Observations on Mary Beth Kepner and the Justice Department's Impending Report

I was starting to get hits from people googling "Mary Beth Kepner" so I checked to see what was up.

AP Reporter Peter Yost wrote yesterday:

A draft Justice Department report has found that two federal prosecutors and an FBI agent engaged in misconduct in the corruption trial of Sen. Ted Stevens, a lawyer familiar with the matter said Tuesday.

The findings emerged from an investigation by the department's Office of Professional Responsibility looking into the failure by prosecutors to turn over evidence favorable to defense lawyers in Stevens' corruption trial. The Alaska Republican died in a plane crash in August.

The lawyer said the draft report makes misconduct findings against prosecutors Joseph Bottini and James Goeke and FBI agent Mary Beth Kepner.

I don't have any special knowledge of the investigation or the findings.  But I did sit in most of the political corruption trial sessions in Anchorage where I watched Bottini, Goeke, and Kepner.  I've had Kepner talk with one of my classes.  I've read about undercover witness Frank Prewitt's book on the investigation - Last Bridge to Nowhere - and I've read and analyzed FBI agent Chad Joy's complaint against his boss (Mary Beth Kepner) carefully and posted about much of this.

All I can say is that when the report is final, there will probably be some press releases, some newspaper articles, and people will cluck their tongues about corrupt government officials, and take another sip of coffee, and skip to the celebrity de jour divorce/drug arrest/car accident story.

I would just say there is more to this story.  It's clear that in trial in DC evidence was not given to the defense that should have been given.  This is not a minor incident to brush under the rug.   It's not clear it would have changed the outcome of the trial, though it may well have.  It's also clear in my mind that prosecutors have a lot of power to 'persuade' cooperation and this power can easily be abused.  It's also clear that white collar crimes offer serious challenges to law enforcement and without informants it's pretty difficult to get needed evidence.  But when the public reads the news, their corrupt official meme seems to win out over their tendency to support the law enforcement guys in The Wire or CSI.

My incentive in this particular case is that I know more about this than most cases and I have unanswered questions.  There may be perfectly valid answers to all my questions, but I think I have an obligation to ask them in the hopes that those valid answers are revealed.  And my focus is on Mary Beth Kepner, because, of the people involved, she is the one I had most contact with. 

Here are some of the unanswered questions in my mind:

1.   What's the story behind the Bush Administration allowing its Justice Department to investigate and prosecute the senior Republican US Senator?  Yes, the Justice Department should impartially go after anyone suspected of a violation, but there are so many possible cases, they have to prioritize.  It would seem to require a very serious offense to go after such an important member of the President's own political party.  Or some serious conflict between the President and the Senator.  It's particularly strange considering that the Bush Justice Department, under Bush friend Alberto Gonzales  was firing Republican Appointed US Attorneys for not prosecuting Democrats on what many have said were politically motivated charges and hiring based on political affiliation.

I've raised these and related questions in a post which notes things that don't make sense to me and some speculation of possible explanations.  Note, these all need further investigation to document.  I called that one Checkered Swan at the Stevens Trial?

2.   Why did Chad Joy go public with his internal complaint, which was more a personal grievance because he felt he was harmed than a whistle-blower complaint (he never talked about how the public or the targets were harmed, only how he personally was harmed.) I've written about this at length.

• What Does the FBI Internal Complaint Tell Us? - detailed analysis, almost line by line, of Chad Joy's complaint.
  
  
• Code of Silence or Mob Silence? - pursued the question of why a new FBI agent would complain about subjective administrative discretion issues of his 17 year veteran superior, when in most criminal justice areas there's a strict code of silence that protects colleagues who steal, torture, and even murder.

3.  What's the real story of Mary Beth Kepner?  Is she an ace investigator who's been framed?  An evil temptress whose charms have seduced normally savvy witnesses and this blogger?  Or a good investigator who worked near the borders of what's appropriate to find ways to get the needed evidence on corrupt officials? 

Kepner doesn't not fit one's image of an FBI agent.  She's a warm, young (everyone is young these days), bright woman with a disarming smile and a sly sense of humor.  She has an undergraduate degree in engineering and set up this investigation which netted three high profile prosecutions plus other plea bargaining agreements in Alaska and convicted the senior Republican US Senator before it all came crashing down because of serious mishandling of evidence in the DC trial. 

She has convinced a couple of men who had highly successful careers, in part, by being able to read people - Veco President Bill Allen and former Commissioner of Corrections and then private prison lobbyist Frank Prewitt.  So, if I was hoodwinked by Kepner, I was in the company of people with far greater experience with deceptive people than I. 

• Let's Get Real About Mary Beth Kepner - This post was in response to charges that she was having an affair with Bill Allen.  I acknowledge that people's sex lives are a constant surprise and that I could be totally wrong, but the notion that Kepner would be having an affair with Allen seems to be stretching credibility to its limits.  In this post I explain why.
  
• Frank Prewitt's Last Bridge to Nowhere - I watched Prewitt testify in court and read his book, which I reviewed at length.  This post reviews his book, in which he trashes most people involved with the exception of Mary Beth Kepner.

4.  What are the current internal politics in the Justice Department as this report comes out with the power to blame and exonerate?

We want to believe that investigations are totally objective and the guilty parties get their due - no more, no less.  But we also know that people have relationships, biases, loyalties and other factors that may erode that objectivity.  Apparently Attorney General Eric Holder and Brenda Morris, the lead prosecutor in the case, are good friends.  From an April 2009 Huffington Post report on a Katie Couric interview with Eric Holder:

KATIE COURIC: You're reportedly close to the lead prosecutor, Brenda Morris, who's under investigation for failing, among other things, to disclose crucial information to defense lawyers in this case. Another target of the investigation is, apparently, William Welch, who's head of the office, ironically, of public integrity. Will you fire either one of them? Will they stay on during the course of these investigations?
ERIC HOLDER: Unless there's some basis for me to decide if they have something wrong-- they'll remain in place.

If he weren't close, he would have denied the characterization.

Morris

 recently surfaced in a high-profile public corruption investigation involving Alabama lawmakers and gambling legislation.
The cases are the first public indication that the prosecutors have continued to handle sensitive matters for the department since Stevens’ conviction on false statement charges was thrown out roughly one year ago.

So, the three people who will end up taking the fall are all Alaska based.  Joseph Bottini has a reputation as a hard but fair prosecutor.  The younger James Goeke I don't know much about except seeing him in court and a brief exchange in the federal building cafeteria.  And Mary Beth Kepner.  It's clear that there were conflicts between the Alaska prosecutors who had developed the case and knew all the details and the DC team members who joined late in the case to lead the prosecution when the investigation moved to DC for the Stevens case. 

The only Washington based member of the team who might have been implicated was the young and brainy prosecutor Nicolas Marsh who committed suicide in late September and who reportedly told friends that he was going to be the scapegoat in the report. (I suspect this man had never seriously failed in his life before but that's a guess and needs more research.)

It's easy for someone like me to take the facts that are available and jump to conclusions about what happened.  Clearly the investigators will have had access to a lot more information than I have.  I'm just reporting what I do know in terms of background information that raises questions in my mind.  I'll be looking at the report to see which of my questions are addressed.  I suspect the report will be narrowly focused.  We'll see.  

As I'm about to post this, I see that Cliff Groh's Alaska Political Corruption blog covers the AP report and an NPR report on the investigations this afternoon.

[UPDATE:  March 15, 2012 - The report is now out.  Edward Sullivan one of the DC based prosecutors who worked on the Alaska cases and was not mentioned in the AP Report this post originally began with, is also mentioned and appealed the release of the report.]