The Ultimate Toll
Sunday, September 26, 2010, began as a typical autumn day in Washington, DC. The trees were dressing in their finery, and the air was becoming crisper by the day. It was time for apples, sweaters, sweatshirts, and football games. In a quiet, northwest corner of the city, there was a mixed neighborhood of construction from the 1950s and older, small bungalows. The bungalows were almost all refurbished now and occupied by young professionals working their way up through the gray bureaucracy we call our national government. Indeed the brick and Cape Cod gray frame cottage on 8th Street Northwest was completely unremarkable to anyone on the outside until midafternoon.
Nick was flopped on the sofa in the downstairs recreation room watching the endless football games. Actually he didn’t even know what he was watching. It didn’t matter anymore. Around 2:00 p.m., Nick got up and trudged to the laundry room where piles of clothes were lying on the floor. He found a loose razor blade and slashed his left wrist. Then he closed his eyes and slashed his right wrist.
He opened his eyes and watched the blood run down his hands and onto the floor. He felt faint and nauseous, but he didn’t think he had cut himself deeply enough to die—at least not quickly. He bled across the basement floor as he looked around for something else to use. He found a heavy-duty power cord, made a noose, and hanged himself.
Not even that worked instantly. His neck did not snap. He was suffocating.
When his wife came downstairs, she found Nick hanging by the power cord, unconscious and bleeding. She called 911, struggled to cut him down, and feverishly administered CPR.
Police cars, a fire truck, and an ambulance arrived at the house by 2:25 p.m. Nicholas Marsh, age thirty-seven, a prosecutor who had worked in the elite Public Integrity Section of the Criminal Division of the US Department of Justice, lay on his basement floor in a pool of blood, a power cord around his neck. He was pronounced dead by the DC coroner at 2:30 p.m. He died of asphyxiation.
Six weeks earlier, in the great state of Alaska, a group of friends, several with their teenage children, boarded a red and white striped, single-engine amphibious de Havilland DHC-3 Otter airplane for a day of Alaska’s finest fishing. It was August 9, 2010—the sky was gray with light rain in the morning, but the weather improved in the afternoon. At take-off, visibility was good with some clouds and patches of blue sky. The friends had enjoyed a hearty lunch at the GCI lodge on Nerka Lake and were ready for an afternoon in the amazing Alaskan outdoors. Some already had on their hip waders. The plane took off about 3:00 p.m. for a nearby fishing camp.
Former NASA Chief Sean O’Keefe and his son Kevin were on board. Young Kevin had the honor of sitting in the copilot’s seat, where he went to sleep. He was already exhausted from this outdoor adventure with his dad and their friends. The prominent parents and teenagers in the cabin were busy talking about the day and their plans to bring more business to Alaska. A couple more dozed off as the plane flew beneath the clouds and above the varied terrain. Suddenly the plane banked to the left.
Around 6:00 p.m., the folks at the lodge called the camp to find out when the group planned to return for dinner. The plane had never arrived. With full knowledge that Alaska is the most dangerous state for aircraft, they alerted all rescue services immediately. Other planes and helicopters were dispatched to look for the small plane. Severe weather was coming in fast.
About 7:30 p.m., one of the volunteer searchers in a Cessna plane spotted the aircraft about fifteen minutes from the lodge. The plane had crashed onto a thirty-degree slope of a heavily forested mountainside. A nearby helicopter crew arrived and reported that the aircraft appeared mostly intact. There was no fire, but the left wing was torn off, leaving a gaping hole in the side of the fuselage that was visible from the air. The helicopter crew saw one survivor waving. The chopper landed about 1,000 feet above the accident site, dropped off a technician, and went to pick up a doctor.
Shortly thereafter, the helicopter managed to drop off a doctor and then two emergency medical technicians with medical supplies and equipment. The small rescue team hiked down the mountain in difficult conditions, carrying all they could before the Alaska night and weather closed in on them. When the rescuers reached the crash site, they found five people had died, including the pilot. Sean and Kevin O’Keefe and two others were still alive. The rescue team spent the night helping the four survivors and trying to keep them warm. It took twelve hours for more rescuers to get to the site and evacuate everyone.
The plane was equipped with a terrain awareness warning system (TAWS) that would have visually and audibly notified the pilot to pull up if he was too close to the terrain. The TAWS had been “inhibited” or disabled. There was no cockpit voice recorder or flight data recorder. Three autopsies of the pilot provided no discernable reason for the crash.
The breaking news on every channel hit Alaska and then the entire country like an 8.9 earthquake:
FORMER SENATOR TED STEVENS, BELOVED CHAMPION of ALASKA, HAS BEEN KILLED NEAR DILLINGHAM, ALASKA, in the CRASH of a PRIVATE PLANE WHILE HE WAS on a FISHING TRIP WITH LONGTIME FRIENDS.
Ted Stevens, a decorated World War II hero, a former US attorney, and living legend in Alaska, had lost his seat of more than forty years in the US Senate after being found guilty by a jury a year earlier for failing to report alleged gifts on senate forms. It turned out that Senator Stevens was innocent, and the prosecutors from the Public Integrity Section of the Department of Justice had broken ethical rules, disregarded court orders, and violated constitutional law while they hid evidence favorable to his defense—called “Brady material.”
The defense had caught a few of these shenanigans—enough that US District Judge Emmet Sullivan had become irate. The judge’s refusal to ignore or excuse the prosecutors’ misconduct dealt a whopping black eye to the Department of Justice in the media. When it became obvious that Judge Sullivan was going to dismiss the indictment against Stevens, Attorney General Eric Holder swooped in, proclaimed he would clean up the department, and moved to dismiss the indictment against Stevens. Holder’s pledge, however, was too little and too late for Judge Sullivan.
Holder’s proclamations notwithstanding, Judge Sullivan could no longer trust the Department of Justice. The elite prosecutors had lied to him time and time again, often with Deputy Assistant Attorney General Rita Glavin—Acting Attorney General Matthew Friedrich’s eyes and ears—observing in the courtroom. Judge Sullivan took the extraordinary step of appointing a special prosecutor, DC attorney Henry Schuelke III, to investigate the prosecutors for possible charges including contempt. This was unprecedented.
Former Senator Stevens, a vigorous and powerful advocate long beloved in Alaska, had publicly pledged to advocate tirelessly for new legislation that would require the government to produce Brady information to a defendant in every case and to impose clear penalties for any failure to do so. Stevens didn’t want what had happened to him to happen to anyone else. Remarkably the Department of Justice vehemently opposed Stevens’s proposal.
The news of the senator’s untimely death brought attention once again to his corrupt prosecution and dominated the news for the next several days. Editorials abounded, virtually all of which extolled former Senator Stevens’s accomplishments on behalf of Alaska, and they all mentioned the injustice of his prosecution and the misconduct of his prosecutors. Stevens’s defense attorneys, led by Brendan Sullivan and Rob Cary of Williams & Connolly, lauded the senator’s accomplishments and mourned the toll the corrupt prosecution had taken on him, his career, and his family. “The verdict against him was based on fabricated evidence,” Brendan Sullivan reminded everyone. Notably Judge Sullivan had appointed Schuelke, whose investigation into the misconduct of the prosecutors was ongoing “fallout” from the case that “devastated the reputation of the Justice Department’s Public Integrity Section. . . .”
“Stevens was innocent, and insisted on fighting the charges,” the partners declared. “He remained profoundly affected by the government’s misconduct and its implications for others. His fervent hope was that meaningful change would be brought to the criminal justice system so that others would not be mistreated as he was by the very officials whose duty it is to represent the United States justly and fairly.”
The senator’s death and the tsunami of renewed publicity of prosecutorial and government misconduct was drowning Nick Marsh. He could hardly breathe. It was all he could do to get up in the mornings and go to the back office to which he had been relegated at the Department of Justice. Nick felt heavier and heavier. He was on the verge of losing his career and possibly his liberty, and he felt as if he had lost his soul. He didn’t recognize himself anymore. He needed peace, but he knew it would only get worse for him.
At age thirty-five, the handsome, angular-jawed, dark-haired young prosecutor had been one of the youngest attorneys in the prestigious Public Integrity Section of the Justice Department, nicknamed “PIN.” His office was in “Main Justice,” the impressive building that occupies a block of expensive real estate between Pennsylvania and Constitution Avenues. He was just a couple of blocks from the White House and next door to the National Archives, which houses the Constitution and the Declaration of Independence.
In the four years Marsh had been a federal prosecutor in PIN, he had led the investigation into public corruption in Alaska. He and his team of fellow PIN prosecutor Edward Sullivan and Alaska Assistant US Attorneys Joseph W. Bottini and James A. Goeke, along with FBI agents, had begun the “Polar Pen” investigation in Alaska in 2004. They had tried and convicted seven high-profile legislators and businessmen, using much of the same evidence that they later used to indict and convict Senator Ted Stevens.
PIN attorneys were the best of the best. They were supposed to adhere to the highest standards. After all, they investigated public officials for public corruption. They had to be above reproach. At the same time, there was so much pressure to win—especially in the high-profile and political prosecutions. These were the cases that would make or break a prosecutor’s career. A win in these cases was a first-class ticket to seven-figure incomes in the most prestigious national or international law firms or promotions up the ladder in the Department of Justice, the White House, or the leadership of the FBI.
The pressure had been bad enough two and one-half years ago, before Matthew Friedrich had skyrocketed from his position as an Enron Task Force prosecutor to acting assistant attorney general of the Criminal Division of the Department of Justice. Within days of the arrival of Friedrich and his deputy, Rita Glavin, they intruded heavily into the Stevens case. They began weekly—sometimes daily—meetings with PIN management—Section Chief Bill Welch and Deputy Chief Brenda Morris. Friedrich and Glavin demanded a chart of evidence and defenses, and they summoned all the prosecutors, including the two assistant US attorneys from Alaska, for a presentation to them. For unknown reasons, they rushed to indict Senator Stevens, the longest-serving Republican in the senate.
Friedrich and Glavin took control of the Stevens prosecution and micromanaged it to absurd detail. On the eve of the indictment, they demoted Marsh from first chair to third chair for Stevens’s trial. After Friedrich and Glavin took over, the prosecution had nothing but problems, yet no one outside of a small circle within the department would know that until long after it all started to unravel.
Nick knew the truth. When it all fell apart, he and his fellow trial team members became the targets of both an internal department investigation and the independent Schuelke investigation ordered by Judge Sullivan. Nick just knew that the life he loved as a federal prosecutor was over. He feared that everything that went wrong in the Stevens prosecution was going to be hung around his neck. Friedrich and Glavin were way too politically connected and savvy to take the fall. The judge did not name them in his order authorizing Schuelke’s investigation. There was no apparent reason to do so. They were not the trial attorneys.
Nick came to realize that being a target of a criminal investigation felt very different from running one. The Schuelke and internal investigations seemed to be taking forever. It had already been more than a year. Six weeks after Senator Stevens’s plane crash and death, Nick was numb.
The gruesome suicide of one of Senator Stevens’s prosecutors, who was himself under investigation for corruption, dishonesty, and misconduct, sent another shock wave of distress through the department less than two months after the senator’s plane crash. Yet again, the department and the wrongful prosecution of Stevens were in the national news.
Virtually everyone who saw the breaking news and knew anything about the Stevens prosecution and the investigation of the prosecutors viewed it as a message: Nicholas Marsh was guilty of hiding evidence that would have exonerated Senator Stevens or he knew more than he had said.
Patton Boggs attorney Robert Luskin was Marsh’s lawyer. Luskin spoke to reporters shortly after the news broke, calling Nick’s suicide a “terrible tragedy.” He spoke of how Nick “loved being a prosecutor” but was “incredibly fearful” that the investigation would end his career with the Justice Department. Luskin claimed they were “on the verge of a successful resolution.” He said he expected Schuelke to “exonerate” Marsh.
Luskin’s optimistic proclamation was far from the reality Nicholas Marsh had felt and that insiders knew. Maybe Nick’s friends and family believed it. Maybe they had to believe it. Maybe it was the only way they could protect their own feelings for the Nick they believed him to be—the Nick they thought they knew, the Nick they had always loved. Publicly, Nick’s friends, and Luskin, blamed the pressure and the length of the investigations for his suicide. Luskin added, “The whole process imposed an unbelievable burden on Nick, a burden that in the end, he couldn’t bear.”
The Wall Street Journal reported that “Joshua Berman, a former prosecutor and friend,” said that Nick “was anxious that the probe had dragged on but that friends never realized the depth of his worry.” Berman said that the delay exacerbated Nick’s stress and belief that the result would be “something bad.”
No one ever seemed to consider the stress the wrongful prosecution had put on Senator Stevens and his family—for substantially longer than eighteen months—and the continuing effects it had on the remainder of his life and on his family.
Lawyers in the defense bar saw Marsh’s suicide as an admission of his own guilt. Lawyers know all too well that prosecutors are almost never punished in any way—regardless of how egregious their conduct is. It is extremely difficult for a wronged defendant to sue a prosecutor. They have immunity from lawsuits because they work on behalf of the “sovereign.” They can hide evidence of a defendant’s innocence with impunity. They have little concern that it will ever be discovered, and even if it is, they know they will suffer no consequences.
Judges routinely believe prosecutors when they say “we’ve produced all Brady evidence.” Judges rarely push back on that assertion, no matter how much the defense complains or what suspicions are raised. Only on the rarest of occasions have prosecutors even been suspended by their bar association for hiding evidence favorable to the defense. And here, Marsh and each of his fellow prosecutors had the luxury of being represented—at the taxpayers’ expense—by the best criminal defense lawyers in the country.
Ironically Schuelke’s investigation was moving quickly by federal standards. Many people, especially those prosecuted by Acting Attorney General Friedrich and his colleagues when they were on the Enron Task Force, lived with the torment of investigations, criminal charges, repeated prosecutions, and imprisonment for years, even a decade. No one in the department, including Marsh, gave any thought to the toll their tactics and decisions took on others—until, perhaps, Judge Sullivan turned the tables. Being investigated was very different from being the investigator. It was as different as being on opposite ends of a high-powered rifle with a laser sight.
The news reports that afternoon of September 26 and even the headlines the next morning all said almost the same things—not much: “GOVT. PROSECUTOR IN TED STEVENS CASE COMMITS SUICIDE.”
They all quoted Robert Luskin’s charitable assertion that Marsh would be exonerated by the investigations. Most quoted Assistant Attorney General Lanny Breuer’s expression of sympathy at the loss of “this dedicated young attorney” on behalf of the “community of the Department of Justice.” Some quoted Marsh’s friends. No details were provided from any office investigating the unusual death. The reports seemed canned, and the story faded quickly.
Nicholas Marsh, a brilliant, capable young man, paid the ultimate price for something that should never have happened. He was shattered—by his own choices and those imposed upon him. Either way, he, Senator Stevens, and their families were needlessly sacrificed on opposite sides of the altar of injustice because of the deplorable failure of a system that is supposed to protect all of us.
Before and after the senator’s death and Marsh’s suicide, Special Prosecutor Schuelke and his partner, William Shields, were working diligently to pull back the cobalt-blue curtain bearing the impressive seal of the Department of Justice. Ultimately Schuelke would reveal shocking facts with ramifications of their own.
As thorough as Schuelke was, he was barely scraping the surface. The illegal and unethical tactics that unseated Senator Stevens, changed the balance of power in the senate, and had now claimed two lives were orchestrated above Nicholas Marsh. Narcissistic and terrifying tacticians were ascending to great power on a foundation and legacy of lies, corruption, and injustice that would take years to uncover. They had long practiced to win at any cost and skillfully buried the truth deep.Follow Me 👉🏿