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 to voluntarily release information regarding perjury by bill allen who was a key government witness who said in the other line, the prosecutor in alaska mr. goeke, that he claims they moved to disclose that, but your report says that mr. bottini and mr. goeke intentionally withheld this information and does not -- and did not try to 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 goeke 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 unequivocal 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, quote, 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 she withdrew from supervision over the team because she department want to cause dissension among the team. question, does the chief -- doesn't the chief of the section that was in charge of the case bear responsibility for failures? this was perhaps one of the most important cases 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 the buck stop with the boss at the top? if not, why not? >> first of all, senator

grassley, it is not so that the report fails to address this issue. 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. recall, senator, that the object of our investigation as chronicled in our report was 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. >> this will be my last question, probably because i want to keep my colleagues going. the report makes the deputy chief of public integrity seem happenless, overwhelmed, at times, she seemed more interested in not offering feathers with the trial team and aggressively supervisinging the case. as an experienced prosecutor assigned to run the case, shouldn't she are risen above the concerns about ruffling feathers and done the job she

was tasked with and if she was failing, wasn't it the job of her supervisor to fix that? >> no question. >> thank you. >> thank you. >> thank you very much. >> good morning, senator -- >> your work in this area. both senator leahy and i have served on the appropriations committee with senator stevens. senator leahy far longer than i, but i, almost 20 years, so in the course of so doing, you learn a little bit about a person that sits on that committee. so, it is with a kind of particular shock that we view what happened to him, made all the more worse by his premature demise, obviously, and the fact that he never knew the result of your report, which is a great tragedy. but as i understand, the

department policies regarding assisting united states attorney, an attorney engages in professional misconduct and this is a quote, intentionally violates or acts in reckless disregard of an obligation or standard opposed by law. applicable rule of professional conduct or department regulation or policy. do you make that finding in your report? >> i do not address the disciplinary rule, nor do i address the standards that the justice, the department of justice applies. what i did conclude is that in several instances, two of the surviving prosecutors engaged in intentional misconduct.

therefore, if the department were to come to the same conclusion or if they concluded that the conduct was reckless, they would per force conclude that the lawyers engaged in professional misconduct. >> your report finds that the prosecution was troubled by significant mismanagement, specif specifically the lack of supervision to attorneys prosecuting the case and the schedule of 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 dut i did.

and i found and concluded that there were a number of failures to disclose, impeachment information yowing to the compressed schedule, the absence of supervision and the fact that the decision was taken to permit fbi agents who were not schooled in brady and giglio, to do the brady giglio review. all of those occasions, which, in my judgment, were the product of the failure of management, came to life during the trial. they caused judge sullivan to have grave concerns about the credib credibility of the prosecution team, but they did come 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 or impeachment information. none of those three in my judgment, was a product of the compressed time schedule or the management supervision failures. >> so, what was the motivation? >> prosecutors, plaintiff's attorneys, defense attorneys for that matter. i happen 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 a case believing that our case is mel tor yous. we believe 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 -- was the principle operative motive. i do not believe that any of the prosecutors, including mr. botine and goeke from alaska, harbored a personal an mouse toward senator stevens. i don't believe that either of them sought fame and glory and that's the reason they wanted to win the case. that's just not in their personalities in my judgment. they did, however, want to win the case. >> thank you. >> just remind everybody, no matter how much a prosecutor might have wanted to win, we still have the brady case and

the responsibility to disclose exculpatory information. prosecutor and one that was a prosecutor has the unique position in the system. they're not just here to win. i understand what you're saying, but not just there to win. they're there to make sure the justices -- senator cornyn speaki speaking prosecuting former attorney general and justice. >> the constitution, the integrity of our adversarial system of justice and rules of professional reasonability that bind members of the bar as these prosecutors were, all depend upon prosecutors observing some goal above and more fundamentally, more fundamental than just a desire to win. would you agree? >> absolutely. >> mr. chairman, i'd ask on

behalf of senator mer kous, she has a statement to be put in the record and i have one as well. >> absolutely. and i >> absolutely. i told senator murkowski we would include anything she wanted. >> mr. schuelke, you have performed a profound public service. thank you for that. and i know it continued 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 professional responsibility report will be released to us in full and in unredacted form so we can get to the bottom of this. of course one of the prosecutors in this case did not have an opportunity to respond to your report. nicholas marsh committed suicide, did he not? >> he did.

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 does not suggest a systemic problem with regard to prosecutors buzzing their responsibilities to divulge exculpatory and other information required under brady and giglio. how are we to be -- how can we possibly be satisfied with that representation? and how do we know? how does any citizen know that the department of justice won't abide by similar prosecutorial misconduct in the future? >> first of all, i do not believe, on the basis of our investigation, that what happened in the stevens case is

representative of what happens in the cases brought by the thousands across this country by the department of justice. secondly, as senator leahy indicated at the outset, ite th eric holder, who moved that the stevens case be dismissed with prejudice when he learned of a portion, a portion of the nondisclosure which had occurred in the case. eric holder did not shirk from that responsibility. i know eric holder both personally and professionally and have for years.

likewise, deputy jim cole. likewise, the assistant attorney general of the criminal division, lanny brewer. they are men of integrity. and i do not believe the stevens case not withstanding that the public should labor under the notion that what happened in the stevens case happens as a matter of course. >> mr. schuelke, i agree with you that the attorney general is entitled to credit for after the fact raising this issue with the court and seeking the dismissal of the charges. unfortunately, the damage to senator stevens and to the adversarial system of justice had already been done and there's nothing that the attorney general or anyone else could do to undo it. and so i know you -- let me just ask in conclusion, since time is short here.

in those instances where the character and integrity and professional responsibility of a prosecutor do not seem to overcome their desire to win at any cost, is there anything that congress can or should do? or is there any further action that you would recommend that we take in order to make sure that abuses like this do not occur? because i worry when they do sometimes occur -- i agree with you that in the main prosecutors are honorable people who perform their responsibilities with integrity. but in those instances where they do not and where they intentionally withhold this kind of information, as you said these prosecutors have, how do we protect the integrity of our system of justice? how do we protect our

the integrity of our system of justice? how do we protect our constitution? >> i do have an opinion. as you know, they have long the supreme court of the united states, as well as the circuit courts around the country have long articulated an appellate standard of review of brady violations. by that standard, the court will not reverse a conviction even in the presence of the concealment of exculpatory information unless the court is able to conclude that that concealment was outcome determined. that is to say that it was material to the conviction and was so material to the

conviction that it would leave one without confidence in the guilty verdict. so we have this appellate materiality standard which makes perfect sense to me from the post hoc perspective of an appellate court. because that has been articulated over the years, prosecutors take the view pretrial that they are only required to t ey believe to be material. that is what might ultimately have an adverse effect on the outcome. judge paul freedman of the district court here in washington in a recent fairly publicized case called safavian addressed this issue and said no, it is not the prerogative of the prosecutor, one of

adversaries of course in this proceeding to decide before a single witness has been called to testify, before a jury has been impanelled, before the judge has ruled on the admissibility of any piece of evidence that some exculpatory or impeachment information will not be material. that's looking judge friedman said at the subject through the wrong end of the telescope. he's absolutely right about that, in my judgment. that makes perfect sense. so i believe the question for the congress may be squarely presented. need we do something about eliminating this materiality requirement so that prosecutors understand that in the pretrial setting, they are required to

disclose any information which is favorable to the accused or which would serve to impeach anticipated government witnesses. i know that the department of justice has a strong, contrary view. namely that there should be legislation to achieve this. rather the department, through the u.s. attorney's manual and through guidance issued by then deputy attorney general david ogden in december of 2010, largely inspired by the stevens case, issued guidance which directs the prosecutors to disclose information, that's impeachment that is exculpatory