Thursday, October 7, 2010

Notes on the Life, Death, and Mental State of Nicholas Marsh


Nicholas “Nick” Marsh died by his own hand September 26 while under investigation for his conduct as a prosecutor in the Ted Stevens case. The suicide of a government lawyer who played a critical role in the federal government’s “POLAR PEN” probe into Alaska public corruption has triggered a number of pieces in the media talking about his life and speculating—explicitly or implicitly—about why he killed himself.

When I saw the headline that a prosecutor under investigation in the Ted Stevens case had killed himself, I thought of Marsh even before I could see a name.

There has been no report of a suicide note, and it seems difficult in most cases to know why somebody ends their own life. We do know more than we did about him before his death, however, and it is worth it to put the media coverage of his suicide together with what I observed in weeks of watching him at the trials of Ted Stevens and Pete Kott. What follows is mostly from what appears to have been Marsh's own perspective on his life and death.

Let’s start with what he would have preferred to focus on, his accomplishments.

Early Life: Philosophy and Lacrosse

According to his Washington Post obituary, the man all his friends called Nick was born and went to high school in Kentucky. There seem to have been some high expectations in his family: Marsh’s stepfather was on the cover of Time magazine after performing the first successful transplant of an artificial heart into a human patient.

Marsh left the Louisville area to study at some of the world’s best schools: philosophy and history at Williams College; philosophy again at Oxford University; law and literature at Duke University.

This description of his academic career fits in well with what a number of observers saw in court looking at the slight, boyish-looking, and wonky-sounding attorney. Blogger Steve Aufrecht wrote that the dark-haired prosecutor reminded him of Peter Parker as played by Tobey Maguire in the Spider-Man movies.

Standing outside that image, however, are the facts that Marsh lettered in lacrosse at both Williams and Oxford.

Known for centuries among the Native Americans who created it as “the Little Brother of War,” lacrosse has grown away from the all-out violence that used to characterize it. The sport still emphasizes aggression, however, and can easily be marketed as “football on Viagra.” Lacrosse also values speed and agility, but you have to bang bodies in the men’s game, a sport that Marsh played well at a high level. Studying philosophy and literature is good training for writing appellate briefs, but playing college lacrosse gives you the physical taste for competition that could prepare you better for going toe-to-toe in court with high-powered lawyers.

Nick Marsh repeatedly impressed his superiors on his way up. A Duke law professor specializing in criminal law told the Anchorage Daily News that her former student was a lawyer "who really had a lot to offer the world….He was someone who wanted to make a positive contribution; that's one of the reasons he wanted to work for the government."

Fairbanks Law Clerk

After law school, Marsh did a one-year judicial clerkship for Ninth Circuit Court of Appeals Judge Andrew Kleinfeld. Those chambers were in what Marsh later jokingly called “the balmy metropolis of Fairbanks, Alaska.” The young law clerk worked hard—one of his fellow clerks remembers late nights in the office and pre-dawn food runs to a Burger King while wearing business suits—and the boss clearly liked him. Judge Kleinfeld told the National Law Journal that Marsh “was a person of the highest integrity, a very decent, intelligent, hard-working guy."

Beginnings of Career in Prosecution

Judge Kleinfeld recommended Marsh for the position in the Department of Justice’s Public Integrity Section that the lawyer took four years after his clerkship ended, according to the National Law Journal. The judge’s kind words were almost certainly helpful in the young lawyer obtaining some other good jobs in between. Marsh worked at two old-line law firms in New York City before taking a job as a prosecutor with the U.S. Department of Justice in 2003.

The National Law Journal has reported that Marsh worked briefly at the U.S. Attorney’s Office in Washington, D.C. before starting at the Justice Department’s Public Integrity Section, an elite squad of 25-30 attorneys who fight public corruption around the country.

The new hire impressed his bosses again by handling three appellate cases his first year, according to the National Law Journal. He also worked in 2004 on the Mississippi-based prosecutions flowing out of attempts to defraud a settlement involving the drug fen-phen, and he was on the government’s courtroom team at a 2005 trial in New Hampshire over a Republican campaign official’s involvement in jamming the phones on a Democratic Party get-out-the-vote drive.

Point Man in POLAR PEN

A recent court filing has stated that the “POLAR PEN” probe into Alaska public corruption started the summer of 2003. According to a Legal Times article in 2009, Marsh began traveling in 2004 to the Great Land to work on that investigation.

At some point between 2003 and 2006, the U.S. Attorney’s Office in Anchorage was recused—lawyer lingo for stepping aside because of a potential or actual conflict of interest—from any decision-making in the POLAR PEN probe, and the Washington-based Public Integrity Section took over. Marsh became immersed in the public corruption investigation on the Last Frontier as the senior prosecutor on the ground.

"Nick spent a lot of his life and energy working on the Alaska cases," a Public Integrity Section supervisor told the National Law Journal. "I can only say he sacrificed a whole lot of himself working on those cases, logging tens of thousands of miles traveling to and from Alaska."

Marsh was involved in the dozen prosecutions arising from the POLAR PEN probe, and gained a reputation among defense attorneys as a tough-minded zealot. Marsh served as essentially the lead government attorney in two trials producing convictions of ex-State Reps. Tom Anderson (R.-Anchorage) and Pete Kott (R.-Eagle River).

Marsh appeared set up to be the lead prosecutor in the country’s biggest public corruption case in years, as he had played a lead role in the grand jury investigation of U.S. Sen. Ted Stevens. In the words of the Website, the prosecution of Ted Stevens would be the “crown jewel” of POLAR PEN, as it would be the first trial of a sitting U.S. Senator in a quarter century and a trial of the man who was one of the longest-serving U.S. Senators ever.

Shortly—perhaps only days—before the indictment came down in late July of 2008, however, higher-ups at the Justice Department inserted another lawyer over Marsh on the Ted Stevens case. The decision to put the sassy Brenda Morris in at the top at the last minute bothered the decidedly unflashy Marsh, the Legal Times reported in 2009.

Although not the lead government lawyer, Marsh was one of three prosecutors appearing before the jury at the highly publicized trial. He argued some of the most important legal motions, and did a particularly good job in cross-examining critical defense witness Bob Persons.

Marsh also took heat during the trial from the judge, however, for some of the problems that arose from the government’s failure to turn over--or "discover"--to the defense all the evidence the law required. Following some contentious hearings and some additional provision of discovery during the trial, the judge allowed the trial to proceed.

Marsh and his team of four fellow prosecutors at trial (three--Marsh, Brenda Morris, and Joseph Bottini--at the counsel table, with two others mostly working on legal motions back at the office) worked around-the-clock for weeks. The prosecution was up against what the Washington Lawyer reported was 11 lawyers (six at the counsel table, with five others mostly back at the office) fielded by Williams & Connolly, the pre-eminent law firm in the country when it comes to white-collar criminal defense. The defense cost $2 million or more—Stevens’ lead attorney Brendan Sullivan typically billed at $1,000 per hour—and the defendant made a filing to the U.S. Senate after the trial disclosing that he owed Williams & Connolly between $1 million and $5 million.

At the end of the five-week trial, the jury returned guilty verdicts against Ted Stevens on all seven felony counts charging failure to report gifts and services—essentially lying to conceal free benefits on forms he submitted to Congress over a half-dozen years. The jury had given Marsh and his colleagues an unqualified victory.

In December of 2008—six weeks after the jury came back with guilty verdicts—Marsh gave an advertised talk at Duke, speaking to the law students at his alma mater on the topic of “Prosecuting Public Corruption Cases: A Prosecutor's Perspective.”

The Ted Stevens Case Flames Out and Burns the Prosecutors

Four months after his talk, his best-known triumph had turned to ashes. The FBI agent who served as co-lead agent on the POLAR PEN probe filed a complaint that alleged misconduct by government officials, including Marsh himself. The trial judge became angrier and angrier with prosecutors in post-trial proceedings, and the Justice Department put a new team on the case after the judge took the extraordinary step of holding some government attorneys in contempt of court. That new team of prosecutors found additional evidence—including some critical items—that the government had not disclosed to the defense before or during the trial.

In April of 2009, Attorney General Eric Holder decided to join the defense request to have the guilty verdicts set aside and the case dismissed. U.S. District Judge Emmet Sullivan dismissed the case with prejudice, stating "In nearly 25 years on the bench, I've never seen anything approaching the mishandling and misconduct that I've seen in this case." In another extraordinary step, Judge Sullivan ordered that a court-appointed special counsel mount a criminal investigation of Marsh and five other prosecutors to see if they committed contempt of court. This probe joined an internal investigation of the prosecutors' conduct run by the Justice Department’s Office of Professional Responsibility (OPR).

The collapse of the Ted Stevens case produced an orgy of anonymous finger-pointing in the press, with some of the blame in the media being dumped on Marsh personally. (New York Times, April 6, 2009: “One of the trial lawyers implicated in several instances of alleged misconduct and concealing documents was Nicholas Marsh….”)

Things went further downhill two months after the case collapsed. In June of 2009, his superiors told the man who had just six months before given a presentation about the prosecution of public corruption to the students at his law school that he was being transferred out of the elite Public Integrity Section. Along with the more junior Public Integrity Section attorney who had gone repeatedly to Alaska, Marsh was sent to one of the Justice Department’s relatively low-profile units, the Office of International Affairs.

Even though the Website called Marsh’s new workplace a “backwater,” the actual responsibilities sound more than OK. Marsh got a caseload of 200 cases in Europe and a job that had him doing a lot of international travel; his work took him to Hungary and Moldova, the latter trip only two weeks before his death. The government sustained a defeat in his most publicized case at his new assignment—the attempt to extradite fugitive filmmaker Roman Polanski in a decades-old sexual abuse case—but his bosses didn’t seem to hold that setback against him personally.

What might seem a pleasant assignment to the great majority of people in the world could not make Nick Marsh feel good, however. He felt like he had a bull’s eye on his back and was being set up to be the fall guy for the prosecution’s problems in the Ted Stevens case and other Alaska cases he had handled.

The day Marsh was transferred to the Office of International Affairs, the Justice Department announced that a review of the convictions of two former Alaska state legislators showed some evidence that should been provided to the defense. These discovery violations led the new team of government prosecutors to take the highly unusual step of asking the court to release ex-State Reps. Pete Kott and Vic Kohring from prison while the court sorted out what to do with their cases.

The parade of bad news for Marsh continued after his transfer. A defense filing in the Kott case was particularly damaging to the lawyer, as it revealed an e-mail message from Marsh to his superiors that arguably suggested insufficient attention to the prosecutor's discovery obligations during witness coaching sessions with key government witness Bill Allen.

Friends told reporters at, the Wall Street Journal, and the National Law Journal that Marsh was distressed with the length of the investigations of the prosecutors’ conduct, which by the time of his suicide had run on almost 18 months after the dismissal of the Ted Stevens case. Friends also said that Marsh was bothered by a sense that he was being scapegoated while higher-ups who shared whatever culpability he had in the discovery problems were getting off easily. When Marsh was transferred out of the Public Integrity Section, the Washington Post reported that some in the Justice Department—presumably including Marsh himself—were afraid that “lower-level attorneys were being sacrificed by new political appointees at the department who are now applying more rigorous standards on evidence-sharing practices than were in place before.”

One unnamed friend told "When the s___ hit the fan -- regardless of what happened or who was at fault -- in a high profile case like this, the mistakes go higher up the chain."

While Marsh and another junior attorney under scrutiny were sent to the less prestigious Office of International Affairs, friends said that Marsh was bothered by what he saw as inconsistent treatment of two other lawyers under investigation. Two of Marsh’s former superiors at the Public Integrity Section who were subjects of the probes—including Brenda Morris, who did double duty as the lead counsel in the Ted Stevens case—got to continue to work on high-profile prosecutions. Marsh also had to know that Morris—by all accounts the life of many parties—had been a friend of Attorney General Eric Holder.

Although friends said the lack of resolution in the investigations weighed on Marsh, he also seemed to fear the results when they finally ended. Potential outcomes of the probes included the imposition of professional discipline or even being criminally charged himself. Even if he escaped those fates, National Public Radio reported attorneys involved in the investigations seemed to believe that that “the best case scenario” for Marsh and the other lawyers under investigation was a “very blistering report” that would come out later this year, with the special court-appointed counsel’s report to be released perhaps in a few weeks.

Marsh had very good representation in these investigations: His attorney had helped then-Deputy Chief of Staff Karl Rove escape prosecution in the Valerie Plame affair. That excellent lawyer—Robert Luskin—told the Wall Street Journal after the suicide that "We are so close to the finish line. I have every reason to think he would have been exonerated."

The problem was that a victory for Marsh’s lawyer—avoidance of criminal prosecution for his client—would not return to Marsh his previously good reputation and excellent career prospects.

“Nicholas Marsh was gripped with a growing sense of dread,” the National Law Journal said after his death. “Close friends said the young lawyer was uncertain whether he would salvage his career at the U.S. Justice Department or whether private law firms would hire him.”

Marsh didn’t seem to see less lofty or less traditional career goals as an option, as that wasn’t his frame of reference. Judging by those quoted in the articles about him, his friends tended to be either Justice Department prosecutors or partners at large law firms.

His friends stood up for him in the press after his death: Joshua Berman called the accusations against Marsh “unfounded,” and Joshua Waxman said that “He had a long career of working on public corruption cases and great success in prosecuting.”

Marsh’s lawyer Robert Luskin told the National Law Journal that "The whole process imposed an unbelievable burden on Nick, a burden that in the end he couldn't bear."

Marsh hanged himself last week in the basement of the home in Washington he shared with his wife, whom he married shortly before the Ted Stevens trial started. He was 37.

(This post relied on a number of media reports, particularly those of Carrie Johnson of National Public Radio (and formerly of the Washington Post), Mike Scarcella of the National Law Journal, Ryan J. Reilly of, Evan Perez of the Wall Street Journal, Joe Palazzolo of Dow Jones (and formerly of Legal Times and, and Erika Bolstad of McClatchy Newspapers, owner of the Anchorage Daily News.)

Clarification on January 27, 2011--My original description of the total number of Stevens prosecutors as Marsh and five others included in its total William Welch, who was heavily involved in the prosecution but did not work full-time on the case during the trial. Welch is one of the six prosecutors identified in the original charge given to the special counsel selected by U.S. District Judge Emmet Sullivan along with the five who did work full-time on the case during the trial: Brenda Morris, Joseph Bottini, James Goeke, and Edward Sullivan.

No comments: