Checkered Swan at the Stevens Trial?

[Monday, Feb. 23, 2oo9, 12:12 am Thai time]

Suppose you were at Potter Marsh last summer and you saw the bird above. You might say, "Hey, look, there's a swan." We don't see swans every day, but they do pass through Potter Marsh regularly and it makes sense when we see them there. But suppose you saw the next scene.


"Whoa!" you might say, "A black swan, here in Alaska? What's going on?" We know there are black swans - even if we didn't take philosophy - but in Alaska? You start scratching your head - this is unusual, but it's possible. But suppose you see the next bird.




"Hey, I know that black swans exist, but this just can't be."

When watching the Ted Stevens trial from afar, there are two situations that cause me to react as though I'm seeing a black, or even a checkered, swan - that is, things that cause me to take special notice and say, "Something isn't right."

1. Prosecution Bungling
   
   Four prosecution attorneys have been found in contempt of court by Judge Sullivan. (One was later excused since he'd just begun to work on the case.) As Cliff Groh, an Alaskan attorney who attended the trial wrote on his blog

   . . . today’s action is both a very big deal and another sign of [Judge Sullivan's] fury at the prosecutor’s conduct. As the Associated Press and the Washington Times reported, it is unusual for a judge to hold a prosecutor in contempt and very unusual to hold a federal prosecutor in contempt.

   
   This follows a series of screwups by the Prosecution regarding information withheld and for which they were scolded by the judge.
   
   OK, so attorneys can make mistakes. But hold on. In the three previous trials of Alaskan politicians held in Anchorage that have come from the same FBI investigation, the four Prosecuting attorneys were on top of every detail. They knew every fact and only occasionally had to look up the number of an exhibit even.
   
   But when the venue for the Stevens trial was set for Washington, DC, not Alaska, it came with a new lead Prosecutor, Brenda Morris, and apparently closer oversight from the Public Integrity Section (PIN) of the Justice Department, where the cases have been based. (Two of the attorneys at the Alaska trials - Nicholas Marsh and Andrew Sullivan - were from PIN and the other two were Alaska Federal Prosecutors Joseph Bottini and James Goeke.) The attorneys ruled in contempt include the new lead prosecutor Brenda Morris who is also the Deputy Director of PIN and PIN Director William Welch, but NOT the four attorneys who got the three convictions in Alaska.
   
   And then we get the announcement last week that the whole Prosecution team has been replaced - even the four attorneys who have been working these cases for several years and know all the details and were NOT ruled in contempt of court - by

   Paul O'Brien, chief of the Narcotic and Dangerous Drug Section, David Jaffe, deputy chief of the Domestic Security Section, and William Stuckwisch, senior trial attorney in the Fraud Section.

   The defendant has been convicted after years of work in developing the case. And now we have three new attorneys brought in to finish the trial in the 11th inning? Relief pitchers with a fresh arm work in baseball, but relief attorneys? Maybe they don't need to know all the details of the case, they just have to clean up the questions of why the Prosecution's mishandling shouldn't lead to a mistrial. But getting rid of all the attorneys who know about the trial?
   
   
2. FBI Agent files complaint against lead FBI agent in Alaska investigation
   
   FBI Special Agent Chad Joy filed a complaint against the lead agent in this investigation Mary Beth Kepner. I've put up several extensive posts analyzing the claims in Joy's complaints - Let's Get Real and What Does the Internal FBI Complaint Tell Us? You can see the second, less redacted version of Joy's complaint here. The Anchorage Daily News just recently published Richard Mauer and Lisa Demer's "Key Players Contest FBI Whistle-blower Allegations" confirming the suspicions I raised about Joy's complaint.
   
   The black swan here, maybe even the checkered swan, is that Joy even filed the complaint in the first place. As I've discussed in a previous post, law enforcement officers tend not to squeal on their colleagues. While I questioned the use of the term Code of Silence because it suggests some level of honor, I found plenty of evidence that law enforcement officers often cover for their colleagues even when they are committing serious crimes that compromise their mission.
   
   It's odd enough that Joy would file a complaint. What pushes this from black swan to checkered swan territory for me is the fact that none of Joy's complaints about Kepner are about clear, serious transgressions that are routinely covered up - like abusing suspects, taking bribes, or using drugs on the job. These were mostly administrative discretion judgment calls - did Kepner share too much information with undercover sources, and things like that.
   
   Why would he file a complaint about things like that? I hazarded a guess that perhaps he was excessively rule oriented and the Mauer/Demer piece does say he was brought in to the case because he was good with numbers. But it is still very bizarre for a rookie agent to file against a 17 year veteran over discretionary calls.
   

So how do we explain these black swans at Potter Marsh and possibly even a checkered swan sighting? Behavioral psychologists explain behavior by looking at what reinforces that behavior. Economists use their own term - incentives. So what are the incentives here? Who benefits from the clouds over the FBI investigation and the Prosecution team meltdown?

1. The most obvious incentive for the Defense here is to get Stevens' conviction dismissed and have a new trial, or better yet, no new trial.
   
   
2. Another incentive for Stevens is to prevent the indictment and trial of his son, Ben Stevens, who has been one of the targets of the investigation and whom many think is the next in line to be tried.
   

By creating the appearance that the FBI investigation was corrupted and that the Prosecutors have illegally and intentionally mishandled evidence and witnesses in order to get their conviction of Stevens, the Stevens Defense team could possibly pull off both those goals.

We know that Stevens is a fierce competitor. He's famous for his Incredible Hulk tie and his corresponding temper. He's been known as Senator for Life long enough now that he clearly sees any question about his actions as an unwarranted personal attack. He feels he's innocent, and presumably wants to also protect his 'innocent' son. The Huffington Post reported after the conviction

Unbowed, even defiant, Stevens accused prosecutors of blatant misconduct and said, "I will fight this unjust verdict with every ounce of energy I have."

We also know that the Bush Administration Justice Department Republicans were not a single unified group.

[T[he firing of eight Republican U.S. attorneys last Dec. 7 [2006], in an episode that some of its victims have already taken to calling the "Pearl Harbor Day Massacre

by the Republican Bush Administration was one sign.

More related to the Stevens case was the appointment of Alaska Federal Prosecutor Nelson Cohen in 2006. Normally, when an Alaska Prosecutor is appointed by the Justice Department, the Alaska delegation is consulted. But not in 2006. The FBI investigation into Alaska political corruption was about two years old already and Ben Stevens, if not Ted Stevens too, were known to be targets. Clearly, there were Republicans who were not averse to taking on the senior Republican US Senator and they had enough clout to get this appointment made behind Senator Stevens' (and Senator Murkowski's) back.

"I am just furious at the way the attorney general handled this," the aide quoted Stevens as saying.

But a former Alaska U.S. attorney, Mike Spaan, now in private practice here, said he believes Cohen has a strong background in Alaska and is a "top-notch guy."

"I am confident Nelson knows Alaska. I'm not remotely upset about it," Spaan said. From Richard Mauer's ADN article.

But battles are won and lost in a war. Is the Stevens trial one more of those battles? Is it possible that some pro-Stevens folks got into the Prosecution team and helped disrupt the previously well oiled machine that got the Alaska convictions? Did the Defense get hints of Joy's discontent and find ways to push him into the extraordinary move of filing a formal complaint over such ambiguous issues?

There are, of course, other explanations for the black swan we see. Brenda Morris, perhaps, just wasn't capable of handling the case. Perhaps she was called to head the prosecution because they thought an African-American female leading the prosecution before a mostly female and African-American jury would be a good move. Perhaps the high-powered, well paid Stevens Defense team was a more formidable foe for the Prosecution than what the Prosecutors faced in Alaska.

Perhaps Chad Joy was just compulsive about the rules and in his eyes, Kepner had crossed the line once too often, and/or working for a highly successful, female boss was just too much for him.

One of the issues here - the Prosecution bungling and Joy's complaint - might have been like seeing a black swan at Potter Marsh. Highly unusual, but possible. But both the extreme Prosecution mishandling together with the rookie FBI agent squealing on his senior partner happening on a case of this level pushes this into the checkered swan category for me. Something is fishy. Both of these together didn't just happen. This didn't just fall into the Defense's lap.

My guess is that there's more to this. Joy's complaint alone, by a rookie FBI agent against a 17 year veteran over issues of administrative discretion - is like seeing a checkered swan. I don't see this happening without people intentionally working to pull this case apart from the inside.

David Whitney, in an August 8, 1994 ADN article, quotes Stevens on how Stevens lobbied (you may need UAA id for this link) for Alaskan statehood:

"I had made a study on each member of the Senate and this goes on now into '57, '58 whether they were Rotarians or Kiwanians or Catholics or Baptists and veterans or loggers, the whole thing," Stevens said in the 1977 interview.

"And we'd assigned these Alaskans to go talk to individual members of the Senate and split them down on the basis of people that had something in common with them," he said.

"We were violating the law . . . we were lobbying from the executive branch, and there's been a statute against that for a long time," Stevens said. "We more or less, I would say, masterminded the House and Senate attack from the executive branch."

What was to stop Stevens or his supporters now from studying each member of the FBI and Prosecution team and trying to find a crack the way he did in the statehood lobbying campaign? He certainly had a bigger personal stake now than in the statehood battle. And he didn't seem very contrite over breaking the law in the interview. Perhaps Joy was one of those cracks. And perhaps there were people willing to help in the Justice Department. I have no evidence to prove any of this, except the appearance of a couple of black swans, maybe even a checkered swan, that call for some sort of explanation.

We've been reluctant to question the motives of people like Stevens for years. But we've had a couple years of events that suggest that caution was misplaced. Maybe I'm totally wrong, but it wouldn't hurt, at this point, to check it out. And I'm sure that the people on the inside, people whose case has been fouled, have a lot of ideas about what might have happened.