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Monday, March 19, 2012

The Scheulke Report on the Stevens Prosecution, and Some Thoughts the Adversarial Process, and Prosecutorial Restraint

On Thursday, the full report of Henry Schuelke, the attorney appointed by Judge Emmett Sullivan to investigate possible criminal contempt committed by DOJ prosecutors in the Ted Stevens prosecution, was released and posted on the docket.  You can see the whole thing here (http://www.courthousenews.com/2012/03/16/stevens.pdf).  It’s an incredible document that should make it onto Professional Responsibility and Advanced Crim Pro courses as soon as possible.  I have begun my Crim Pro classes the last two years with Jeffrey Toobin’s haunting New Yorker profile of Nick Marsh, a junior member of the prosecution team who hung himself after the misconduct was exposed.   I want the students to remember it as they go out and start taking on the responsibilities of practice.  For me, the report underscores two simple reforms that many law-enforcement agencies and prosecutors’ offices have adopted, but not, unfortunately, the ones involved here.  They are (1) recording of all witness interviews; (2) full-file discovery.   Below the fold there is much more about the case, the report, and steps we can take to avoid this sort of thing in the future.

For those who don’t know the story, the government convicted Ted Stevens in October, 2008 on charges of failing to report gifts from Bill Allen, an Alaska developer, specifically free or under-billed renovation work on Stevens’ house in Girdwood, Alaska.  After the conviction, one of the FBI agents on the case disclosed that the prosecutors had withheld Brady information from the defense.  The defense had a note from Stevens to Allen, saying “You owe me a bill.”  That’d be a pretty good defense, obviously.  The defense turned the note over to the government before trial.  At trial, Allen was the main government witness, and he testified that the note was just “cover your ass.”  He testified that he had a conversation with Bob Persons, a Stevens friend, who told him not to send a bill, that Stevens just wrote the note to cover his ass, but had no intention of actually paying for the work. 

This testimony “turned the tables” on the defense, which had highlighted the note in opening statements; all of a sudden it became Exhibit #1 for the government.   Problem was, after receiving the note from the defense, the government—two prosecutors and two FBI agents—had interviewed Allen about the note, and specifically asked him whether he had ever spoken to anyone about sending in a bill.  Allen said he had had no such conversations as far as he could recall.  Thus, the government had in hand a pre-trial statement from its primary witness that was directly contradictory to the most damaging statement in his testimony at trial.  And they didn’t turn it over. 

(There were some others, notably the fact that Allen had been employing a 15-year-old prostitute, and had allegedly suborned perjury by persuading her to testify in a sex-trafficking case that he had never had sex with her (Report at 10)—but for the moment I’ll focus just on the interview about the note.)

Why didn’t they turn it over? Here are the reasons given by the prosecutors themselves, as summarized by Schuelke:

- unawareness of the existence of the Brady/Giglio information;

- denial that some information was exculpatory;

- forgetfulness;

- Agent Kepner’s failure to write an FBI 302 of Mr. Allen’s interview on April 15, 2008;

- failure to review their notes of that interview;

- failure to scrutinize important source documents;

- a rushed and unsupervised Brady/Giglio review;

- delegation of the Brady/Giglio review to FBI agents and to other

prosecutors unfamiliar with the case;

- the compressed trial schedule: 52 days between arraignment (July 31) and the start of jury selection (Sept. 22);

- reliance on the judgment of others;

- failure to supervise;

- micro management of the trial by DOJ’s “front office”; and

- inexperience and lack of Brady/Giglio training


This is a perfect illustration of how very simple, structural reforms in criminal investigation can prevent grave miscarriages of justice—and further the core truth-disclosing mission of the courts. 

First, there is no excuse, in my mind, for the FBI’s refusal to record witness interviews.  The FBI is one of the last holdout agencies in this regard, and I have never gotten a satisfactory answer as to why.  Here’s one that an agent once told me (I assume he had heard this at some point in a training lecture):  “When an FBI agent raises his hand and swears that something happened, that should be good enough for any juror to believe that it happened.”   Yeah.  As Jake said to Brett, “Isn’t it pretty to think so?”    

The failure to record interviews is just sloppy investigating.  In this case, there wasn’t even a 302 (an FBI field report) written.  That meant the interview had no paper existence in the file; it existed only in the memories of the attorneys and agents, and in the notes apparently taken later by one of the prosecutors.  Because it did not exist in a labeled document or disc in the file, it would have been much less likely to be discovered during a file review for Brady/Giglio/Jencks material.   

And it’s worse: the government decided to get tightfisted with discovery and not do full-file discovery (as many US Attorney’s offices and DA’s offices do).  So that meant that the government now had an obligation to go through all its evidence and identify everything that might reasonably be of value to the defense—whether negating the charge or impeaching a witness.   And then two more problems arose: a supervisor who had not been close to the investigation decided to poach it for herself before trial; and much of the Brady review was farmed out to attorneys who had not been involved in the investigation—and to the agents themselves, one of who told Schuelke that she didn’t even know what she was supposed to be looking for:

“Agent Kepner testified that she would not have recognized the significance of Mr. Allen’s prior inconsistent statement under Brady had she remembered it.  She testified that she did not “specifically” know that Giglio information included prior inconsistent statements by a witness and that “when I was reviewing the materials for Brady, I wasn’t looking for that.” [Further],  during her review for Brady information in Stevens, she did not look for inconsistencies between a witness’s grand jury testimony and a witness’s statements reported in 302s.”

(Report at 426.)

The supervisor—the principal deputy chief of the public integrity section—who had inserted herself as lead prosecutor, told Schuelke that she had essentially no role, and apparently little interest, in doing the Brady review.  Her testimony in this regard is kind of shocking: recall that this is a *very* senior DOJ attorney involved in one of the highest-profile cases in decades:

Q: Did you play any role in managing decisions about what was to be produced to the defense?

A No.

Q Did you play any role in reviewing -- I should say supervising or setting policies for the review of evidence for possible Brady or Giglio material?

A No. There -- there had already been, I know, a big Brady review, and that had already been in motion. And because the Stevens case was the first one we thought out the box, and then there were other – there were trials where Bill Allen, he was our main concern. Bill Allen had been used as a witness. I really took it as a foregone conclusion that a lot of that had been done, a lot of the work had been done and these guys knew the case like the back of their hand.

Q Yeah, but the record indicates that Brady disclosures were made as late as the 25th of August and the 9th of September of 2008 by means of these so-called Brady letters.

A Right.

Q Did you play a supervisory role in the composition of those letters, first?

A Composition, no.

Q Did you play a role in supervising efforts to identify the information that ought to be disclosed in those letters?

A No.

Q Did you have any idea who was doing what in that regard?

A Yes. I mean, my understanding is that Ed Sullivan was working doing the yeoman's work of getting a lot of the stuff initially, the Brady review accomplished initially. We had attorneys in the section that were reviewing grand jury transcripts outside of the team just because it was too much for the team to do. Everybody was stretched pretty thin –

Q Did you ever ask whether they were reviewing -- that is, the trial team were reviewing their own handwritten notes of witness interviews for possible Brady?

A No, and to be quite honest, until all of this happened, that's something I would have never asked another trial attorney or a junior trial attorney, nothing. I mean, unless something would trigger that I was aware that there was some kind of meeting or interview that took place where something may have happened that someone may recollect something that someone else didn't recollect. So, no, that would never even cross my mind.

(Report at 75).

Some of the FBI agents gave similar explanations to Schuelke:

Q: [The prosecutor’s notes say:] ‘The agent also just told me he doesn't remember asking Bambi if Bill asked her to lie, and he doesn't think he would have asked that question, because the point of the inquiry was whether she believed she made a false statement’ and she didn't want to talk about Allen.  Do you believe that you may have said that to him on or about September 8? 

A: I don't believe I would have said to Mr. Goeke that I didn't remember asking Bambi if Bill asked her to lie. I don't recall making that statement. . . . My point of going down there, and maybe that's the confusion here, my point of going down there was to ask her -- to find out who put her up to it, so to speak. Who asked her to do it, who asked her to sign the affidavit. Whether that was Bill Allen or somebody else, I don't know.  True, I specifically did not ask in my -- it does not appear that I asked in the interview her specifically did Bill Allen ask you to lie. That's true. I don't think I came -- that I specifically asked her that.

Q As opposed to asking her did somebody ask you, and she said yeah, Allen?

A Right.

(Report at 305.)

So again, we have an interview that would be absolutely crucial to the defense (the main government witness asked the prostitute to lie under oath), and the agent didn’t record it, so we have no definitive record of what he asked her and what she said.  The government didn’t turn over anything about the interview because, the prosecutors told Schuelke, whoever was doing the Brady review didn’t realize it might be exculpatory.  Of course, if there had been a recording and transcript of the interview, it would have been easy. She either said “Bill asked me to lie,” or she didn’t. 

I want to end here; I’ll do another post on this, because I want to make a clever and topical tie in with Mike Daisey and This American Life, but the moral ought to be clear—and we ought to be sending our students out into the cops and robbers world with this lesson: (1) all law-enforcement interviews with witnesses should be recorded; (2) all prosecution offices should adopt full-file disclosure policies.  

(Seriously: if you want to get an order of protection for something that needs to be kept secret, go to the judge and get it.  But otherwise, turn over the file.  All of it.  If you can’t win your case with full-file discovery, then you’re in the wrong line of work.  That is, if the government couldn’t convict Stevens with Allen being impeached with the April interview and with the Bambi affidavit, then they should either have dug up some better evidence or dropped the case.   By way of a much-less-high-profile illustration, the case before mine in the 9th Circuit two weeks ago involved a similar scenario: two very, very guilty bank robbers (caught in the getaway car after flinging the heist money out the window and crashing) whose convictions are likely to be reversed because of errors by both the prosecution and the judge that seemed totally unnecessary—limiting cross, and most problematically, acquiescing in the court’s totally erroneous instruction that “the government’s investigation is not on trial here.”  (That latter error may well be structural, so there’d be no harmless-error claim.)  My thought, watching, was that it was so completely unnecessary—let the defense cross the cooperator and bring out the benefit he’s getting; correct the judge yourself if you have to—say to the jury, “Yes, our investigation is on trial here: we did a thorough investigation and caught the right guys.”    Why fight tooth and claw for an advantage you’re not entitled to, that you don’t need to win, and that will just give the appellate court an issue to reverse on?)

(Believe me, I’m all about chest-thumping and macho displays and all that.  But it’s a much better ego boost to win in a full-file discovery case.  And you’re better off on appeal; and there’s no Scheulke investigation; there’s no bar discipline; there’s no OPR investigation.  And the public regains a little of its trust in the integrity of the justice system.  I don’t see a downside.)


Posted by Caleb Mason on March 19, 2012 at 08:02 PM | Permalink


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There is a very simple rule. If you don't want to turn it over, it's Brady.

Posted by: jt | Mar 21, 2012 3:49:32 PM

And just to be more blunt about my last point: exculpatory stuff that is said in interviews doesn't always get written down in 302s, or even in rough notes. This may sometimes be intentional badness on the part of the FBI. It may sometimes be unintentional badness - in the sense that the FBI just doesn't find the exculpatory stuff noteworthy enough to write down. And it may sometimes be not-badness-at-the-time at all, if the exculpatory nature of what is said would not be apparent until later (for instance, if the witness contradicts himself on a later occasion). Recording interviews would make sure that all such exculpatory stuff is preserved.

Posted by: Sam | Mar 21, 2012 11:50:45 AM

To Mr. Rosenthal -

"The reason we don't have open file discovery in criminal cases is that criminal defendants tend to be not-very-nice people." Not quite sure who "we" is supposed to be in this sentence, as some offices do have open file discovery. And the "defendants are bad guys who will intimidate the witnesses" theory doesn't explain cases like US v Stevens - where (according to the report) people near the top levels of DOJ instructed PIN to play discovery "close to the vest" in what was (pretty obviously) simply a desire to make it harder for the defense to defend the case.

And re taping interviews, " if prosecutors negligently fail to turn over exculpatory notes or 302s, why should we expect that they are any more likely to turn over tapes?" - first, the benefit of taping is that it creates a more reliable record than 302s, which are (see Stevens and many other experiences) not reliable. (Indeed, if you have ever heard a prosecutor object to a 302 being used to refresh the interviewed person's recollection, you will understand that the DOJ embraces the unreliability of 302s when it serves DOJ's purposes to do so.) Recordings would provide more useful and reliable information for the defense - which is pretty clear why recording is not done. If prosecutors would wrongly withhold exculpatory tapes, well that's not much of a policy argument against taping.

Posted by: Sam | Mar 21, 2012 11:42:45 AM

In response to John Steele -- The reason we don't have open file discovery in criminal cases is that criminal defendants tend to be not-very-nice people. It is hard enough to convince witnesses to testify for the prosecution -- if their identities are to be disclosed well in advance of trial while they still live among the defendant's friends and families, that task might become impossible. Witnesses are not likely to take much comfort in the notion that discovery might be left to the discretion of the trial judge.

As for Caleb Nelson's advocacy of recording interviews, aside from the fact that this may have a chilling effect on potential prosecution witnesses, if prosecutors negligently fail to turn over exculpatory notes or 302s, why should we expect that they are any more likely to turn over tapes?

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Mar 20, 2012 4:51:59 PM

Re "question": (1) Look at the post again; the robbery case was not my case. It was one that I heard argued while I was waiting at the Ninth Circuit earlier this month. All I know about it is what the lawyers and judges said. And (2) yes, I was 100% full-file discovery in every case. If I got it, the defense got it. There's nothing radical about that; as I said, many prosecutors do it that way.

Posted by: Caleb Mason | Mar 20, 2012 11:43:17 AM

Caleb, you were a federal prosecutor. What were your views on discovery then? Did you allow the defendant to see your file?

Also, why in god's name are you saying publicly that two of your clients are "very, very, guilty"? Do you believe that to be ethical?

Posted by: question | Mar 20, 2012 10:42:18 AM

Part of the problem is that DOJ has never done anything more than pay lip service to professional responsibility, if even that. The DOJ as a whole is far more interested in rationalizing its lawyers' misconduct than in rectifying it. OPR has never done more than recommend toothless, slap on the wrist sanctions for misconduct and when it has dared to go that far, some senior Assistant AG has found some reason to reject its recommendations. If an AUSA is criticized in a court opinion, the local U.S. Attorney's Office will almost always get the lawyer's name excised from the opinion (the recent 9th Circuit case to the contrary is a stunning rarity). The AUSAs in the Stevens case will get nothing more than a letter of reprimand placed in their personnel files when they should be fired. Lead trial lawyer Brenda Morris has largely been exonerated as a result of her ignorance and the two even more senior DOJ lawyers who foisted her on the trial team have long since left DOJ for lucrative law firm partnerships.

Posted by: Doug Richmond | Mar 20, 2012 9:55:12 AM

There's so much to agree with in your post, but just to focus on one issue, how is it possible that we don't have 100% full file discovery via ethics rules, case law, internal policies, and statute?

Posted by: John Steele | Mar 19, 2012 8:38:21 PM

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