Schuelke: Congress Should Consider Discovery Legislation
By Elizabeth Murphy | March 28, 2012 3:29 pm

Congress ought to consider reforming portions of the discovery requirement in federal legal proceedings so that the mistreatment the late Sen. Ted Stevens of Alaska endured will not be faced by others, a special investigator said Wednesday.

Henry F. Schuelke III, the special investigator in the botched Stevens case, testified before the Senate Judiciary Committee to answer questions about his scorching 525-page report chronicling the failures of the Justice Department prosecutors in the public corruption case.

Hank Schuelke (Getty Images)

Stevens, the longest-serving Republican in Senate history, was convicted in 2008 of concealing gifts from a wealthy Alaska oil executive, chiefly in the form of renovations to the senator’s home, which Schuelke said was more a “rustic cabin” than a chalet. He lost his Senate seat in that fall’s election and was killed in a plane crash in 2010.

Stevens’ conviction was tossed after it became clear some members of the prosecution team did not disclose exculpatory evidence to the defense at trial. In the aftermath, Sen. Lisa Murkowski (R-Alaska) introduced a bill that would put a disclosure requirement on the books, rather than relying on the current practice of deferring to the prosecutor’s discretion on what is “material,” or not.

Schuelke said Congress should consider a bill that eliminates the ‘materiality requirement’ in the discovery process, which guides prosecutors to disclose only evidence that they believe is seminal to the core of the case.  Schuelke said the Justice Department, as a matter of policy, encourages prosecutors to turn over more evidence than less.

“My question is, if the department believes that there should be no pretrial materiality standard… what is the principled reason for opposing legislation that does just that?” the special investigator said.

Several senators stated they wanted to ensure that violations evident in the Stevens case do not happen to everyday defendants.

“The thing that disturbs me so greatly is not that this prosecution involved a United States senator, it is that I doubt we would be having this hearing if it involved a citizen who was not a United States senator,” Sen. John Cornyn (R-Texas), who previously served as the Texas Attorney General, said.

Sen. Sheldon Whitehouse (D-R.I.) urged the Justice Department to take a serious look at proposed discovery legislation “not just to push back because it is new or different, but to see what systemically can be done about this.”

(The Justice Department did push back, issuing a statement for the record discouraging Congress from taking up such legislation and saying it would “radically alter” the workings of the justice system. “Such a legislative proposal would upset the careful balance of interests at stake in criminal cases, cause significant harm to victims, witnesses, and law enforcement efforts and generate substantial and unnecessary litigation that would divert scarce judicial and prosecutorial resources,” the DOJ said. The department said tampering with discovery rules might impede protections against witness retaliation and larger national security concerns.)

Committee Chairman Patrick Leahy (D-Vt.) said: “I want to make sure this does not happen even if it was Ted Smith, who nobody would know.” Leahy, a former prosecutor, said he “thought the world” of Stevens and knew him as a man who kept his word.

In his report, Schuelke found that the then-Alaska Assistant U.S. Attorneys on the prosecution team, Joseph Bottini and James Goeke, willfully concealed exculpatory evidence from the defense during Stevens’ 2008 trial. Public Integrity Section prosecutors William Welch, Brenda Morris, Nicholas Marsh and Edward Sullivan were also scrutinized. The report states that Welch, Morris and Sullivan were not culpable for willfully concealing evidence. No determination was made about Marsh, who committed suicide in 2010.

Bottini and Goeke have called the report’s findings flawed, saying they attempted numerous times to push their superiors at Main Justice to discuss disclosing the evidence that became the issue later on. In rebuttals to the report, the line prosecutors also pointed to mismanagement as a major factor in the botched prosecution.

Ken Wainstein, Bottini’s attorney, said he was encouraged by the line of questioning in Wednesday’s hearing. He said the senators didn’t take the report’s findings at face value.

“Based on the tenor of question’s today, I’m confident that members [of Congress] will be receptive to hearing our side of the story,” he said in an interview with Main Justice.

Matthew Menchel, Goeke’s lawyer, said he, too, was encouraged by the issues brought to the fore. “If there is continued congressional inquiry, it ought to be on the policies and procedures of the Department of Justice,” he said.

Leahy and ranking Republican member Sen. Charles Grassley of Iowa pressed Schuelke on the role the Public Integrity Section prosecutors played in the case. Leahy also asked about the role of Main Justice’s front office — specifically, the then-Acting Assistant Attorney General for the Criminal Division Matthew Friedrich –  in the outcome of the case, which has become a major embarrassment for the DOJ.

Schuelke said Friedrich took an understandably increased interest in the case, considering its high profile.  This close management, Schuelke said, may have ultimately spelled disaster for the prosecution team. Deputy section leader Morris was placed at the head of the team, over section chief Welch. Morris told Schuelke this contributed to major morale problems and caused her to make herself “as little as possible” during the preparations of the case. She left the discovery process up to the other prosecutors on the team.

“[The leadership] bears some responsibility for failing its supervisory responsibility to know all of the operative facts before they pass on a decision,” Schuelke said.

Schuelke said, though, the leadership’s mismanagement did not directly contribute to the three instances in which he found willful concealment of evidence.

Grassley, who went on the offensive against the Justice Department, said it seems as if no one has been held accountable in the department. He pointed to the management issues with Morris and Welch, saying, “Shouldn’t the buck stop with the boss at the top?”

“[Morris] seemed more concerned with not ruffling feathers — shouldn’t she have risen above concerns of ruffling feathers?” Grassley asked. “If she was failing, wasn’t it the job of her supervisors [to address the issue]?”

The special investigator told the committee that his job was to determine if it was appropriate to levy criminal charges against any or all of the prosecutors. He found that two on the team withheld evidence on purpose, but the action did not rise to the threshold of criminal contempt. “We found no evidence, apart from this failure of management, that either Mr. Welch or Miss Morris willfully engaged in misconduct.”

Welch and his attorney, Mark H. Lynch, said in a statement that Welch “supervised the conduct of the prosecution only when discrete matters were brought to his attention after controversies arose.” They said in the statement that, as Schuelke wrote in his report, Welch was not found to have willfully concealed evidence.

Leahy said he plans further review when the Justice Department’s Office of Professional Responsibility’s separate report is issued.

Update: This story was updated to include a statement from William Welch.

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