did not share with him before the meeting.
The decision to view discovery obligations narrowly would be a fatal error, prosecutors under scrutiny concluded. But the ramifications of that decision weren’t immediately clear.
The former child prostitute’s statement
Goeke, one of the Alaska prosecutors, knew from an earlier case he’d been involved in that Bill Allen had been under local investigation for having sex with a minor. The minor was former child prostitute named Bambi Tyree. Tyree in July 2004 had told other investigators that Allen had directed her to lie about their relationship under oath.
Goeke says that in 2007 he and Bottini repeatedly brought the issue to the attention of Marsh in connection with another Polar Pen prosecution in Alaska. Marsh told them he took the issue to the Justice Department’s Professional Responsibility Advisory Office and was told prosecutors didn’t have to disclose the information, according to a response from Goeke’s attorneys.
But Goeke’s lawyers said he continued to press for disclosure of Allen’s role in the prostitute’s false statement as the Stevens case prepared for trial, despite having been “sternly rebuked” in 2007 to defer to Public Integrity and drop the matter.
On August 14, Goeke emailed the entire prosecution team to again urge disclosure. “Mr. Goeke was outvoted,” his lawyers wrote.
Still, Welch and Sullivan decided to obtain the Anchorage Police Department file on the sex investigation. But on Sept. 5, Friedrich and Glavin overruled Welch, according to Welch’s testimony.
“I had a conversation with Marsh and Sullivan in which we have a discussion about obtaining the APD file — let’s get ahead of this issue, let’s get the file,” Welch testified. “Somehow Glavin and Friedrich find out about it and they sort of put a halt to it, they want more information, and that produces an e-mail on September 4 where they want to know do we believe Williams & Connolly has gotten the file yet?”
Welch said Glavin and Friedrich’s view was if the government didn’t posses the file, it wouldn’t be obligated to turn it over to the defense, thus possibly keeping Stevens away from some unflattering material against their star witness.
Glavin told Schuelke she did not make such a statement.
The Schuelke report concluded that Goeke, Bottini and Marsh deliberately withheld the information about Allen pressuring the prostitute to change her sworn statement from Stevens defense. Such information could have been used to impeach Allen’s testimony at trial.
Sullivan’s attorney concluded that had the team been allowed to obtain the Alaska police file, the issue of the prostitute’s statement would have been addressed in a timely manner and subsequent misstatements in summaries would have been avoided.
Allen’s explosive testimony
As the trial date drew closer, Ed Sullivan was growing “increasingly frustrated with the lack of available resources, the inadequate staffing, and the void in leadership” his attorney, Brian Heberlig, wrote. Sullivan called Welch at home at least twice to discuss the problems and went “even further out of the chain of command” by seeking a private meeting with Friedrich. It isn’t clear whether Friedrich granted the meeting, but Sullivan’s attorney wrote that ultimately, his concerns about the mismanaged prosecution were ignored.
On Sept. 17 under court order, the government gave the defense a collection of redacted FBI Form 302s, which are summaries of witness interviews. The trial began with jury selection on Sept. 22, but came to a screeching halt on Oct. 2 after contentious testimony by Bill Allen.
Allen testified that although Stevens had written him notes asking for bills to cover the costs of the renovations Allen’s company was making on his home in Alaska, he considered those notes just Stevens “covering his ass,” and that Stevens had never intended to pay the full cost. The testimony directly undercut Stevens’s defense that he had in good faith intended to pay the renovation bills.
However, shortly before midnight on Oct. 1, the government disclosed to Stevens’s counsel that it had discovered notes describing a previous contradictory statement by Allen. In an April 2008 interview, it turned out Allen had said he believed the senator would have paid an invoice from his company if he had received one. The statements “would clearly impeach Allen’s trial testimony” that Stevens’ request to be billed was only a pretext, the Schuelke report said.
The disclosure threw the trial into an uproar, with the Stevens team demanding dismissal and an angry Judge Sullivan ordering the government to produce all FBI witness statements to the defense, “every last one.”
But it turned out that no formal 302 witness statement had been prepared for the April 2008 interview with Allen. Thus, the prosecution lost track of that interview. Crucial information due the defense had slipped through the pre-trial discovery process. And when the notes of it were discovered belatedly, it appeared the government had committed misconduct.
Connecting the dots
Sullivan connected Glavin’s decision to hold information “close to the vest” to the collapse of the prosecution.
“Had the front office directed the trial team to disclose FBI 302s as Jencks material instead of playing ‘close to the vest,’ … there is a strong likelihood that in cataloging the FBI 302s to produce to the defense, the government would have realized that no FBI 302 had been created” for Bill Allen’s contradictory April 2008 interview, Sullivan’s attorney wrote.
That discovery would have prompted a search for notes of the interview, which would have led to timely disclosure to the defense, his response concluded.
Likewise, ”If the front office had not overruled the decision” of Welch to obtain the Anchorage police file on the Allen sex crime investigation, Sullivan’s attorney wrote, the problematic statement of the former child prostitute “likely would have received greater attention from Mr. Welch, Ms. Morris and the trial team members and the entire … disclosure issue would have been avoided.”
UPDATE, March 18: The Schuelke report did not quote Rita Glavin’s interview with investigators, in which she says she denied telling prosecutors to play “close to the vest” with discovery. Following publication of this article, Glavin issued the following statement: “As I told Mr. Schuelke when I was interviewed, I did not tell anyone on the Stevens team anything about ‘playing our cards close to the vest’ with respect to the Government’s disclosure obligations. I never said such a thing, no-one suggested such a thing in my presence, and if that had been suggested I would have objected.”
The Schuelke report notes that Matthew Friedrich denied hearing Glavin make the “close to the vest” comment or anything to that effect. The report says Brenda Morris testified she was not told to play discovery “close to the vest.” The report also notes that the “front office” of the Criminal Division, including Friedrich and Glavin, played no role in day-to-day disclosure decisions.
Finally, the article as originally published said, citing the report, that Glavin did not remember telling prosecutors not to obtain an Anchorage Police Department file on a sex crimes investigation of Bill Allen. In fact, as the report says, Glavin told Schuelke in an interview that she did not give any order prohibiting prosecutors from obtaining the file.