GCI More Important Than The Rest Of Us

ADN explains why Alaska members of congress voted to end internet privacy protection:

"The rule would have required internet service providers (ISPs) to get consent from users before collecting information from their web browsing history for any purpose, including advertising.
Other internet companies like Google and Facebook don't have to do the same; though they have more limited access to browsing history, they do use the information they gather to make money advertising to users.
Murkowski, Sullivan and Young for the most part said that their concerns about piecemeal regulations outweighed their desire to protect individuals' data.
'So we looked at this one very carefully. Where I came down on it at the end was: What this rule did was it set up basically two standards depending on what the platform was. And that made no sense," Murkowski said after voting in favor of repealing the FCC rule. "It would have created confusion.'"

Their explanation means two things to me:

1. They value fairness for corporations over fairness for US citizens
2. GCI has more clout in Alaska than the people of Alaska.  Remember - Ted Stevens died in a plane crash going to a GCI retreat on a GCI plane with GCI execs, as he had done over the years

Of course, this was also the Republican party line anyway.

Roll Call Reports On Mary Beth Kepner Discipline

Rollcall reported yesterday:

"FBI Director James Comey told a Senate subcommittee Thursday that an agent faced discipline for conduct related to the investigation of late Sen. Ted Stevens.

Comey was ready for a line of questioning from Republican Sen. Lisa Murkowski about the FBI’s conduct in the probe of her former Alaska colleague. Murkowski asked for an update from 2012 on allegations made by FBI whistleblower Special Agent Chad Joy about inappropriate conduct by a fellow agent.

“I did learn about this in the last week and get briefed in detail. The Office of Professional Responsibility (OPR) inside FBI did investigate in response and identified an agent who had engaged in improper conduct there, and the agent was severely disciplined,” Comey said. “The discipline has been imposed.”
Comey was sworn-in as FBI director last September, succeeding longtime director Robert S. Mueller. Mueller previously faced questioning at the Appropriations Subcommittee on Commerce-Justice-Science about the Stevens case from both Murkowski and then-Sen. Kay Bailey Hutchison, R-Texas."

I attended and blogged the three trials in Anchorage.  When Chad Joy's so called "Whistle-blowing" document was released, I reviewed it in great detail.  As I saw it, the charges could be broken down into two categories:

1.  How Agent Kepner ran the investigation
2.  Misconduct involving the handling of information at the trial

I found the complaints about the investigation to be about subjective issues of administrative discretion (things like how close do you get to a source and what information do you tell a source) and not about breaking any clear laws or regulations. [In fact, he never cites any laws or regulations or policies that were violated.]

I would also note that there was nothing in Joy's memo that showed concern that the behavior might result in injustice for any of the defendants.  The 'victim' of her alleged misbehavior was Chad Joy himself.  He complained she told witnesses personal information about him and there was a sense that he was worried things would go bad and he didn't want to be blamed. 

I had no way to judge the allegation regarding what happened with information at the trial, but I was struck that he provided few specifics about what he thought had been done wrong.   The only specific details he gave were about a meeting that Kepner had with their key witness in a hotel room which he used to suggest they were having an affair.  I discussed that allegation in depth in this post. 

And here's a post I wrote in November 2010 trying to understand the general context of the investigation itself.

I mention all this because the media coverage has tended to jump all over Kepner and I see this as far more nuanced.  After all, she's the agent who set up the surveillance of Bill Allen's hotel room that revealed how he was managing key legislators' votes regarding changing oil taxes.  The reporting doesn't ring true with my impressions of the agent I had a few opportunities to talk to in some depth.

I don't know what happened.  I recognize that that the FBI and prosecutors in general often have extraordinary power over most defendants and they do a lot of stuff we don't know about to intimidate suspects into cooperating.  I also know that getting information about white collar crime is extremely difficult and without insider informants almost impossible.  And whenever you use informants, lots of tricky issues arise.  And there was some mishandling of evidence.

But the Ted Stevens team had the money and brainpower to take on the FBI and the DOJ and while they lost in the trial, they did 'win' in after trial maneuvering.

Andrew Longstreth quotes Jeffrey Toobin in an The American Law article about two young Jersey attorneys beating the law firm that defended Ted Stevens.  He writes about Brendan Sullivan:

In court, however, Sullivan is often silent during pretrial proceedings. According to a story repeated in legal circles, a judge once asked Sullivan about his lack of involvement during a hearing. Sullivan pointed at the jury box and said: "I work when they work." Arguing pretrial motions is often the job of his partner, Barry Simon.

Longstreth continues:

"There are no school yard fights," says Toobin, who was the junior member on the North prosecution team, about Simon. "Every battle is nuclear warfare. Everything is prosecutorial misconduct." (Sullivan declined a request to speak for this article. Simon did not return calls.) 

Everything is prosecutorial misconduct.  That's part of the Sullivan strategy. The team is good at defending high profile defendants, for very large amounts of money, and forcing the prosecution to make errors.  That's no excuse, but it does shade the story differently than most coverage. 

It's possible that the main offense Kepner committed was to catch Republican legislators, particularly Stevens.  And to interrupt the oil companies' influence in Juneau.  The infractions Stevens committed are dismissed as minor given all the pork he brought to so many Alaskans, but Kepner's infractions are used to define her and all her accomplishments are dismissed.

Cliff Groh, who attended the Stevens trial in DC and believed that Stevens would have been convicted without the evidence that was tainted, in one post cites interviews with jurors who found Stevens not credible.  It wasn't just the recording of Stevens telling Bill Allen

"that the worst they could expect was 'a little time in jail.'” 

I think there's a much bigger story behind all this.  With the prosecutions behind us and Kepner and others in the prosecution team disciplined, the oil companies are once again as cozy with Alaska's governor and legislators as they were before this diversion that Agent Kepner started.. 

___ Is To Alaska What Football Is To Penn State

This is just a little thought experiment.  I’m going to try to keep the analogy simple.  [I didn't succeed.  Life is complicated and so many things are interrelated.  But the basic analogy you can read quickly.]


Fill in the blank:

___ is to Alaska  what football is to  Penn State.

 I'm sure every Alaskan reader would immediately say "thoughtfulness."  No?  How about that black gooey stuff?

When things go wrong, the very least we can do is learn something from them so that when the elements return in a different disguise, we can recognize them.  What then are the key elements of these two stories?

The Penn State

1.  A sacred cow - At Penn State, football served the function of uniting everyone in spirit and (at least people believe) generated a lot of money, which was translated into enhanced programs and lots of jobs on campus for people in the surrounding community.    Certainly the hotels and bars and restaurants benefited from crowds coming to home football games, and buying Penn State paraphernalia. The  university benefited from the television money the highly ranked football team brought in.  
Challenging the sacred cow in any way 1) is disloyal to the Penn State spirit and 2) threatens a lot of people’s income. 
This results in relatively little scrutiny because 1) everyone wants to believe in the goodness of football and 2) those benefiting don’t want to threaten those benefits.  The rule of a sacred cow is that no one should raise embarrassing questions.  So people self-censor, knowing that any criticism will bring on quick retaliation.

2.  Big fish in a  small pond.  Penn State is located in a relatively small city where its and football's influence is much bigger than it would be in a larger city.  A challenge from inside is unlikely.

3.  An aging hero with long incumbency- Joe Paterno's 45 year career made him the longest serving head coach in US college football.  Born in 1926, Paterno became Penn State’s assistant football coach in 1950, and the head coach in 1966.  Dan Rorabaugh at US News wrote a line that appears repeatedly online:  “Joe Paterno is Penn State.” Paterno did a lot of good.  In addition to winning, Paterno's team regularly had high graduation rates.  In 2011 his dynasty ended when it was disclosed that he knew that his trusted, long-term assistant coach and friend, had been sexually molesting young boys in Penn State related programs for many years.   Paterno died shortly after that. 


4.  A  spoiler:  A good friend of the hero who turns out to have some serious problems - For whatever reasons, personal loyalty, protecting the sanctity of PSU football, disbelief, Paterno turned a blind eye to Jerry Sandusky's crimes.  More than a blind eye, according to the Freeh Report.  The hero, it turns out, knew and blocked attempts to do something about it.



The Alaskan Story

1.  The Alaska sacred cow has to be oil.  And probably to an even greater extent than football at Penn State.   Close to 90% of the state revenue comes from oil.  Every community has projects that were built on oil money.  Every citizen is eligible for a permanent fund check. 

2.  Oil is a whale in a small pond up in Alaska. 

3.  An aging hero with long incumbency -   There is no hero as closely linked to oil as Paterno was linked to football.  The Alaskan most similar to Paterno was Senator Ted Stevens.  Senator Lisa Murkowski said at Stevens’ memorial "Ted was Alaska – he just was Alaska.”  He was born in 1923 and was appointed to the US Senate in 1968. Seeing any patterns?

When he left, he was the longest serving Republican in Senate history. In 2008 a good friend and political ally from the oil industry testified against  Stevens in court.  Stevens was convicted and lost his reelection bid months later. (The charges were later vacated by Obama’s incoming Attorney General because of prosecutorial misconduct.)  Stevens died in a plane crash two years later.

4.  A spoiler:  A good friend of the hero who turns out to have some serious problems.  Bill Allen, a high school dropout  who became a powerful political king-maker as the head of his billion dollar oil support company VECO, became a witness for the Department of Justice against a number of Alaskan politicians including Ted Stevens.  Aside for political corruption on behalf of the oil industry, Allen is alleged to have had an affair with an underage young woman. 



In the Penn State case, the Pennsylvania Attorney General's office came into the small Pennsylvania town where the University is located to prosecute Jerry Sandusky.  Penn State University accepted Joe Paterno's early retirement.  A University commissioned report by former FBI Director Louis Freeh harshly condemned a number of Penn State officials.  Paterno and three other key officials "are portrayed as manipulating administrative channels to protect Sandusky, the football program and their own reputations."  [If Alaska is a model, Pennsylvanians should watch for the rehabilitation of Joe Paterno in the not too distant future.]

In Alaska, the FBI began a covert operation which video taped Bill Allen's hotel suite in Juneau as he entertained legislators and made deals with them trying to prevent tax changes that were not approved of by the oil companies.  Allen cooperated with the Justice Department and was a witness in a number of court cases where state legislators were convicted of various corruption charges.  He also was the key witness in the Stevens trial in DC, where Stevens was convicted as well.  Stevens lost his reelection bid shortly after, narrowly.   However, Obama's attorney general vacated Stevens' conviction because of prosecutorial misconduct.


In the meantime, a former oil company lobbyist is now the governor of Alaska.  And few see any problem with this. Can you imagine the outcry if the former lobbyist for Green Peace or Wilderness Society were governor?  Although the oil companies have been tarnished, their interests are still in power and they are spending money to maintain their sacred status,  aided in the upcoming election by the Citizens United decision. 

Oil plays an important role in the world.  Oil has brought Alaska wealth and benefits we could not have had otherwise.  But any faction that gains so much power and influence in any society or institution, begins eventually to feel entitled and gets harder and harder to keep accountable. 

The stifling of sacred cow challengers shows up in lots of places. 

• Why weren’t people asking more questions about the home loan industry?  Or listening to those who did?  
• Why didn’t parents believe their kids who said the priest molested them, of if the kids remained silent, why didn’t they question the kids’ different behavior?  
• Why has it taken so long for the military to address the many psychological problems of soldiers returning from Iraq and Afghanistan?  Or take seriously the complaints of sexual harassment and assault by women in the military?  
• Why do we continue to spend billions on the so called War on Drugs when it clearly is so ineffective? 

All of these issues involve sacred cows that people want to believe in and people resist those who challenge those beliefs.  They all involve people who benefited from silencing and marginalizing those who challenged the system.  All of them have wealthy interests funding misinformation campaigns to convince the public and the decision makers that there is no problem. 

This is nothing new in human history.  Ruling classes have brainwashed their subjects from the beginning.  Americans think they are different, yet large numbers of our populaltion succumb to empty slogans, and to appeals to their fears and insecurities. 

I think about Egyptians and Libyans and Russians and Syrians who see through their government’s lies and risk their lives to change things.  Americans are willing to sacrifice the lives and mental health of the relatively few Americans who serve in the military, but what are they personally willing to sacrifice? 

It turns out that not staying alert has cost people their homes, their savings, and their jobs.  It wasn't a voluntary sacrifice.  Rather,  enough people voted for those false slogans and put people into power whose faith in unbridled capitalism allowed bankers and traders to make fortunes on what turned out to be giant swindles.

We get another turn at bat in November.   The propagandists are already spinning their lies and spreading hate and fear to convince voters to forget the size of the catastrophe that Obama inherited and instead blame him for the fallout of the Bush2 administration. 

----------
While I was looking for a link to support a point I'd made, I found that Cliff Groh had already made the Paterno-Stevens comparison in November 2011.

Schuelke's Ted Stevens Trial Report - Summary and Full Report Here

The Ted Stevens Trial Misconduct Report was made public today.  It's 500 and some pages.  It's the report on the prosecutors conduct in the Ted Stevens trial which led to Obama's attorney general to dismiss the case and verdict shortly after Obama took office.


The report was ordered  April 2009 by the  Emmet G. Sullivan who was the judge in the case.    The report, dated November 14, 2011, was written by Henry F. Schuelke III and William Shields and was released today, despite an appeal by one of the prosecutors investigated, Edward Sullivan, to not release it.

I have had enough time to scan the table of contents - 16 pages worth - and and the Summary of Findings, but not much more.   Here is the Summary of Findings and below  I've uploaded the whole report to Scribd so that I could make it more easily readable here for anyone with time on their hands and/or a burning interest.  I'll try to go through it in the next few days.

Executive Summary

The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness. Months after the trial, when a new team of prosecutors discovered, in short order, some of the exculpatory information that had been withheld, the Department of Justice (“DOJ”) moved to set aside the verdict and to dismiss the indictment with prejudice.

The Government recently discovered that a witness interview of Bill Allen took place on April 15, 2008. While no memorandum of interview or agent notes exist for this interview, notes taken by two prosecutors who participated in the April 15 interview reflect that Bill Allen was asked about a note dated October 6, 2002, that was sent from the defendant to Bill Allen. The note was introduced at trial as Government Exhibit 495 and was referred to as the "Torricelli note." The notes of the April 15 interview indicate that Bill Allen said, among other things, in substance and in part, that he (Bill Allen) did not recall talking to Bob Persons regarding giving a bill to the defendant. This statement by Allen during the April 15 interview was inconsistent with Allen's recollection at trial, where he described a conversation with Persons about the Torricelli note. In addition, the April 15 interview notes indicate that Allen estimated that if his workers had performed efficiently, the fair market value of the work his corporation performed on defendant's Girdwood chalet would have been $80,000. Upon the discovery of the interview notes last week, the Government immediately provided a copy to defense counsel.

Defendant Stevens was not informed prior to or during trial of the statements by Bill Allen on April 15, 2008. This information could have been used by the defendant to cross-examine Bill Allen and in arguments to the jury. The Government also acknowledges that the Government's Opposition to Defendant's Motion for a New Trial provided an account of the Government's interviews of Bill Allen that is inaccurate. See Opposition at 42-43 (Dkt. No. 269).

37

Case 1:09-mc-00198-EGS    Document 84    Filed 03/15/12    Page 49 of 525

Stevens, Motion of the United States to Set Aside the Verdict and Dismiss the Indictment with Prejudice, April 1, 2009, at 1-2 (Dkt. No. 324).

Our investigation revealed that, in addition to the failure to disclose Mr. Allen’s statements on April 15, 2008, that he did not recall speaking with Mr. Persons about Senator Stevens’s requests for bills and that the value of VECO’s work on Senator Steven’s home in Alaska was $80,000 (and not $250,000 as alleged in the indictment), other, significant Brady/Giglio information was intentionally withheld, including the following:

•    Mr. Bottini and Mr. Goeke withheld and concealed significant exculpatory information which they obtained from Robert “Rocky” Williams, a prospective government witness, during pre-trial witness preparation interviews in August and September 2008;

•    Mr. Bottini and Mr. Goeke withheld and concealed significant impeachment information regarding Mr. Allen, their key witness against Senator Stevens, which was obtained from Bambi Tyree by another federal prosecutor during an unrelated prosecution in July 2004; and

•    Mr. Bottini failed to correct materially false testimony given by Mr. Allen during his cross-examination in Stevens which Mr. Bottini knew at the time was false.

The information withheld from the defense would have significantly corroborated the trial testimony of Senator Stevens and Catherine Stevens, his wife, on the central issue in the case, supported defense attempts to expose Mr. Allen’s CYA testimony as a recent fabrication, and provided additional grounds to impeach his credibility and to question the integrity of the prosecution itself. See United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995)(“The gravity of the prosecutors' misconduct . . . may support, but it can never compel, an inference that the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted.” (citations omitted); United States v. Remington, 191 F.2d 246, 251 (2d Cir. 1951)(“Evidence of efforts to suppress testimony of evidence in any form like the spoilation of documents is affirmative evidence of the weakness of the prosecution's case.”)(footnote omitted).

Sen Ted Stevens Trial Misconduct Report

Since I sat through most of the three trials in Anchorage that led up to the Stevens trial in DC, I have some thoughts about the four prosecutors I witnessed here who are the subject of the report -  Joseph W. Bottini,  James A. Goeke, Nicholas A. Marsh, and Edward P. Sullivan.   The other two, Brenda K. Morris and  William M. Welch III, were not involved in the Anchorage cases.  I am getting more than the normal number of hits today for my post on Nicholas Marsh's death and also for observations on Mary Beth Kepner, the FBI agent in charge of the investigation.

Stevens Prosecutors - "serious, widespread . . . intentional" illegal concealment, but no prosecution

[UPDATE:  I should have checked before I posted this.  Cliff Groh already had posted on this and appears to have had access to the report.  Cliff, an attorney, attended the Stevens trial and has a better  sense of this than I do.  You can see his post at Alaska Corruption.]

There has been a trickle of web reports that the investigation Judge Emmett Sullivan ordered on the prosecution of the Ted Stevens case is complete.  Henry F. Schuelke's 500 page report will be available to the public by January.

I haven't been able find Judge Sullivan's actual order but here's what others are reporting:

 New York Times:

 "A court-appointed investigator has found that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial, a federal judge disclosed on Monday.

But the 500-page report by the investigator, Henry F. Schuelke, recommends that none of the Justice Department officials involved in the case be prosecuted for criminal contempt of court because the judge who presided over the trial, Emmet G. Sullivan, of Federal District Court in Washington, did not issue an order specifically instructing prosecutors to obey the law by turning over any exculpatory evidence. [emphasis added]

This last part sounds a little strange - that the judge should have to tell the prosecution to obey the law.  I do know that during the Stevens trial one local attorney told me he was astounded at the withholding of the evidence and said he'd be disbarred if he'd done something like that.  But later, another attorney told me that at the Federal level, the prosecutors have discretion over what they turn over while Alaska attorneys do not.  I'm not an expert here, so I'll just report what I've heard, but take it as speculative.

The Times article says the Schuelke reviewed 150,000 pages and interviewed dozens of witnesses. 

The judge quoted Mr. Schuelke as saying that the investigation and prosecution of Mr. Stevens had been “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”
Mr. Schuelke and Mr. Shields also “found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed — at least to the court and to the public — but for their exhaustive investigation. . .

While Mr. Schuelke did not recommend prosecuting the prosecutors for criminal contempt, the judge noted that the investigator had written that he offered “no opinion” as to whether “one or more of the subject attorneys” might instead be charged with obstruction of justice. 

The Justice Department Office of Professional Responsibility is also conducting its own investigation of the prosecution in this case. 


There have been a lot of strange and, for me, yet to be explained anomalies. 

• Stevens, at the time the senior Republican in the US Senate, was indicted by a Republican president while his Justice Department was shown to be exceptionally political.  Someone explained that the Public Integrity Section had considerable independence, but it's hard to believe that the White House hadn't been notified before things went public and thus hadn't at least tacitly approved.
• Ted Stevens' conviction was thrown out in one of the earliest high profile actions of Obama's Attorney General Holder
• Yet, despite that, Schuelke's report finds serious infractions but recommends no prosecutions.  

It seems there are still a lot of things we don't know.   This is a 500  page report so by January we should have some of these questions cleared up.  Or maybe we'll have more questions. 


 NewsFeed Researcher offers these additional sources on this story :

1. 'Serious misconduct' in prosecution of Ted Stevens, report says - Crime Scene - The Washington Post
2. DOJ: No misconduct in Stevens case - John Bresnahan - POLITICO.com
3. A court-appointed lawyer investigating prosecutors involved in the Ted Stevens case said misconduct by the department was pervasive. - Law Blog - WSJ
4. Breaking: Investigator Says Stevens Prosecutors Intentionally Hid Evidence | Main Justice

Cliff Groh Has Lengthy Background Post on Nicholas Marsh

There was an internet problem here at my mom's last night through this morning and the sun is shining beautifully so I had to go run and I do have to talk to and do things with and for my mom while I'm here, so this is just a quick link to Cliff's post at the blog Alaska Political Corruption which fills in a lot more details on Nick Marsh based on various reports he gathered.

Here's the link:

Notes on the Life, Death, and Mental State of Nicholas Marsh

(Marsh is the young federal prosecutor in the Alaska corruption cases who committed suicide last week.)

Alaska to be Buried in Virginia

Speaker after speaker told us at Ted Stevens' memorial in Anchorage that, in Lisa Murkowski's words, "Ted was Alaska."


The Anchorage Daily News reports today that Ted is to be buried in Arlington National Cemetery in Arlington, Virginia.

A Slice of Wednesday in Anchorage

This isn't even everything I ended up doing, but it's a few snapshots of some things that were happening in Anchorage yesterday.

An Alaska Common Ground committee was planning for their September 18 public forum on Corrections at the Bagel Factory. 

Someone lost their cockatiel. 

New Student orientation tours were happening at UAA.

Senator Ted Stevens was memorialized at the Anchorage Baptist Temple. 

Some bicyclist were enjoying the sun at Goose Lake.

As was a grebe.

Even this amanita found a little sun.

The UAA Masters of Public Administration (MPA) program had a reception for new students.

A family rode their bikes for pizza at the mall on East Tudor.

And this bull moose strolled along the perimeter of McLaughlin Youth facility.  (I know, I already put him in, but this is a different picture.)

Anonymous Bloggers

Anonymous left another message. There's been quite a few actually, a number of which I didn't post to allow him to give me information without publicly revealing clues to his identity. The style of Anon's posts range from 'loose' to 'very reasonable. You may have read a few and not realized it was the same person. And then he slips back into this sort of post. It slides along the edges and over the boundaries of respectful and seems at places to be reacting more to his image of what I'm writing, rather than what I'm actually writing.

OK, being rational isn't the only reasonable option. There's also funny. And tapping into one's emotions is also fine. But being irrational - things like jumping to conclusions based on false assumptions, not responding to the other person's arguments, not being internally consistent, etc. - doesn't help the discussion along. I understand that someone can forget all those things in an emotional reaction. But then as we calm down a bit and get to chatting, I expect one to get over that and into a more rational discussion, one where we aren't making snide comments. That doesn't mean we can't identify behavior that we see as negative or harmful, but that when we do that we try to separate the behavior we see as problematic from the person were talking to. And we point out the behavior we have problems with. When the discussion is in writing, it's not too hard to do.


As I've said in an earlier post, getting something like this once in a while is not a problem. If someone is doing their best to express themselves, but they aren't great writers, no big deal. But it was a flurry of such posts that caused me to turn on the 'review comments' function and to offer some guidelines for commenting here. And suddenly this and at least one other anonymous poster took more care on their posts. So I began approving them.

Let me go through the latest comment with my reactions. This is a comment on the post Blogging - What's Real? How Do We Know? Stevens, Kepner, Joy? posted April 3 and this comment is dated April 15, 12:27pm. (I've been rejecting this sort of post since last week, but I do want my readers to know what I'm reacting to.) In the comment prior to the one below, I say I have a life beyond the Stevens trial, but I'll pay attention and if I think I have something of important to say, I will. I end with, "If anyone has important info that isn't available elsewhere and they are willing to write in an objective, non-derisive way, I'll consider guest posts." Anon writes:

Well, derivise, and non-objective commentary, has been thrown at some DOJ attorneys from assorted, as if that is some Soccer Club thing, the Artic Bears vs, AMERICA & fed by the cheering, and Esq AK club fans in assorted artic circles.Wev the head, the main nail 'em,, nail the public servants, those outsiders, those lower 48ers

OK, I take this to mean there are Alaskans who are being derisive and non-objective about some DOJ attorneys.

The main public servant attorney under attack by the Artic Club is Nick Marsh.
He acheived a substanial victory in the 9th Circuit, when some of the Artic Club sought to withhold evidence(the Ak bribe matters).
He is a graduate of Duke Law School, and used to work with a big NYC law firm, Sullivan and Cromwell, and was noted in this case:

http://bulk.resource.org/courts.gov/c/F3/351/351.F3d.1348.01-16973.html

OK, I've seen Nicolas Marsh in action at the Alaska political corruption cases. I've given my impressions of him in court which in terms of the important things were mostly positive. I did find him very technically competent, but, particularly in the first trial, I thought his person to person communication with the jury could be stronger. I know about Marsh's previous employment because I googled him during the Alaska trials since the DOJ would give no background information about the attorneys. I'm guessing the victory in the 9th circuit was the Weyhrauch appeal, but I'm not sure the importance of the linked case. It mentions Marsh once as the eighth of eleven attorneys listed for the Plaintiffs-Appellees.

With all the artic club white collar club support group, now -- will Mr Marsh have to hire an attorney(his own attorney), given how the artic club is yapping, and jiving, and going on about the low
fatality rates on red shirts, and the flow of traffic.

Since my most recent post was about traffic fatalities in Thailand during Songkran and how much higher they were than deaths in the red shirt demonstrations, it seems reasonable to conclude that Anon is including me amongst the 'artic club' 'yappers' that are responsible for Marsh apparently hiring a private attorney. (And I have reason to believe that the Anon comment on the Thai traffic post is from this same Anon.)

Here's a spot where I don't see the logical flow of Anon's argument. I've hardly said anything about Marsh for a long time. I did note a couple of times that he had been on the team that very competently handled the Alaska cases. If anyone cares, they can put Marsh into the 'search blog' window in the upper left on the tool bar above. Is it because I'm not dropping everything else I'm doing to pursue this? Since when are bloggers beholden to do the bidding of their commenters? Now, Anon may take that to be a derisive comment. I think it's a fairly reasonable statement of my take on this. I could be wrong on it being presumptuous, but rather than taking it as an insult or condescension, if Anon were to take issue with this, he should point out why it isn't presumptuous.

I suppose derivise is in the eye of the beholder, it does point that up.
For a while, it looked like Steve was obssessed on blowing the cover for some "annons", to tell who they were not, as if he has that copy right, & as if telling 'em how to write comments on SEA Museums, or fear abounded he would lose friends, if he did not.

I can understand the confusion based on one of my post titles.. But I did address this in an earlier post or comment. And the post itself isn't about identifying the commenter. My post on "Figuring out My Anonymous Commenter" was not aimed at figuring out who the commenter was, but at the commenter's motives and how I could determine if the commenter actually had access to important information relevant to the Stevens trial fallout. While I think I have an obligation to be polite to people who post here, I don't have an obligation to spend my time responding to whatever they propose for me to do. If I determine it isn't leading to something useful (the commenter has the responsibility to help me see the importance,) I don't need to spend more time on it. And if the commenter is changing the tone of my blog by the number and tone of the comments, I have no obligation to keep posting them. Fear of losing friends? It might be interesting to see who Anon thinks my friends are. My friends respect what and how I write even if they don't always agree with me.

I don't have a need to know who Anonymous is. It would be helpful to be able to distinguish between one Anon and another Anon so I can be sure to respond to them individually. But I respected Anon's privacy and suggested he email me instead of posting to the world if he was concerned.

Anon's response was links to sites explaining government programs to eavesdrop on private email. Since I thought he was telling me he didn't want to be tracked down, I then tried to set up a way for Anon to communicate with me without having to post his comments for the whole world to see. The response to that was blasting me for censoring his comments. I do recognize that trying to communicate that way raised the possibility that some messages from me didn't get read. But I have evidence that most if not all were read.

We have lost all hope of objective, fairness, and bringing out to the artic club other aspects on things, it is most obvious how the Artic Club works.
So, now band this post too, with so many others, and pat yourself on the back as some fairness objective: IN the KNOW from your perspective.
Hey, you pay the hook up fees, that must make you non-derivise, and in the know.
Now, do as your usual -- push your remove button. And, wait for others to examine matters, who do not have that Artic edge/ slant.

I understand this to mean that I'm still hopelessly unfair and subjective, and I'm still going to ban this commenter. I have a license to be derisive (no examples of where I was being derisive.) Then Anon seems to back off a bit. Go ahead, Anon, seems to be saying, give it up and let others, without an Alaska perspective, pursue this story.


This good cop/bad cop routine is starting to get tiring.

So, why am I spending all this time on this Anonymous commenter? (Yes, I'm pretty sure there are more than one of these Anon bloggers, but I'm also reasonably sure that many are from the same person). Because:

• Writing things out helps me think through them.
• I assume that there is a person inside every body despite the masks people hide behind. So I'm giving a shot at some real conversation before I pull the plug on these comments.
• Anonymous bloggers and anonymous commenters are something of an internet phenomenon. I hope that my thoughts here might be helpful to others facing this.
• Maybe someone who has a better handle on this will email me with sage advice.
• Even if I'm wrong and my effort to engage Anon in a real conversation fails, other readers can understand my thinking process as I try to work this out.

Figuring Out My Anonymous Blog Commenter

I've gotten a blizzard of posts from an anonymous blogger urging me on to keep digging about for skeletons in the Stevens' case.

With the traveling I haven't had time to go through everything carefully, but there are three key thrusts that stand out so far:

• He (I'm assuming the poster is a he) doesn't think much of Chad Joy
• He is similarly ill-disposed toward Wev Shea
• He points to the identities of the attorneys who interviewed Bill Allen "who (which, where etc) was the basis to tube the conviction(jury nullification)" as the crux to finding the 'real story' of the Stevens case.

Unlike a traditional newspaper reporter's source, this source posts all his tips are as comments on different posts related to the trial, out in the open for all to see. I've suggested he just send me an email, but it's all going up in comments. Maybe 10 or 15 posts in a couple of days. Most would never make it into the letters to the editor column. Most friends have raised their eyebrows and wondered about the writer's sobriety. The posts defy the rules of grammar and leap to conclusions with fragmentary evidence.

His last couple of posts have been much more grammatical and coherent and specific. Maybe he's getting impatient with me not being responsive enough. But I have been on airplanes a lot of the last 48 hours and still have one more (I hope that's all - I'm in Salt Lake City right now and the plane is listed as on-time about 3 hours from now, but I can only find pay wifi, and I'm not THAT addicted that I can't wait, so I can't check on volcanic activity) til we get to Anchorage.

But I have been thinking about him and here are some thoughts about ways to evaluate an anonymous poster. Here are some factors, each of which would have a continuum from a version of bad to a version of good.

1. Motive - Is this something he's doing for self gain or does he see this as a public service? Is he out for revenge or for justice? Is he trying to settle a score or right a wrong? These are not necessarily mutually exclusive. For example, revenge to right a wrong could be both for self-gain and public service.
   
   
2. Access to Information - Does he have insider information? Or is he someone who doesn't have special access to this story, but may have an ax to grind with some of the players.
   
   
3. Judgment/Wisdom - Assuming for the moment, that his motive is good and he has inside information, does he have the wisdom and judgment to interpret what he knows accurately? Or is he the type of person who sees a few bits of information which pass through his mental models and spit out nonsense? Having access to the facts is just step one. Then we have to interpret them. Is this guy good at doing that?
   

I don't know enough to determine the answers to these questions. It clearly has a greater interest in the details of this case than most people, and writes about details that the average person knows nothing about. So probably he's more insider than outsider on this case. But the other two factors I can't judge yet.

Then there is the question: Why me? Why this blog? He thinks Chad Joy has done wrong and he thinks that people on the inside have thrown the case leading to the dismissal of the conviction. I've voiced doubts about the substance of the Joy complaint and raised questions whether this case was just badly handled or whether there were people intentionally messing it up. He might see me as someone who is open to the arguments he's making. But maybe I'm not the only one getting this stuff.

At least one reader has told me that I've already been charmed by Kepner into seeing things her way. Others - non-Thais in Thailand who know little about the case - are highly cynical about everything and think this could be someone trying to use me for some unknown agenda.

As I said above, the last couple of posts have gotten more coherent and specific. Maybe I don't have to do anything except let the poster keep posting comments.

Matthew, who's hawking Delta credit cards has offered me access to his wifi so I can even post this before I go.

Blogging - What's Real? How Do We Know? Stevens, Kepner, Joy

It's Saturday morning in Chiang Mai. We have tickets for the Monday afternoon flight to Taipei and Tuesday afternoon to Anchorage. I've got things to do, but I got a comment today on the Let's Get Real about Mary Beth Kepner post that has my brain twisting.

How do any of us know what is real? OK, I don't want to go into a deep philosophical discussion, so let's limit this to what we see and hear in the news. Suppose you read that a prominent politician's conviction has been thrown out and that there were allegations of prosecutorial misconduct, and that there was an FBI 'whistleblower' who said his partner was violating the rules and was much too close to the witnesses. And the defense claimed this partner was having an affair with a key witness based on the whistleblower's complaint.


How do we cut through all that to find out what is true? I don't know about you, but I tend to rely on my beliefs which are based on my experiences and education. Those beliefs then inform the labels I read in the article. The interpretations are tempered by any personal experiences I have had directly with any of the people or places in the article.

I tend to 'think' more than the average person. My job was to think critically and to teach people to think critically. But I still get seduced by my stereotypes when I'm not being careful, especially if a story matches what I want to believe.

So I tend to be wary of 'politicians'. The nature of the system is that they need to raise money to get elected. And we know that people that help them get elected with big contributions are more likely to get an audience when they want one. Most people write checks to candidates they agree with, so if a candidate votes the way the contributor suggests, it isn't necessarily suspicious. But big lobbyists tend to contribute to all the likely candidates - it's not about ideology, it's about getting a foot in the door and getting what they want later on.

So 'politician' being convicted of corruption. My unthinking response is, "Yes!" If it's a Republican, then add another exclamation point. OK, I know there are honest politicians and good, decent Republicans. But if I don't stop to reflect on that, my gut reaction works through my stereotypes. But in this case, there are personal experiences too. I've met Ted Stevens on a couple of occasions. (I'm an Alaskan. Is there an Alaskan whose been around more than five years who hasn't met Ted?) He's smart, he's rabidly dedicated to doing what he thinks is right for Alaska which tends to mean getting money sent to Alaska. He also has been a Senator forever and from what I can tell, he already had an ego and temper long ago. All these years surrounded by sycophants hasn't helped his ego. And I know people who have told me they've seen the effects close up of how some of that money has spilled over into the waiting buckets of associates. Fishing and Seward for example. [Note: The ADN seems not to be giving free access to the Seward article. You may need a library password to get through on this link. The article citation is: Ben Stevens ' secret fish deal - State senator helped steer Adak pollock to a company he had financial stake in Anchorage Daily News (AK) - Sunday, September 18, 2005 Author: RICHARD MAUER Anchorage Daily News ; Staff ]

Whistleblower. That's a magic word for me. This is someone who sees a wrong and when the powers that be won't fix it, he or she risks everything to make sure the public is protected. Deep Throat. Daniel Elsberg. Jeffrey Wigand (played by Russell Crowe in The Insider). Karen Silkwood. These are all heroes. So the word whistleblower tends to turn on the 'good guy' reactors in my brain.

But in this case, I have some personal contact. I've watched in court and had several conversations with the 'corrupt' FBI agent. And the 'whistleblower's' comments are at odds with my sense of Mary Beth Kepner's professionalism and judgment.

Our science based society puts lots of weight on objectivity. We're supposed to keep an arm's length. We're supposed to judge the facts using rationality, not feelings. I had a conversation just yesterday with an anthropologist who is studying farmers in a small Thai village. Anthropology has gone through these debates about studying cultures 'objectively' from the outside or 'subjectively' by being a participant. This anthropologist is living in the house of one of the villagers when staying there and has been unofficially adopted by the family. This puts some limitations on the anthropologist's movements, but on the other hand gives the opportunity to learn things that wouldn't be available to someone looking 'objectively' from outside. There is no one best way.

When I first started blogging the trials in 2007, it didn't occur to me to talk to any of the participants. I was somewhat surprised to see some of the reporters chatting with the defense attorneys, the prosecutors, even the witnesses. Well, of course, Steve, that's what reporters do. But to me it seemed like that would taint what I wrote. If I actually know someone, if they had the courtesy to talk to me, wouldn't I owe them something, some sort of restraint perhaps on what I wrote?

Eventually, I did one day ask an FBI technician a question about a missing exhibit and learned from the answer that they had been reading my blog and trying to figure out who in the courtroom was writing it. OK, so that's what I wanted, people reading my blog. But to what extent do I then become a participant? But every reporter has to deal with the fact that their subjects read their articles and in many cases their behavior is affected by what they read. There is no complete objectivity. That led me to invite Mary Beth Kepner to talk to a class. And there were, as I've said in other posts, other conversations when we accidentally met somewhere in Anchorage.

So, when I read her name in the newspaper along with the 'whistleblower's' allegations, I had to think carefully about whether those personal conversations gave me important information (like the anthropologist gets from the adoptive family) or whether those conversations bias me against the 'whistleblower' and make me miss 'the truth.' [I know that putting things in quotation marks can be annoying, but it's the cleanest way I know how to point out that I'm using these words with some skepticism.]

So I read the complaint carefully. While I acknowledge I couldn't totally erase my impressions from my mind, the complaint on its own just seemed peculiar. I've written at length about it. First the redacted version. Then the less redacted version. (I even blew my own horn a bit when there were news reports that Joy hadn't been granted whistleblower status, but that turned out to be another lesson in why you shouldn't blow your own horn. Whistleblower status turned out to not be so clear cut in the Justice Department.)

Law enforcement officers have a lot of pressure to not rat on their own - even when their own commit serious crimes. Why would this agent rat on his colleague for things like being too close to an undercover source? It's an anomaly at the very least, if not bizarre.

I've written quite of few posts on this topic. The one that comes closest to tying things all together with links to all the others is Checkered Swan at the Stevens' Trial? post.

But in this post I want to focus on the difficulty of really knowing and how each of us has stories buried in our heads which give meaning to the words we read, whether that meaning is really in those words or not. Even if we don't have an immediate personal stake and won't be affected in any way, we judge where the truth lies not so much on the facts (in this situation there are still enough missing facts that we have to use circumstantial evidence) but on our beliefs, our prior experiences with the labels in the story, and our own emotional needs.

Perhaps Mary Beth Kepner did some voodoo on me that has kept me disbelieving Joy's allegations. Perhaps my ego is now invested in this and I want things to fall a certain way so that I will be vindicated as being right from the beginning. I work hard to make calls based on as much factual information as possible and with as much self-examination of my own hidden biases and motives as I can. Most of the time I don't write conclusions because there's still too many missing pieces. I just stack up the evidence as I see it and let readers draw their own conclusions. But, of course, which things I choose to list and which I omit, and how I tie them together will affect where the uncritical reader takes it. And the ideologically motivated reader will not be persuaded at all if my stacks of evidence don't point to the conclusion he wants to believe.

So, as someone who has followed this story closer than most people and still is not sure what it all means, I'd call on others who value the quest, if not the certainty, of truth, to be cautious in their conclusions. And to be skeptical of those who use any of this story to declare certainty about anything but the absolute facts - such as the fact that the Attorney General has written:

In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

And even here I'm taking the Anchorage Daily News' word for it, but there were many other similar reports so I feel reasonably confident this is accurate.



So, about that comment on the blog today. How do I know that the writer has something solid? Part of me wants to say, "Yes!' just because it would mean I was on the right track. But how much does he really know? It sounds like he's had a closer look than most, but that doesn't mean that his filters, his stories didn't lead him to unwarranted conclusions.

Ambiguity is not one of humankind's favorite places to be. We like to know. And even if we don't have enough evidence, we tend to jump to conclusions anyway. We like closure. I think that's why sports are so popular. At the end of the game we know who is the winner and who is the loser. Some may still dispute which is the best team, but they can't dispute who won the game.

[UPDATE March 17, 2012:  Cliff Groh pursues the question of why the Bush Administration pursued the Ted Stevens  indictment using the Schuelke Report for more information.]

And then there is Sarah Palin

The Gist:

The people she so righteously decries for making 'blatant attempts. . .to destroy Stevens' were from the Bush Justice Department. Those who made sure his rights were "well-guarded" and dismissed the charges were from the Obama Justice Department.

The Whole Post:

(Thursday, April 2, 2009, 8 am Thai time) I knew something was up when I started seeing hits for Mary Beth Kepner again. Then someone left a comment on my Does Race Matter? post saying that the charges against Ted Stevens had been dropped. Although it was April 1, that isn't the kind of thing you make an April Fool's joke about. But I couldn't find much detail on the story before I went to bed and decided to try to digest this before posting anything. I have had attorneys tell me that the prosecution team had been totally out of line and the case should be dismissed, so I wasn't completely surprised. But still it was a stunner.

Now, though, as I look through the comments by various players and observers posted in the Anchorage Daily News (ADN) this morning, I'm disturbed (my regular readers know I tend to understate things) by the comments of our Governor. All the other comments in the story address the legal and personal aspects a in a more-or-less objective and muted tone.

At the most neutral tone we have the attorney general's words:

“In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant. After careful review, I have concluded that certain information should have been provided to the defense for use at trial.

Ted Stevens' comments are also focused on the facts with little emotional elaboration and give credit where credit is due.

I am grateful that the new team of responsible prosecutors at the Department of Justice has acknowledged that I did not receive a fair trial and has dismissed all the charges against me. I am also grateful that Judge Emmet G. Sullivan made rulings that facilitated the exposure of the government’s misconduct during the last two years. I always knew that there would be a day when the cloud that surrounded me would be removed. That day has finally come.

The defense attorney's statement discusses the points of the dismissal, then gives effusive credit before slipping into a bit of editorial language.

Attorney General Eric Holder, too, should be commended. He is a pillar of integrity in the legal community, and his actions today prove it. Moreover, he has demonstrated the kind of leadership that we defense lawyers seek and that the Department of Justice desperately needs. Ineffective leadership permits this type of prosecutorial misconduct to flourish.

This case is a sad story and a warning to everyone. Any citizen can be convicted if prosecutors are hell-bent on ignoring the Constitution and willing to present false
evidence.

And then there is Sarah Palin. She adopts the language, tone, and emptiness of a talk show host. Does she realize what she's saying?

Senator Stevens deserves to be very happy today. What a horrible thing he has endured. The blatant attempts by adversaries to destroy one’s reputation, career and finances are an abuse of our well-guarded process and violate our God-given rights afforded in the Constitution. It is a frightening thing to contemplate what we may be witnessing here – the undermining of the political process through unscrupulous ploys and professional misconduct. Senator Stevens and I had lunch together recently at my home and he reiterated the faith he held for vindication; he never gave up hope. It is unfortunate that, as a result of the questionable proceedings which led to Senator Stevens’ conviction days before the election, Alaskans lost an esteemed statesman on Capitol Hill. His presence is missed.

I'm sure there are people for whom the governor's statement hits just the right tone. But unlike Stevens and the Defense Attorney, she leaves out any credit for justice being done. But does she even realize who those adversaries were?

The people she so righteously decries for making 'blatant attempts. . .to destroy Stevens' were from the Bush Justice Department. Those who made sure his rights were "well-guarded" and dismissed the charges were from the Obama Justice Department.


Can you imagine any of George Bush's attorneys general taking similar action for a prominent Democrat? Or a McCain/Palin attorney general? If the Obama administration had the same sort of mind set that Palin displays here, this decision never would have been made.

All that said, given how the professionalism of the prosecution changed so radically when they moved to DC, I still have to wonder whether someone in that Bush Justice Department did things intentionally to get this trial thrown out.

[Update: See Cliff Groh's interpretation on all this. He was at the trial of Stevens.]

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.

Let's Get Real About Mary Beth Kepner

[Update, Saturday November 20, 2010:  As leaks suggest that a "draft Justice Department  report makes misconduct findings against" Mary Beth Kepner, I've organized my thoughts on all this in a new Kepner post with links to relevant posts since this post.]

[Tuesday, January 27, 2009, 9:30 pm Thai time] I saw more hits from people looking up Mary Beth Kepner than any other single google search term today. Then, later, someone sent me a link to a story that begins like this:

Stevens: Agent, witness had romance
By JOHN BRESNAHAN | 1/26/09 5:42 PM EST [I've corrected the link, sorry about that, I accidentally put in the link from the email.]

Whoever put that headline up is the kind of person who gives bloggers a bad name.  I know that people want to believe the worst and really don't care about the facts. [As I look at that headline again, pre-posting, I realize that the colon means that Stevens is alleging this. But I missed that the first few times I looked and I'm sure others did and will, as the person who put it there (presumably Bresnahan) intended.]

Let me say from the beginning here, as I've said in previous posts: Mary Beth Kepner met with a class of mine and I've talked to her on a couple of other occasions when I've accidentally run into her around town. I even met her mother at the Weekend Market in the summer. (For non-Alaskans, that happens a lot in Anchorage. We have a small population and we see people we know when we are out and about.) I'm a reasonably cautious judge of character - I know that often people are not what they seem to be. With those caveats, I'm 99% sure that Kepner is a stellar agent who has played very craftily in the grey area of working with undercover sources. Chad Joy seems to be extremely rigid and can't deal with ambiguity, grey areas, or the difference between the letter of the law and the spirit of the law.

Let me say that for the most part, while some of my blogger friends come out and say things like, "He's a total slimeball" I generally put all the evidence out there for the readers and then let the readers draw their own conclusions. Generally, but not today. I did that in a very long post on the original, heavily redacted, complaint that this story is based on.


The headline is totally sensational and based on the flimsiest of evidence, as the story says later. Well the story doesn't say the evidence is flimsy, but it gives the evidence.  It's evidence I and others have posted already in more depth.   FBI special agent, Chad Joy, in a complaint he filed with an internal oversight unit within the Justice Department (that did NOT grant him whistle-blower status) says that:

1. Most recently, Kepner met with Allen by herself in her hotel room in Washington, DC.
   
2. Kepner wore a skirt for Allen during the recent trial during his testimony. Kepner doesn’t wear skirts.
   

1.  Two people can't be in the same hotel room without having sex?  Do you think she'd have met with him in her hotel room if she could have imagined that anyone would have leaped to the conclusion they were having an affair?

2.  Obviously, one of the two parts of the second statement is false.  Either she DOES wear skirts sometimes, or she DIDN'T wear one in court.  Basic logic.  OK, I know he means something like he's never seen her in a skirt before.  But this is evidence in a serious complaint?  By an FBI agent no less?
It's sort of like someone saying Mr. X murdered Mr. Y based on the evidence that someone says he saw Mr. X buy a gun. Just as I could win the lottery tomorrow (if I'd bought a ticket), the odds are millions to one against it.

From there the Defense team filed a motion to dismiss the Stevens conviction based on a number of issues including their leap to claim that Kepner and Allen were having an affair.

OK, I acknowledge that nothing is impossible, but this allegation (as well as the post cited above) is clearly part of an attempt to invalidate the Stevens conviction, and seemingly part of a scheme to make the Prosecution case look ridiculous whether there is evidence or not.  I can't speak for what happened with the Prosecution in the DC based Stevens case. I've offered possible explanations in at least one previous post already. But I can speak to Joy's comments about Kepner in the investigations and working with sources.

Let's look at some of the facts:

Bill Allen is in his early 70s, but looks and acts older. When Allen testifies, the prosecutors first take pains to point out he was in a motorcycle accident that has affected his ability to find the words he wants to say, but not his memory or his thinking abilities. Judging from when I saw him on the witness stand in the Kott and Kohring cases, I would say his mind works just fine, but he does have trouble speaking fluently at times and he walks slowly. He's an old man who's not well.

Kepner is a fit, attractive woman, attractive in a very natural and unobtrusive way,  probably between 30 and 40 years old. She instigated, as I understand it, and has been in charge of, the FBI investigation of Alaska corruption since 2004 and has been pretty busy working the case with various sources and with the Prosecutors most of the time.

I know such alliances happen, but usually the younger lady is hoping there will be an inheritance. While Allen is wealthy, there's no way Kepner could be expecting to cash in on that.

She is not your stereotypical FBI agent. Well, you could say that was obvious since she's not a man. But beyond that, she exudes a sense of sincerity and caring with the people she's talking to. I realize I'm generalizing from my own experience, but most of the media who covered the three trials in Alaska that I've spoken with also admire her. Frank Prewitt (about whom I have serious ethical concerns), a key source in the Tom Anderson trial,  wrote a book in which he often praises Kepner  while being snide about almost everyone else - including Chad Joy. Let me quote from him as I did in the post on the original, highly redacted complaint.    Prewitt is writing about meeting with Kepner because there have been complaints that she got a gift from him - a painting of her dog by his wife.

"Let me get this straight. I worked covert operations with you and your team nearly full-time for two years, worked overt, including trials, for another two, and someone's concerned we might be too close!?" I squinted, leaned forward and cynically whispered, "Has anyone told my wife?". . .

Come on Kepner, once you figured out I wasn't a crook [this was debated in trial - it seems at least that the statute of limitations was up] you know very well we both had to trust each other to do what we've accomplished. If I hadn't thought you really cared about me, my family, and getting to the real source of the corruption, I would have been out of here a long time ago. . .

In truth, we had become very close. People have real lives, real feelings, real highs, and real lows. Some people bring out our best, others our worst. Some relationships fit like a glove, others chafe like a scouring pad. Most of us are healthiest and happiest in circles of mutually supportive community. And for all those very natural reasons Kepner and I worked well together.

"I understand Bureau concern over conflicts of interest. But extreme cases make poor general policy. It was your training and humanity that accomplished the government's mission. Robotons don't have instincts or feelings, that's why they make crappy supervisors and can't solve cases, they also make lousy friends."

I would note that while Prewitt is clearly a very smart man, the details of the book, as he acknowledges, are not necessarily accurate.  And he is the hero in his own book.  But this section about their relationship rings true with what I know. While nearly everyone else in the book gets skewered, the fact that he didn't do that to Kepner and instead portrays her very positively, says something about how he regards her. And how I would imagine Allen regards her. Remember, Kepner's investigation brought down Allen, one of the most powerful men in Alaska, but he's stuck around and been a convincing witness in three trials. If wearing a skirt is going to keep him testifying, I say go for it.

I also know of another person who lost his freedom due to Kepner, who nevertheless, speaks highly of her too. This all tells me she does her job of working with undercover sources exquisitely well.




There was a time when women were trying to get into law enforcement, but there were barriers - mostly physical. First it was height requirements which kept out most women. Then there were requirements like "able to carry 100 pounds for 100 yards." Those too, were eventually shown to be basically irrelevant to most situations. What wasn't generally recognized by the old guard was that women had compensating abilities. They often can calm down situations that the guys who can carry 100 pounds would inflame.

My suspicion is that Kepner's use of her 'feminine' charms to so successfully work her sources has driven Chad Joy's frustration level through the roof. It's all so unmanly. And so exceedingly successful. These folks are cooperating voluntarily because they want to please Kepner, not because she's some big bad guy they are afraid of.


The most plausible story for me is that Kepner has used her skills, including charm, to keep Allen active and cooperative in the various cases - he first testified in fall 2006. Her playful intelligence and her seeming guilelessness which appears to have worked on Frank Prewitt too, seems to work well on Bill Allen. Both these men are smart enough to know she's an FBI agent and playing them, and both probably enjoyed just being in her company. I suspect there aren't that many people who feel that way about Chad Joy. And it bothers him, I suspect, that this woman is being so successful using decidedly un-macho techniques.

Am I falling under the Kepner spell myself? I came of age when J Edgar Hoover WAS the FBI and he was the personification of power gone bad. Kepner has given me renewed faith in the FBI. I have this to say in my defense - my wife, who has also met Kepner, likes her too and doesn't feel the least bit jealous. (I double checked this last fact just now.)

Some of the googlers have been looking for "Mary Beth Kepner photo." Part of me thinks a photo of her would help people get who she is. But I also have been fascinated by how the person who is behind shaking up the Alaska political scene like no one has ever done before can wander around Anchorage unrecognized. There are photos of her on different Alaska blogs, including on this blog; I'm not going to repost my picture here.