By the conventional standards of Washington scandals, the prosecution of Senator Ted Stevens flashed only briefly across the national consciousness. Stevens was a major figure in Alaska history, and was serving his sixth full term in office when he was indicted, in 2008. He was charged with failing to report gifts, principally in the form of renovations to a small house he owned. Stevens was convicted in October of that year and, two weeks later, narrowly lost his race for reëlection. Before he was sentenced, his attorneys, led by Brendan V. Sullivan, charged that the verdict was tainted by government lawyers’ misconduct in the case. In April, 2009, Eric H. Holder, who had just become Attorney General, came to agree with that claim. Holder asked that Stevens’s conviction be vacated and the indictment against him dismissed. This past August, when Stevens was killed in a private-plane crash, he was mourned across the state as a hero. His funeral drew three thousand people, including Vice-President Joseph Biden, a longtime colleague in the Senate, who said, “No state has ever had a more fierce defender of that state’s way of life than Ted Stevens.”
The matter of the botched prosecution faded from public view. Stevens, despite losing his Senate seat, had largely restored his good name; out-of-town guests at his funeral flew into Ted Stevens Anchorage International Airport. Brendan Sullivan and the federal trial judge in the case, Emmet Sullivan (no relation), moved on to other cases. There were two pending investigations of what went wrong in the Stevens prosecution, one by the Justice Department and the other by a Washington lawyer chosen by Judge Sullivan; neither has yet released its findings.
But the Stevens case was more than an unsuccessful prosecution. It was a profoundly unjust use of government power against an individual—a case flawed in both conception and execution. Holder asked that all charges against Stevens be dismissed because the prosecutors had failed to disclose to the defense critical exculpatory evidence—a fundamental breach of prosecutorial ethics. It remains unclear which of the several Justice Department lawyers on the case was primarily responsible for this failure; likewise, it’s difficult to say if the prosecution team’s errors were inadvertent or intentional. What’s indisputable is that the government did not play fair with Ted Stevens.
Still, all the prosecutors in the case remain with the government, except one. Nicholas Marsh, as a relatively junior lawyer in the Justice Department, built the case against Stevens, and, working with F.B.I. agents and local prosecutors, coördinated a massive investigation of corruption in the state’s politics. The efforts of Marsh and others resulted in nine convictions, including six guilty pleas, and culminated in the Stevens trial. But when that case fell apart Marsh suddenly found himself the subject of a criminal inquiry rather than the leader of one.
Marsh came to feel that this scrutiny was destroying his life. Against his will, he was transferred by Justice Department superiors out of the élite Public Integrity Section and into the relative backwater of the Office of International Affairs, which does not conduct prosecutions. Marsh awaited the results of the two investigations, but months, and then a year, passed without either one coming to a conclusion. His impatience gave way to despair. On September 26th, Marsh committed suicide. He was thirty-seven.
The F.B.I. dubbed the Alaska investigation “Operation Polar Pen,” because it started when government officials uncovered corruption in plans to build a private prison in the state. In 2004, a former corrections commissioner agreed to coöperate with the authorities, and taped notable Alaska figures discussing bribes to public officials. This evidence helped prosecutors obtain court orders to place a bug and a hidden camera in Suite 604 of the Baranof Hotel, in Juneau, the state capital. During legislative sessions, the suite was reserved for the use of the Veco Corporation, a major oil-services firm, and its chief executive, Bill Allen.
The tapes from Suite 604, which became notorious in Alaska, revealed the operations of what was known as the Corrupt Bastards Club, a group of legislators who solicited and accepted bribes from Allen and others. For most of the politicians, the amounts of the bribes were no more than a few thousand dollars, but the atmosphere was one of brazenness. At the trial of Pete Kott, a former speaker of the Alaska House of Representatives, his girlfriend testified that she embroidered the letters “CBC” on about a hundred baseball caps. The Justice Department had sent Marsh from Washington to Anchorage, to run the investigation, along with a team from the local U.S. Attorney’s office.
Marsh spent four years commuting to Alaska. “It was covert for a good chunk of the time he spent working on it,” Ray Hulser, a supervisor in the Public Integrity Section, told me. “It was wiretaps and bugs in hotel rooms. Nick was the guy who was on it from the start, like no one else. He was the one people looked to on the team as having the most institutional knowledge. That’s an unbelievable amount of pressure and scrutiny to go through.” In time, Marsh negotiated plea bargains with some of the best defense lawyers in Alaska, and conducted two trials. “The lawyers in the U.S. Attorney’s office were a couple of decades older than Nick, but there was no doubt that he was the top dog,” Jeff Feldman, who represented an early target of Operation Polar Pen, said. “He was making the decisions.”
The case came into public view in August, 2006, when F.B.I. agents executed search warrants at a number of legislative offices in Juneau. In 2007, Marsh moved into the courtroom to help make the case against Kott on charges of conspiracy, bribery, and extortion; Kott was convicted and sentenced to six years in prison.
In many respects, though, Marsh’s most important task was negotiating a deal with Bill Allen, whose bribes fuelled so much corruption in the state. “I don’t think I ever had a personal conversation with him,” Robert Bundy, an Alaska lawyer who represented Allen, said of Marsh. “Nick was all business, all the time—always cordial, but very focussed on the cases.” In the end, Allen pleaded guilty, on May 7, 2007, to charges of bribery and conspiracy for his dealings with four state legislators, including the state senator Ben Stevens, Ted’s son. Most important, Allen agreed in his plea bargain to coöperate with the government in making more cases. (Allen is currently serving a sentence of thirty-six months.)
In practical terms, that meant Marsh and his colleagues had the elder Stevens in their sights—and Bill Allen was going to be the key witness against him. “Nick was obviously bright, hardworking, well educated, aggressive, but he seemed tightly wound,” Feldman said. “To meet and engage him, he was the personification of the young prosecutor who had gone pretty far pretty fast, and I would have said, as an older person, that it might be good if he knew a little more about people and a little less about law.”
The family of Linda DeVries, Marsh’s mother, settled in Kentucky in the seventeenth century. “We are all devoted Kentuckians, and Nick bled Kentucky blue, especially for the basketball team,” she told me. Nick was born on June 26, 1973, in Elizabethtown, a small city about forty miles from Louisville. “When Nick was three,” DeVries told me, “we were at the grocery store one day and he asked me to hand him a box of cereal, which wasn’t Apple Jacks, his favorite. I asked him why. He said, ‘Well, Mom, I want to read if the surprise comes in the box or whether you have to mail away for it.’ That’s how precocious he was.” His mother worked as a surgical nurse, and his father was an insurance agent. (They divorced when Nick was fifteen.) A much loved only child, Nick was raised to revere the Bluegrass State but also to excel on a bigger stage.
Schoolteachers pressed Nick’s parents to let him skip grades in grammar school, but they preferred to keep him with friends his own age. He went to St. Xavier High School, a leading Catholic school in Louisville, and he did so well that he was offered full scholarships at several local colleges. (While Nick was in college, his mother was remarried, to William DeVries, a heart surgeon best known for implanting the first artificial heart.) But instead of going to school at the home of his beloved Wildcats, or elsewhere in Kentucky, Marsh went to Williams College, in Massachusetts. He was an immediate hit in New England. At six feet, with dark-brown hair, he had the soft accent and proper manners of the border South, and a taste for mint juleps. “Nick definitely had the polite thing going on,” Victor Lopes, a classmate, recalled.
Marsh spent his junior year at Oxford, majored in philosophy, and hedged his bets on a career choice when he went to law school at Duke—where he also picked up a master’s in literature. After earning his law degree, in 1998, he took a clerkship with Andrew J. Kleinfeld, a federal appeals-court judge in Fairbanks, Alaska. Marsh thrived, despite the harsh weather, and he steered away from academia and into law practice. “We had a twenty-three-day stretch when it didn’t get above minus thirty, and it was dark all the time,” Rob Maguire, his co-clerk, said. “If you were prone to depression, you’d get it there. But Nick loved doing his job. He wore the kind of charcoal pinstripe suit that you don’t see in the West. He collected fountain pens. You could just see that this was a guy who was headed for the big time of New York or Washington.”
After his clerkship, Marsh moved to New York and joined the firm of Sullivan & Cromwell, where he endured the frustrations common to junior lawyers at big firms. “Rote work, endless days reviewing documents—Nick longed for greater individual responsibility,” his friend Josh Waxman, a colleague at the time, said. Three years later, Marsh joined the New York outpost of another large firm, which was then known as Hale & Dorr. Even though he quickly made junior partner, he sought work of larger meaning. A friend, Joshua Berman, had joined the Public Integrity Section, at the Justice Department, and Marsh sent him his résumé. “He so wanted to be a prosecutor and public servant, and left pretty soon after becoming a partner,” Berman said. This was around the time, his mother recalled, that Marsh decided that someday he wanted to be a judge.
The Public Integrity Section had about thirty lawyers, and Marsh flourished from his first day. “Nick was one of a couple of attorneys starting in the fall of 2003, and just showed tremendous promise as a prosecutor right away,” Ray Hulser said. “Typically, our people work at the grand-jury and trial level, but the smartest folks are the ones who do the court-of-appeals work as well. It’s sought-after work. He ended up arguing three cases in the circuit courts in his first year. That’s uncommon. And he won them all, too.” Marsh was sent to New Hampshire, for his first major trial, where he won a conviction against a Republican official who concocted a scheme to jam the phone lines of a Democratic get-out-the-vote operation in the 2002 election. (Because of a legal error by the judge, the conviction was later overturned.)
Marsh had been a federal prosecutor for only about a year when he was sent to Alaska on what became the Stevens investigation. The work was so secret and sensitive that he never contacted Judge Kleinfeld, for whom he had clerked, during his time in the state. On July 30, 2007, investigators obtained a warrant to search Stevens’s home, in Girdwood, on Alaska’s Pacific coast. A year later, a grand jury in Washington, D.C., indicted Stevens on seven felony counts of filing false financial disclosures. (Senators are required to disclose their income every year.) Stevens was charged with failing to disclose “things of value” that Bill Allen and his company, Veco, had provided to him.
The case against Stevens was dubious from the outset. He was not charged with bribery; there was no allegation that he provided any quid pro quo to Veco, even though the company was receiving more than a hundred and seventy million dollars a year in federal contracts. (Veco is now defunct.) Moreover, the worth of the “things of value” was not easily determined. In what became the heart of the case, the indictment claimed that Stevens failed to report that he had accepted “more than $250,000 in free labor, materials, and other things of value in connection with the substantial renovation, improvement, repair and maintenance” of his Girdwood home. But the indictment went on to say that Stevens had paid Veco for the renovations—just not enough to cover the true costs. For a senator renowned for controlling many billions of dollars of federal appropriations, the numbers in the case against him were rather small. And the Girdwood house, an ungainly A-frame perched on a dirt road, was a ramshackle affair, even post-renovation.
In white-collar-crime prosecutions, defense attorneys invariably seek to delay the trials of their clients. Memories fade; passions cool; evidence gets lost. The conventional wisdom is that the passage of time makes conviction less likely. But Ted Stevens had other motivations besides simply winning an acquittal. Just four months after his indictment, he would be facing Alaska’s voters in his race for a seventh term, and he felt that he could win only if he had already beaten the case against him. So, in what must have been a major surprise to Marsh and his colleagues, Brendan Sullivan announced that he would demand a trial within seventy days of the indictment. This bold move by the defense had serious ramifications for the prosecution.
Although Marsh and Joseph Bottini, an Assistant U.S. Attorney in Alaska, had largely built the case, senior officials in the Justice Department decided that the trial team would be led by another lawyer—Brenda Morris, the principal deputy chief of the Public Integrity Section, who had been a prosecutor with the government since 1991. Morris is African-American, a fact that probably was not incidental in a case against a senior Republican in the District of Columbia. But Morris had only a short time to master the byzantine facts of the case and prepare for trial. With Bottini in Alaska, Marsh had to become Morris’s tutor on the facts. That wasn’t easy, either, because on May 24, 2008, Marsh had married Navis Bermudez, a congressional staffer on environmental issues, and gone on a two-week honeymoon in Turkey, returning shortly before the grand jury issued its indictment. Marsh’s absence tightened an already rigorous schedule for the government.
The Stevens defense team filed a series of pretrial motions, which the prosecution had to respond to while also preparing for trial. In one, the defense asked that the trial be moved to Alaska, since most of the underlying events had taken place there, though the disclosure forms were filed in Washington. Both sides knew that Stevens would likely find a more sympathetic jury in his home state than in Washington. Marsh argued the issue against Brendan Sullivan, and Judge Sullivan decided to keep the trial in the District of Columbia—a victory that Marsh savored.
In many respects, though, the most contentious pretrial issue involved discovery—that is, the government’s obligation to turn over its evidence to the defense. Some prosecutors adopt what’s known as “open file” discovery, where they simply open all their files to the defense; in contrast, the Stevens prosecutors responded to the defense requests issue by issue, granting some and refusing others. The draining and time-consuming disputes about discovery, in an investigation that had generated thousands of documents and hundreds of hours of surveillance tapes, occupied much of the prosecutors’ time.
The trial, scheduled to begin in late September, started on a sour note for Marsh. On September 12th, he e-mailed a friend, “Yesterday, the front office issued another fiat concerning the assignments for roles in the TS trial. Less than 2 weeks before trial, they countermanded my chief’s staffing decision (which gave me a lot of responsibility, a lot of witnesses, the biggest cross, and the closing) and took away most of my responsibilities to give to Brenda. I now have 1/3 of the directs, 1/4 of the crosses, and no argument.” This slight could have proved a blessing of sorts, because, once the trial started, Judge Sullivan found a great deal of fault with the prosecutors who were running the case.
In one matter, the prosecution introduced time sheets compiled by Veco of work done on the Girdwood house which turned out to be inaccurate; the records included workers who were not present in the area at the time. (Judge Sullivan excluded part of the records.) In another, both the prosecution and the defense had subpoenaed a witness named Rocky Williams, a Veco employee who had worked on the house. The government brought Williams to Washington to testify, but decided against using him, in part because he was in bad health, and sent him back to Alaska without telling the defense or the Judge. Brendan Sullivan claimed that the government was hiding Williams to prevent him from giving testimony helpful to the defense. Even though Marsh was not the lead counsel, Judge Sullivan scolded him in open court for the way he handled Williams. “I’m flabbergasted why you’d do this,” the Judge said. “Why wasn’t I consulted? I’m peeved now. It’s a federal subpoena to appear in my court.” (Williams died a few months after returning to Alaska.)
Most of these contretemps involved, in one way or another, discovery issues first raised in Brady v. Maryland, the 1963 Supreme Court case that established the principle that prosecutors have an obligation to produce exculpatory information and provide it to the defense. “The prosecution has an affirmative obligation to look through the files of everyone involved on its team to find whether there is any possible evidence that suggests that the defendant is not guilty or that there are credibility problems with the prosecution’s witnesses,” Stephen Trott, a federal appeals-court judge and former prosecutor who has lectured widely on prosecutorial ethics, told me.
Brady is one area of law that has become more pro-defendant in recent years, with prosecutors obligated to do more to ferret out exculpatory evidence. This change has transformed the way cases are both defended and prosecuted. “Defense attorneys have been waking up to the idea that the best defense is a good offense,” Trott said. “Instead of only worrying about whether there’s evidence to convict beyond a reasonable doubt, they focus on whether the government has complied with its duty to disclose. They think, How can I use Brady to knock the prosecutor and the government out. There’s a lot of animosity out there.”
No one has made this tactic more of a signature than Brendan Sullivan, who has long worked at the Washington firm of Williams & Connolly. Sullivan remains best known for his defense, in the nineteen-eighties, of Oliver North in the Iran-Contra scandal, in which he famously told the investigating congressional committee that he was not “a potted plant.” (I first met Sullivan when I was a junior member of the prosecution team in North’s criminal case; North was convicted of three counts, which were later overturned by an appeals court.) During the Stevens trial, Sullivan often mentioned a case that he had won in 1986, when charges against a corporate executive in Maryland were dismissed on the ground that the government had fabricated and altered documents turned over in discovery. This was the kind of misconduct that Sullivan was looking for in the Stevens case, especially when it came to the prosecution’s handling of its star witness, Bill Allen.
Coöperating witnesses like Allen—who are also known as snitches, turncoats, flippers, and a variety of more colorful terms—present daunting ethical problems for prosecutors. “Bad guys nowadays realize that the best way to get out of trouble is not to hire a great lawyer but to cut a deal,” Trott said. “But they want to minimize what they do. They gild the lily. They are trying to get something by making themselves look better than they are. Prosecutors think they’ll get a better deal if they get convictions in the cases where coöperators testify. They are motivated by terrible things. Young prosecutors aren’t even close to being ready for this stuff. These coöperators are sociopaths.”
In planning his cross-examination of Allen, Sullivan had one important asset: a note that Stevens had written to Allen while the renovations were under way. “Dear Bill,” Stevens wrote. “Thanks for all the work on the chalet. You owe me a bill—remember Torricelli, my friend. Friendship is one thing—compliance with these ethics rules entirely different. I asked Bob P to talk to you about this so don’t get P.O.’d at him—it just has to be done right.” Bob Persons was a friend of Stevens’s; Robert Torricelli was a New Jersey senator who had recently been forced out of office for accepting gifts from constituents. Sullivan built his defense around the Torricelli note. In his opening statement, Sullivan had said that the note “jumps off the page and grabs you by the throat to show you what the intent of Ted Stevens was.”
But Sullivan received a surprise during Allen’s direct testimony, which included the following exchange:
Q: Did you send Senator Stevens a bill or an invoice after you received this note from him?
A: No.
Q: Mr. Allen, do you remember having a conversation with Mr. Persons after you got the note from Senator Stevens?
A: Yes.
Q: What did Mr. Persons tell you?
A: He said oh, Bill, don’t worry about getting a bill. He said, Ted is just covering his ass.
This testimony turned Stevens’s best evidence against him. It seemed to show that the Torricelli note was actually part of Stevens’s cover-up rather than proof of his innocence. In cross-examination, Sullivan did his best to prove that the cover-his-ass testimony was just a recent fabrication on the part of Allen, but the jury apparently believed otherwise, and convicted Stevens on all counts.
Marsh and his colleagues did not have long to enjoy their triumph. In early December, five weeks after the verdict, in the waning days of the Bush Administration, Chad Joy, an F.B.I. agent involved in the case, filed a formal complaint against a fellow-agent, Mary Beth Kepner, and several prosecutors, saying that Kepner had behaved inappropriately during the investigation. He alleged that Kepner had had a flirtatious relationship with Bill Allen, suggesting that, as “a surprise/present,” she had worn revealing clothes when Allen testified in court. More important, Joy said that the prosecutors had conspired to withhold exculpatory evidence. In particular, Joy said that even though Rocky Williams had been subpoenaed by both sides, Marsh sent him home to Alaska because he had fared poorly on a mock cross-examination, not because he was sick.
Judge Sullivan, who was already irritated with the prosecutors for their performance during the trial, was now outraged. He ordered them to turn over all internal communications regarding Joy’s allegations, and, on February 13, 2009, when they were slow to respond, he found four of them in contempt of court—an extraordinary sanction to impose on federal government lawyers, and one that could, in theory, result in jail time. The four cited were Morris; William Welch, the chief of the Public Integrity Section; Patty Stemler, an appeals specialist; and Kevin Driscoll, a trial lawyer who had just joined the prosecution team. (The Judge did not sanction Marsh, who was not involved with researching the Joy allegations.) The prosecution was a shambles, and Stevens hadn’t even been sentenced yet. Superiors in the Justice Department decided to bring in a whole new team to try to salvage the conviction. After four years of work, Marsh had been thrown off the case of his life.
In four decades as a criminal-defense attorney, Brendan Sullivan had never had a prosecutor request permission to visit him in his office. (Customarily, the defense goes to the government’s turf.) But on March 24, 2009, Paul O’Brien, the new Justice Department prosecutor assigned to the Stevens case, asked to pay a call on Sullivan and his partner Rob Cary, who was co-counsel throughout the Stevens case, at the offices of Williams & Connolly. O’Brien said that the new team had scoured all the records in the case and found something that had not been disclosed before: an undocumented interview with Bill Allen.
The session with Allen contained a bombshell. Stevens’s lawyers had turned over the Torricelli note to the prosecution early in April, 2008, and the government lawyers brought Allen in to talk about it on April 15th. For the meeting, Allen was in Alaska with Bottini and James Goeke, another local Assistant U.S. Attorney, and an F.B.I. agent; Marsh and Edward Sullivan (also no relation), a junior member of the team, were on a speakerphone in Washington. In the interview, Allen said that he remembered receiving the Torricelli note but did not recall speaking to Persons about it. Allen had not mentioned Persons’s purportedly telling him that Stevens was “covering his ass”—which became the most important evidence in the trial. This previously undisclosed interview with Allen prompted O’Brien’s visit to Brendan Sullivan’s office. Evidence of Allen’s initial failure to come up with the covering-his-ass story should have been turned over to the defense months earlier. The interview strongly supported the theme of Brendan Sullivan’s cross-examination of Allen—that the witness had fabricated the conversation with Persons.
Sullivan made an appointment for 10 A.M. on April 1st to visit O’Brien and argue that the newly disclosed information required the government to dismiss the case against Stevens. An hour before the meeting, O’Brien called Sullivan and told him that the meeting would not be necessary. Attorney General Holder had decided to drop the case. Six days later, Judge Sullivan brought the parties before him to make the end of the case official—and to excoriate Marsh and his colleagues. “In nearly twenty-five years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” Judge Sullivan said. “Again and again, both during and after the trial in this case, the Government was caught making false representations and not meeting its discovery obligations. And each time those false representations or unmet obligations came to light, the Government claimed that it had simply made a good-faith mistake, that there was no ill intent.”
O’Brien had told the Judge that the Office of Professional Responsibility (O.P.R.) was investigating the behavior of the trial team in the Stevens case, but that was not enough for him. At the end of his remarks, Judge Sullivan said, “The Court shall commence criminal contempt proceedings against the original prosecution team, including William Welch, Brenda Morris, Joseph Bottini, Nicholas Marsh, James Goeke and Edward Sullivan.” He went on to say that “the interest of justice requires the appointment of a non-government disinterested attorney to prosecute the matter” and named Henry F. Schuelke III, a Washington lawyer, to do so.
Ted Stevens dominated the brief marriage of Nick Marsh and Navis Bermudez. They had met in Washington in 2005. A New Orleans native, Bermudez had gone to George Washington University, got a master’s in environmental studies at Yale, and spent several years working for an environmental organization before moving to the staff of a congressional committee. With short black hair and a trim physique, she could have passed for Marsh’s sister. “We knew what our kids would look like,” Bermudez told me.
After moving to Washington, Marsh bought a bungalow in Takoma Park, near the D.C. border with Maryland. It wasn’t until shortly before their wedding, in 2008, that Marsh told her that the Alaska investigation led to Stevens. His frequent-flier miles took them to Argentina twice and on their honeymoon in Turkey. “He was really passionate about the work he did at Public Integrity. He left a lot of money behind to do it,” she told me. “He felt very strongly about public-corruption cases—that people shouldn’t be doing anything illegal on the public dime.”
According to Bermudez, the Stevens case presented less than ideal working conditions for Marsh. “He was not happy about Brenda Morris being brought in,” she said. “It was hard for him, because he put so much time in it. There was a lot of talk about who was going to be allowed to do what, a difficult situation. The morale of the team was not great.” Now, with the appointment of a criminal prosecutor, Marsh had to hire his own defense attorney. (The Justice Department provided a stipend for legal fees.) Marsh chose Robert Luskin, an experienced Washington hand best known for his representation of Karl Rove during the Valerie Plame investigation.
The divisions within the Stevens trial team deepened when Marsh and Edward Sullivan were transferred out of the Public Integrity Section, in June, 2009. Marsh wrote in an e-mail to a group of friends, “As you all know I’ve been exiled from the public integrity section to the criminal division of the office of international affairs.” In his new role, Marsh would no longer appear in court as a criminal prosecutor. “He saw anything that ended with him not being a prosecutor as apocalyptically bad,” Luskin said.
What’s more, Morris and Welch, the senior people in the Stevens investigation, did not receive, in Marsh’s mind, equal punishment. Morris moved to Atlanta, and Welch went to his home town of Springfield, Massachusetts, but both worked in U.S. Attorney’s offices and remained prosecutors. “It was upsetting that Brenda and Bill were treated differently,” Bermudez said. Luskin told me, “The most junior guys, Nick and Sullivan, got moved. Nick clearly felt scapegoated, and it’s hard to escape the conclusion that that is exactly what happened.” (Citing Justice Department policy on the confidentiality of personnel decisions, officials declined to comment on the transfers, as did Welch. Morris could not be reached.)
As it happened, at the Office of International Affairs Marsh was made the Justice Department’s primary point of contact with Switzerland, which meant that he was thrust unexpectedly into another high-profile assignment, the attempted extradition of Roman Polanski. The assignment drew some media interest; “FORMER PROSECUTOR OF TED STEVENS PURSUED POLANSKI” was the headline of a Times story on September 29, 2009. “Nick’s whole attitude about O.I.A. was that at least he could just do his work and keep his head down,” Bermudez said. “And then the Times picked it up. He was, like, are you kidding me?” According to his friend Josh Waxman, “That Times story made Nick feel like he would never get Stevens behind him.”
The peculiar political crosscurrents of the late Bush Administration contributed to the disastrous course of the Stevens prosecution. The decision to indict Stevens was made after Alberto Gonzales had to step down as Attorney General, largely because of his role in forcing out several U.S. Attorneys for insufficient fealty to Republican political goals. Michael Mukasey, the new Attorney General, took office pledging to rid the Justice Department of political influence. It fell to Mukasey and his team to decide whether to indict a senior Republican senator. In practice, that meant Mukasey was more or less obligated to defer to the judgments of career prosecutors like Marsh. If the leaders of the Justice Department had been more politically secure, they might have asked harder questions about whether the facts justified the criminal charges against Stevens. And they might have done everyone a favor by stopping the case before it began.
But the flawed case did proceed, and the prosecutors compounded its problems by failing to disclose sufficient evidence to the defense. And so, in the light of the two pending investigations, Marsh had to start answering questions that he was used to asking: What did he know, and when did he know it? This was difficult—practically and psychologically. “The Balkanized responsibility for preparing the case was a real problem,” Luskin told me. “It was true that the ‘government’ had knowledge of certain facts and interviews, but no one individual knew all the pieces of information.” Conducting an investigation from four thousand miles away also took its toll.
For months, Luskin heard nothing from Schuelke or from the O.P.R. investigators, but eventually both made arrangements to interview Marsh. Afterward, Schuelke told Luskin that he was most interested in Marsh’s behavior in three areas. On March 31, 2010, in a letter to Schuelke, Luskin addressed the three areas. First, he acknowledged that the government should have turned over Allen’s April 15, 2008, statement about the Torricelli note, but he explained that this decision was not Marsh’s responsibility. Marsh did not prepare Allen for his trial testimony or put him on the stand. Second, regarding Rocky Williams, he, too, was not Marsh’s witness, and his role in telling the defense about Williams’s planned testimony was minor. The final issue involved the non-disclosure to the defense of a statement made by a former girlfriend of Bill Allen’s. Marsh had made this decision, but only after consulting with the Justice Department’s Professional Responsibility Advisory Office, which exists to advise line attorneys about their ethical obligations. “We were confident that Nick had good answers on all the areas of concern,” Luskin told me. It seemed extremely unlikely that Schuelke would have sought any criminal prosecution of Marsh.
But more months passed, and there was no further word from the O.P.R. or from Schuelke. Marsh sent contradictory signals about how he was handling the wait. “Nick was very frustrated by the pace of the investigation,” Josh Waxman said. “Someone like him, who had done everything on the straight and narrow, ethical to a T—to have to wait and sit back to hope that his name would be cleared, that really wore on him.”
But Marsh also carried on with his job at the O.I.A., which included international travel, and made plans for the fall of 2010. The Washington Wizards basketball team had drafted John Wall, a celebrated rookie out of Kentucky, and Marsh bought a partial season ticket to their games. He obtained a DirecTV package to watch multiple N.F.L. contests. He purchased tickets to fly to a friend’s wedding in California, in October, and to go to a Duke basketball game, in New Jersey, in December. At the same time, friends worried about him. “Over the summer, I started carrying my cell phone with me at home,” Waxman said. “My wife thought I was crazy, but I wanted to be there for Nick in case he called.” Marsh was not seeing a therapist or taking medication.
Marsh regularly asked his attorneys to try to find out when the investigations might conclude. Luskin let him know that he thought there might be a decision after Labor Day. Bermudez and Marsh took their dog, Bourbon, a rescue from Louisiana, to Maine over the long weekend. “He seemed really happy,” she said. “All during that vacation, he had been given indications that he would be hearing something soon. He thought for sure it would be resolved the following week, then we’d have it behind us.” But, when Marsh returned, there was still no word. “ ‘They think it’ll be a few more weeks.’ We heard that over and over again,” Bermudez said.
In mid-September, Marsh took a weeklong business trip to Moldova and Portugal. Back in Washington on Thursday, September 23rd, he spoke to Waxman on the phone. “He was upset,” Waxman said. “The strain of the investigation was getting to him. He just didn’t know when he woke up every day that that was going to be the day that he was going to find out.” The next day, Friday, September 24th, Marsh again called Luskin for news. “Nick was just checking in, to see if there was any word from Schuelke,” Luskin said. As Bermudez recalled, “That Friday, Nick called me at work to say he had spoken to Luskin and we expect to hear something soon.”
The Marsh-Bermudez home in Takoma Park looks like a lot of places where young professionals live, with comfortable, mismatched furniture. Marsh’s pride was what he and his wife called his “man-cave,” a partly renovated basement where he could sprawl on a beat-up sofa and watch sports on a big-screen TV. (A washer and dryer occupied the other, unfinished third of the basement.) On Saturday morning, Marsh headed to the basement soon after he woke up. Around ten, Bermudez went down to encourage him to join her upstairs.
“Nick got really upset when I went to talk to him,” she recalled. “He said he was sorry he had ever taken the Stevens case. He was sorry that he had brought all this trouble into our lives, sorry that he had ruined our lives. I told him that his family and friends knew that he would never do anything wrong, that we all loved him, and that he should look to the future. He was really down but seemed like he’d be over it in a day or two.” After their talk, Bermudez went out to do some errands. When she returned, Marsh was asleep in their bed. When she roused him, he went back to the basement to watch more TV.
The pattern repeated itself on Sunday. Marsh woke up and went downstairs to the basement. At around three in the afternoon, Bermudez went to check on him, but he wasn’t in front of the television. He had hanged himself near the washer and dryer. There was no note.
Bermudez still lives in the home she shared with Marsh, and his voice still greets callers on the answering machine. “I don’t think I understood the depths of how the allegations affected him,” she told me. “He took his duties and his ethical obligations very much to heart. Even thinking that his career would be over was just too much for him. The idea that someone thought he did something wrong was just too much to bear.”
Twenty months have passed since Judge Sullivan assigned Henry Schuelke to conduct the investigation of the Stevens prosecution. Schuelke has declined to comment on or provide any explanation for the extraordinary delay in producing his findings. The O.P.R. has circulated a draft report that concluded that Marsh and others committed professional misconduct, but the degree of misconduct, and the remedy for it, are unspecified; moreover, lawyers for the prosecutors are contesting the O.P.R.’s tentative version of what happened.
The long investigation obviously took a terrible emotional toll on Marsh. But the errors that he and his colleagues made caused real and lasting damage to Ted Stevens, and to his family as well. Marsh and his colleagues took an important but fairly routine political corruption investigation in Alaska and tried to leverage it into a prosecution of one of the leading political figures in the country. In doing so, they failed themselves and the Justice Department.
More than seven hundred people attended Marsh’s funeral, at the First Baptist Church, in Washington. Senior Justice Department officials praised him to his surviving family members. Karen Loeffler, the U.S. Attorney in Alaska, travelled to Washington for the funeral, and later announced that her office had created the Nicholas A. Marsh award, to go to a non-Alaskan who makes the greatest contribution to justice in the state each year. Although Marsh’s reputation had suffered a severe and largely deserved fall for his actions in the Stevens case, skilled lawyers have rallied from far worse professional disasters. There is every reason to believe that he would have gone on to a distinguished career, and perhaps even to the judgeship he sought. But something in Marsh could not let the official system for discipline play out, and instead he imposed an unfathomably harsh punishment on himself. ♦
