now, tell us what you mean by that, especially how would the -- how would the trial have been different if the prosecutors had disclose this had information? >> i think senator leahy, that i first should describe at least briefly the allegations made in the indictment against senator stevens and the essence of his defense. senator stevens and his wife catherine in addition to their home here in washington owned a small cabin in the community of girdwood, alaska. it was a rustic cabin which was quite agreeable to senator stevens who liked to go fishing outside of girdwood, sit on the porch of an evening, put his

feet up and perhaps smoke a cigar. not so mrs. stevens. or their children or their grandchildren who found the cabin to be in need of impro improveme improvement. and so in 1999, senator stevens resolved that he would do some kind of a renovation to the cabin which he jokingly called the chalet. he was a friend of a gentleman whose name is bill allen, a self-made entrepreneur who by 1999 had become quite wealthy and he was the ceo of an oil field services and construction company.

he was a fishing buddy from time to time of senator stevens, as well. he was conversant with the construction industry to some degree and heat was available i anchorage alaska in terms ofs. senator stevens and he met in 1999 in the company of a gentleman whose name was rocky williams who was a veco employee, the name of bill allen's corporation. senator stevens told him that he wanted to do a renovation to the so-called chalet. he wanted allen's assistance in identifying a remodeling contractor who might do the bulk of the work, and he was interested in having bill allen through a couple of his employees assist as might be

appropriate in the renovation of the chalet. >> mr. shul can i, i don't want to cut in, but i'm trying to keep peace with the senators to a certain amount of time. i do want you to get to the point where on my basic question, how would the trial have been different if the exculpatory information had been released. >> all right. one principal example, senator, i told you who rocky williams was. rocky williams in effect served as the on-site foreman of the job. the job was performed for the most part by a firm called christianson builders. the stevens mortgaged their home in washington for $100,000, liquidated a trust for another $10,000 and spent -- for another $50,000 rather, and spent an

additional $10,000 from savings. so they paid christianson builders and a couple of its subcontractors $160,000. for the cabin which was appraised to be worth after the renovations $152,000. senator stevens and his wife catherine stevens testified during senator stevens trial that it was their understanding that whatever work allen's company had provided on the house had been included in the christianson builders' invoices. which they paid in full. that testimony of both senator stevens and mrs. stevens was

ridiculed by the prosecutors both in cross-examination of each of them and in their summations. rocky williams was interviewed by two of the prosecutors messers bow tinny and goeke in the company of fbi agent chad joy one month before the trial commenced here in washington. on the morning that he was interviewed, another of the prosecutors edward sullivan, sent an e-mail to the group of prosecutors which said we got some additional dproumts senator stevens' defense council. it's apparent from those documents that will senator stevens and mrs. stevens will testify that they thought that all of the veco charges were included in the christianson builders' bills. and if catherine ste d they wil squeeze that out of rocky on cross-examination.

e-mail was circulated, messers bottini and gek can i interviewed rocky. they didn't have to squeeze that out of rocky. rocky told them that well back in 1999, i met with senator stevens and with bill allen. senator stevens wanted us to arrange to find a contractor. he wanted to pay for everything. make sure that this was done right. and so it was my understanding as the foreman on the job that my time as a veco employee, dav employee and anybody else who worked on the job from veco would be christianson builders invoices. and so every month he told them, i wendt and got the christianson builders invoice. i checked it to make sure it was

accurate based on my observations of what their people did. then i took it to the front office at veco to give to bill allen or his secretary if he wasn't there so that my time, that of dave anderson and othero the christianson builders bills before they were sent to the stevens for payment. that was rocky williams account. that was his understanding. his understanding was all together consistent with that of senator and mrs. stevens. had rocky williams testified as a government witness as the plan was originally, that's what he would have testified to. >> that would have made a difference in the trial? >> first of all, i believe that that anticipated testimony from rocky williams directly corroborated senator stevens'

defense. i believe that it may well have affected the outcome of the trial. >> and so this is a fairly serious, well, it is a serious allegation. did you provide the report the subjects of your investigation before it was finalized in order to allow them to do any rebuttal on that? judge sullivan in november of last year ordered that i report be made available to the subjects of our investigation and it was. in his order -- i beg your pardon, senator. >> go ahead. >> in his order of november of last year, he expressly provided the opportunity for each of them to submit comments and objections. >> and did they?

>> a couple did. a couple did not. >> okay. >> subsequently. >> did that in any way change your -- their comments in any way change your report? >> it did not. >> thank you. i should add subsequently, in february of this year, when judge sullivan ordered that the report be made public on march 15th, he provided the subjects yet another opportunity to submit comments and objections, which each of them did and he ordered that i append those comments to our report, which i did. >> but okay. it wasn't given to them though before your report first went to the judge? >> that's correct. >> and i understand that attorneys for mr. bottini, the assistant u.s. attorney handling the case in alaska said the

press's supervisor on seven separate occasions voluntarily release information regarding perjury by bill allen who was a key government witness who said in the other line, prosecutor in alaska mr. goeke, that he claims they moved to disclose that, but your report says that mr. bottini and mr. goc kill intentionally withheld this information and d get it disclosed. so which is which is it? did they attempt to get their supervisors to disclose information by bill allen, or are they not being truthful when they say on these numerous

occasions they asked to have it? >> as our report indicates in great some would say excruciating detail, messers bottini and geoke on a number of occasions proposed, indeed urged the rest of the prosecution team that some disclosure be made about evidence which was in their possession indicating that their star witness, bill allen, had sub born a false statement from a young woman who was a crack addicted prostitute with whom she claimed to have had sex when she was 15 years old. >> and this exculpatory information was not made

available? >> it was not. >> thank you. senator grassley. >> your report states "were there a clear specific and unquiv cal order of the court which commanded the disclosure of this information we're satisfied that a criminal contempt prosecution would lie." ultimately, your report concluded that no such order existed for brady or giglio obligations. however, your report states that at a september 10th, '08 motion hearing, the court "unquote admonished the government to follow the law meaning brady but that no order was issued that day as a result, despite the intentional and willful efforts to conceal this material, the prosecutors could not be criminally prosecuted. question the fact that judge sullivan did not issue an order on september 10th is arguably the seminal point of this matter because it prevents the

prosecutors from meeting the elements of a prosecution for criminal intent. had the court issued a formal order on september 10th instructing doj prosecutors to comply with brady and giglio, would you have recommended criminal contempt against the prosecutors? >> i would. >> notwithstanding this technical violation, do you believe they should face criminal penalties including jail time? >> that's not a judgment, senator grassley, for me to make. >> in the course of your investigation, were you able to determine what the intent of the prosecutors was during the september 10th motion hearings, did they -- well that's a question. but let me continue. let me start over again. in the course of your investigation, were you able to determine what the intent of the prosecutors was during the september 10th motion hearing it, did they intend to keep judge sullivan from issuing an order so that they would not be

subject to possible criminal contempt charges later? >> they did not. as a matter of fact, at one point during that colloquy on september the 10th, judge sullivan said so, what should i do, madame prosecutor? addressing brenda morris. should i issue an order that you produce any and all brady and giglio material? and the response was, if that's what the court wishes to do, the court may do so. the court, however, concluded that colloquy on september the 10th by saying, i am not going to issue an order. i will accept the professions of good faith on the part of the government. we all know the law. they tell me they know the law. there is no need for me to issue an order compelling them to comply with the law. hints to the wise should be

sufficient. >> as a result of this case and going forward, should all district judges issue formal orders to doj prosecutors instructing them to comply with brady and giglio in an effort to ensure compliance and secure the possibility of criminal contempt? >> well, senator grassley, that's one way to address the issue. i'm not satisfied that it is the best way to address the issue. you know, i say in the report during the discussion of whether or not judge sullivan had issued an order that no district judge ought to be required to order prosecutors to comply with their constitutional obligations. let alone be required to issue an order so specific that it might support a criminal contempt prosecution in

anticipation of its willful violation. that doesn't make any sense to me. it is true that around the country, at last count of which i'm aware, some 38 of the 94 districts have standing local rules which order the production of brady and giglio material pretrial. as a part of the overall discovery regimen. that's one way to address it. there are judges individually who have standing orders in every criminal case to the same effect. and indeed -- >> i think you've answered my question. let me go on to another question. >> yes, sir. >> okay. the stevens case was prosecuted by two attorneys. u.s. attorneys office alaska as well as two attorneys public integrity section main justice. in fact, the u.s. attorney's office was recused from the case

because of conflicts of interest. thus, the public integrity unit in the main justice was in charge of the case with the chief of the section and his principal deputy significantly involved. they were involved in the drafting of the indictment, they prepared memos for leadership of criminal division, and at the briefed the division's leadership on the progress of the case. numerous e-mails reinforce the fact that public integrity viewed themselves as the final authorities. indeed, shortly before the case was to be indicted, the front office of criminal justice criminal division main justice made the principal deputy public integrity the lead trial attorney. nevertheless, the report seems to minimize the responsibility of the public integrity for the failure of the case. the second chief -- section chief claims and the report seems to accept that he was cut out of the supervisory chain of command and the deputy chief claims that she will with drew from supervision over the

prosecution team because she didn't want to the cause dissension among the team. question, does the chief -- doesn't the chief of the section that wases in charge of the case bear responsibility for failures? this was perhaps one of the most important cases of public integrity has ever prosecuted, that of a sitting senator. why does the report seem to avoid a finding of fault against the section cleveland of public integrity ultimately responsible for all cases in the section? shouldn't boss at the top? if not, why not? >> first of all, senator grassley, it is not so that the report fails to address this the report catalogs in great detail the history of the management or mismanagement of the case. the report chronicles the fact that both mr. welch, then the

chief of the public integrity section, and brenda morris, his deputy chief, abdicated supervisory responsibility for sorted reasons, some of which you, senator, just recited. so the report did not shirk from addressing the failures of management.senator, that the obt of our investigation as chronicled in our r to determine whether or not criminal contempt proceedings were appropriate with respect to any of the named prosecutors. we found no evidence apart from this failure of management, that either mr. welch nor ms. morris willfully engaged in any misconduct in the nature of

concealing brady or giglio information from the defense. o the defense. >> this will be my last question, because i want to keep my colleagues going. integrity seem hapless, overwhelmed. at times, she seemed more interested in not ruffling feathers with the trial team. as an experienced prosecutor assign assigned to run the case, shouldn't she have risen above the concerns and she was tasked with? and if she was failing, wasn't it the job of her supervisor to

fix that? >> no question. >> good morning. both senator leahy and i have served on the commission, senator leahy far longer than i, but i almost 20 years. in the course of so doing, you learn a little bit about a person that sits on that committee. so, it is with kind of particular shock that we view what happen ed to him, made all the more worse by his premature devise, obviously, in the fact that he never knew the result of your report, which is a great tragedy. but as i understand, the department policies regarding assistant united states attorney, doj attorney engages in professional misconduct when he or she -- and this is a quote -- intentionally violates or acts in reckless disregard of

an obligation or standard imposed by law, applicable rule of professional conduct or or . do you make that finding in your report? >> i do not address the disciplinary rule, nor do i address the standards that the department of justice applies. what i did conclude is that in several instances, two of the surviving prosecutors engage in intentional misconduct. therefore, if the were to come to the same conclusion or if they concluded that the conduct was reckless, they would conclude that the lawyers engaged in professional

misconduc misconduct. >> mismanagement, specifically the lack of discipline by the prosecutors in the case and the schedule the prosecution was under. did you, in any way, shape or form, consider whether the failures to disclose evidence were due, at least in part, to lack of time or to a misinterpretation or misunderstanding of what these disclosure duties entailed? >> i did. and i found and concluded that there were a number of failures to disclose impeachment

information, the fact of supervision and the fact that a decision was taken to permit fbi agents who were not schooled in brady and giglio to do the brady giglio review. all of those were the product and failure of management came to light during the trial. they caused sullivan grave concern about the team but they came to light and the defense was able to use that information. not so with respect to the three episodes about which we concluded that there was intentional concealment of exculpatory information. none of those my judgment, was the product of

compressed time schedule or management supervision failures. >> so, what was the motivation? >> prosecutors, defense attorneys for that matter. i happened to have served as all three in the course of my career like to win. it's what we call contest living. we go into the case believing that our case is melatorious. we believe that our witnesses are telling us the truth. we do not want to have to undermine our case if it can possibly be avoided. i think that motive to win the case -- >> no matter what - was the pri

motive. i do not believe that any of th botini and mr. gehy from alask harbored anything against mr. stevens. i don't believe that either of them sought fame and glory and that's why they wanted to win the case. they did, however, want to win the case. >> thank you. thank you, mr. chairman. >> no matter how much a prosecutor might want to win, we have the responsibility to disclose exculpatory information. i can say prosecutor has a unique position in the system and aren't just there to win. i understand what you're saying. they aren't just there to win. they're there to make sure that

justice is done. former attorney general and justice. >> mr. schuelke, the constitution, integrity of our adversarial justice and members of the bar, as these prosecutors were, all depend upon prosecutors observing some goal above and more fundamental than just a desire to win. would you agree? >> mr. chairman, i would ask, on behalf of senator mccoskey and i i, as well. >> absolutely. i told her to include anything she wanted. >> you have performed a profound

public service. >> thank you. >> for that, i know it continues here today. the thing that disturbs me so greatly is not that this prosecution involved a united states senator, because i doubt we would be having this hearing if it involved a citizen who was not a united states senator, and that disturbs me greatly, because i know the resources that you and the court have put into this investigation and i doubt those sorts of resources, that time and that effort would be put into an investigation involving similar abuses involving the constitutional rights of other citizens. accused of crimes, but whose rights were violated by prosecutors by prosecutorial misconduct. do you share those concerns? >> to a degree.

the judge sullivan whom i know would have done the same thing no matter who the defendant was. >> i appreciate that and i appreciate what judge sullivan has done here, particularly allowing the release of this report, unredacted. and i hope the office of professi r in full and in unredacted form so we can get to the bottom this. of course, nicholas marsh committed suicide, did he not? >> he although his counsel was invited to submit a response and did so as a representative of mr. marsh's estate. >> the justice department has told us that the stevens case systemic problem with regard