The not knowing made the holidays extremely stressful for the defendants and their families. But finally, on January 7, 2008, Judge Werlein denied Spencer’s motion to remand Jim into custody. He punted the case back to the Fifth Circuit, to ask them if it would be double jeopardy to try them again on the same indictment.
Finally, the defense received the Brady material of the raw notes of the interviews of Andrew Fastow. In them were astonishing revelations that clarified why the prosecutors fought so hard to keep them away from the defense attorneys.
Fastow had told the government very clearly that there was no guarantee in the Barge deal. He had simply told the Enron folks that there was to light a fire under them to remarket the barges. But the government used these Enron people who thought it was a guarantee to testify in the trial, knowing they had been misinformed by Fastow intentionally. This shows that the government doesn’t care if people are innocent. If they think they can win something, they will still create a case to charge you with.
More Brady material kept from the defense: Jeff McMahon, the Enron Treasurer and President, had written to the DOJ and SEC stating that he had never made a guarantee in the Barge case. Even more shocking was that McMahon had told the Task Force that he had reviewed Ben Glisan’s testimony in the Barge trial, and that he had lied about McMahon having made a guarantee. This was Brady material that the government is constitutionally required to produce. Their failure to do so raised a question—whether the Task Force had knowingly induced perjury.
The government had been told by one of the people they never indicted, that there never was a guarantee. They concealed that crucial fact while 4 innocent people went to prison. They hid the Fastow notes that corroborated that information. And then they vehemently opposed release pending appeal and told two courts there was “no substantial issue for appeal.”
But these revelations didn’t seem to matter to the DOJ. Matthew Friedrich got promoted to acting Assistant Attorney General for the Criminal Division. No one seemed to notice or care that Friedrich had played a significant role in causing the errors while wasting millions of taxpayer dollars and causing substantial harm to countless people. No one was paying any attention to the fact that these prosecutors had hidden evidence from the defense.
It probably didn’t hurt Friedrich that he was married to Dabney Langhorne, assistant US attorney in the Eastern District of Virginia, from the wealthy and politically powerful Langhorne-Astor families. She was associate counsel in the White House from 2003-2006. She was appointed to the Sentencing Commission in 2006, reappointed by President Obama in 2010.
Friedrich brought in Rita Glavin to be his deputy. This was ironic because she began her career in the Public Integrity Section. But only 10 years into her career, she was second in command. There was no adult supervision of the new command of the criminal division.
Friedrich and Glavin got busy in the Public Integrity Section (PIN) and their investigation of public corruption cases in Alaska. Several convictions had already taken place at the hand of PIN attorney Nicholas Marsh. They became especially interested in the indictment of US Senator Ted Stevens. Senator Stevens was a heavily decorated World War II pilot, a legend and a hero to most Alaskans. He was a senator for 40 years, and had helped build Alaska.
A meeting of Friedrich, Glavin, Alaska Assistant US Attorneys Joseph Bottini and James Goeke, PIN Deputy Chief Brenda Morris, PIN Chief Bill Welch, and PIN trial attorneys Nick Marsh and Edward Sullivan took place on July 14 to discuss the case against Senator Stevens. Marsh’s casual presentation of the case negatively impressed Friedrich and Glavin. He was replaced as trial lawyer two days before the trial by Morris, who didn’t want the assignment. It was too late to change roles, and was terrible for morale. Two days later Friedrich read the charges against Stevens to the media.
Senator Stevens was defended by Brendan Sullivan and Rob Cary of Williams & Connolly in DC. They demanded a speedy trial—before the November 4th election. The judge assigned was Emmet Sullivan. Judge Sullivan cared about justice and legal ethics. He had no tolerance for criminals, but had great respect for the rule of law. He expected those entrusted with the power of the sovereign to be correct on the law and the facts when they threatened someone’s life and liberty.
In an earlier case, Berger, the Supreme Court set the standard for the conduct of US attorneys:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Judge Sullivan believed that all lawyers should practice by that code—especially federal prosecutors whose only real job was to see justice in the highest sense.
The charges against Senator Stevens were for gifts he received from a builder remodeling his house. The prosecution said he failed to report the true value of the gifts as required by senate ethics rules, and that they were really bribes. But they didn’t charge him with bribery. They, as in the Enron cases, charged him with offenses they couldn’t prove, depending on the jury to find him guilty simply because he was charged with something that just “smelled bad”.
Throughout the trial, the defense caught the prosecution in one “mistake” after another. Judge Sullivan got boiling mad. In spite of everything, the jury returned a guilty verdict. The prosecution gloated. Friedrich had orchestrated another conviction, and no one would ever know.
So this shows that government prosecutors have no problem with breaking the law to convict an innocent person. And when the high level prosecutors do it, that sends a message down the chain of US Attorneys that it is okay for them to do it as well—that’s the way to get promoted in the ranks. Win the case. Show your power by putting an innocent person in prison. And the higher in prominence that innocent person is, the more prestige there will be when you win.
My entire case was fabricated by the prosecution. From the lies on the search warrant to gain access to my office, to the perjury before the grand jury by the DEA agent, to the actual breaking of the law to call a prescription in in my name for a wired informant, to the forced perjury of Dr. Schultz and attempted forced perjury of my nurse. It was all pure fabrication. For what purpose? I think this chapter shows that there doesn’t really have to be a purpose anymore. It’s just the way things are done now. Can we trust any prosecution of any American anymore? I don’t think so. I don’t think I could even believe bloody fingerprints on the murder weapon if I was a juror.
There simply are no morals in our government figures any more. We can’t trust them to do anything that is right or just. How do we fix this? I don’t have a clue. In my opinion, it is the beginning of the end for our country. History repeats itself. In all great powers—Egypt, Persia, Rome, and Greece—the government was brought down by their own greed and immorality. I personally think America is heading down the same track. If anyone has a solution, please send it to me.