Chapter 14: Another Try
Ms. Powell received denials on their motions of double jeopardy for Brown and their petition for writ of certiorari to the Supreme Court. So they were looking at going to trial again for the same indictment. She then reached out to Deputy Solicitor General Michael Dreeben in hopes of him considering the prosecutorial misconduct as grounds for dismissal but he refused. Then she tried to get a Supreme Court rehearing, since they had already reversed 3 similar cases.
The fallout from the Stevens case created negative publicity. But it did not appear that Holder was going to keep his word of cleaning up the DOJ. Attorney General Ogden issued a formal memorandum before he left, for prosecutors to review files and turn over any Brady material to the defense. But it did not provide any enforcement mechanism or deadlines for production. It was not enforceable by the defense, and it still allowed prosecutors to decide how important the evidence might be to the defense, so they could still hide it.
On Jan 8, 2010, the government dismissed all counts against Dan Bayly. So how could they continue to prosecute Brown, when he wasn’t even involved in the agreement that Bayly was accused of making with Fastow?
At this same time, Kathryn Ruemmler moved from her position as the Attorney General’s deputy over to become deputy White House counsel. Then the Supreme Court denied the rehearing petition.
Meanwhile, Hank Schuelke was drilling deeper into the bunkers of bureaucracy in the Justice Department in his investigation of the Stevens case.
On March 1, 2010, Ms. Powell attended the Skilling argument before the Supreme Court. Then a week later, Furst was offered a “deferred prosecution agreement”. That meant that as long as Furst doesn’t commit another crime for one year, all charges would be dropped. Also, Brown’s case had long passed the requirement of the Speedy Trial Act. Under the act, the government is to bring a defendant to trial within seventy days. It had been over seven months. Someone had to do something.
Chapter 15: The Big Oops
In late March 2010, the Brown defense got a letter from the third team of Barge case prosecutors with a small package containing a disk of witness statements, notes, and grand jury transcripts which formed the basis of the government’s 2004 disclosure letter.
Pressuring Stokes for dismissing the indictment, they were called in to a hearing before Judge Werlein. They thought that the hearing would be a clean way for Judge Werlein to wash his hands of the retrial. Instead, they met with hostility. The Judge didn’t even mention their Speedy Trial Motion, obviously denying it by his action regardless of the law. Through the course of the hearing it became obvious that the Judge was covering up something for the government. Trying to pressure the defense into agreeing to things not in Brown’s best interest, the judge began to threaten Brown with continuing his prison sentence from the previous trial. Ms. Powell stood up to the judge, but nothing changed. The trial date was set, but at least they had that.
A month later the deferred prosecution agreement with Furst was agreed on.
As they prepared for trial, they looked at the disk Stokes had provided and made an astonishing discovery. There was yellow highlighting on some of the documents. The highlighting was the government’s own identification of Brady material—marked for Judge Werlein to review, but defense never received. In this material was the interview of former Enron treasurer, Jeff McMahon, and it was totally exculpatory. Many of the statements directly contradicted the prosecutors’ entire case. Now it was clear why the task force had threatened McMahon so intensively, keeping him in fear of indictment, to keep him from testifying. It was also obvious now why he was never indicted for making the alleged guarantee for which the four Merrill executives were convicted.
Ms. Powell knew something was very wrong in this case. They had worked way too hard to make something a crime that wasn’t, and fought against producing the real documents. This was cold, hard evidence that the government knew exactly what they were doing—and deliberately hid the evidence from the defense. This misconduct and Brady violation was even clearer than in Stevens—and four men had gone to prison because of it.
In this chapter the long awaited Brady information was finally received by the defense, after 3 prosecutor groups had kept it secret. It showed, beyond a shadow of a doubt that Brown was innocent of committing any crime. So why was he prosecuted?
Overaggressive prosecutors is the rule now in the DOJ rather than the exception. Everyone knows that in order to advance in their career, they have to behave illegally. This is a basic movement, in my opinion, throughout the government. This is why we, the people, need to clean house in Washington. We can’t depend on Trump to do it. We failed to do it in this past election, with only 11 new legislators voted in, and most incumbents winning 60-70% of the votes. We need to start now with our representatives, informing them of the truth, and if they don’t work for us, in the next election they need to be fired.
That is why all of the chronic pain community—doctors and patients—need to start communicating (if you aren’t already) with your legislators now. Tell them about the REAL cause of drug abuse, and that they need to stop the attacks on doctors and patients. Then, if they don’t, fire them.