Administrative Judge Throws Out Suspensions Of Two Attorneys In Botched Stevens Prosecution

DeptofJusticeThe Justice Department has long been accused of whitewashing misconduct of its own prosecutors and rarely acting on acts of prosecutorial misconduct, including common complaints of federal prosecutors withholding evidence and making misrepresentations to counsel or the courts. Even in high profile cases of misconduct, the Justice Department often drags out investigations only to later quietly end them without sanctions. One of the few sanctions meted out by the Justice Department came with attorneys responsible for the disastrous prosecution of former Senator Ted Stevens where their misconduct not only led to reversal of the case but the waste of millions of dollars. Now, however, an Administrative Law judge has overturned the suspensions of two federal prosecutors.

The Justice Department imposed the suspension after finding that the two prosecutors had engaged in reckless professional misconduct. Notably, this finding excused the prosecutors of intentional misconduct, a finding ridiculed by many in a case of clear prosecutorial abuse. The penalty came years after the misconduct and only involved a suspension without pay. Joseph Bottini was suspended for just 40 days and James Goeke was suspended for just 15 days. Even that is now dismissed under the ruling of Judge Benjamin Gutman. The reasoning gives an insight into why it is so difficult to get the Justice Department to mete out even mild punishment for prosecutorial misconduct.

Gutman ruled that the Justice Department had violated its own procedures, which require a rank-and-file lawyer to decide whether professional misconduct had occurred. There is an obvious culture of protection and insularity at the Justice Department. Attorneys are loathe to find other colleagues guilty of misconduct. Moreover, such findings have a clear impact on all of the attorneys at the Department in setting an enforceable standard and precedent in future cases of misconduct.

In this case, a line attorney, Terrence Berg, found that any mistakes by the attorneys did not rise to the level of sanctionable professional misconduct. That finding was reversed by his unit’s chief, Kevin Ohlson. Gutman found that this change by the supervisor violated how the department handles such matters.

The result is that even this mild punishment will now be tossed out in one of the Department’s most damaging scandals. With the earlier sweeping DOJ finding in favor of the litigation team, the result is all too familiar for those who watch the department. Since the suspensions were viewed as laughable by most objective viewers, the ruling is not going to generate much discussion. What should be the focus is the continuation of the Justice Department’s record of insulating its attorneys from discipline for even the most egregious forms of misconduct. The result of such cases sends a clear message to the rank and file attorneys that they have little to fear from allegations of misconduct.

Here is the opinion: bottini-mspb-initial-decision
Source: NY Times

16 thoughts on “Administrative Judge Throws Out Suspensions Of Two Attorneys In Botched Stevens Prosecution”

  1. Ralph Adamo: “… the American people have NEVER demanded that their presidential candidates attack any of those things.”
    Oh yeah. Stop all that waste. That is, except MY check. Keep it comin’.

  2. Hey, these guys would have to rape the judge on her bench to be penalized.

  3. We have secret prisons, our own “torture island” on GITMO (which we pretend doesn’t violate US and international law), a high tech assasination program, both Republican and the current admistration sign off on all of this crap, and we’re suprised by a little whitewash at the DOJ? Pshaw!

  4. It seems that the real issue has been lost on everyone in this case. The failure to address prosecutorial misconduct in the DOJ is a TONE AT THE TOP PROBLEM. What does “tone at the top” mean? “Tone at the top” is a term that originated in the field of accounting and means that the people at the very top of government set the ethic tone and the guiding principles by which the organization operates. In short, corruption at the top inevitably means that corruption will pervade the organization.

    Thus, when organizations like the DOJ consistently engage in prosecutorial misconduct, you cannot just say, “that’s just the way it is at the DOJ.” Wrong. It’s only that way when the President and his appointed leader at the DOJ WANT it to be that way. In short, the prosecutorial problem is a Obama-Holder problem. I’m not saying it would be different if Romney had become President. The fact is that neither Obama nor Romney have EVER stated that they would attack waste, fraud, mismanagement, and corruption in the US Government. And frankly, the American people have NEVER demanded that their presidential candidates attack any of those things. And they’ve certainly never demanded it of Obama at any point in time.

    And so, in the end, the American people are getting the “quality” of government that they ask for. Waste, fraud, mismanagement, and corruption will continue in full force without interference. And that includes prosecutorial misconduct at the DOJ.

  5. Magginkat, Don Siegelman is a political prisoner and I agree that everyone involved in his persecution (not a typo) should be in jail.

  6. Those corrupt prosecutors are RIGHTLY upset. After all, they earned their bones and expected to be PROMOTED for what they did. To all of us.

  7. Cont’d -Over 100 Attorneys General have joined the movement to Free Don Siegelman, saying what he was accused of has never been a crime in this country.

    Former Attorney General of New York Bob Abrams says the Siegelman case “cries out for commutation.” Karl Rove’s dirty hands all over this case.

  8. Ever heard of the Don Siegelman (Former governor of Alabama) Case. This is one of most brazen abuses of the justice system in our history and the so-called justice dept was in it up to their eyes. It involves Karl Rove, the Bush justice dept & Bush appointed Attorney generals, government contacting, Judge Fuller an earlier political opponent of Don Siegelman who should have never heard this case, jury misconduct and heaven only knows what else. .

  9. Substantitive procedural error.

    In this case that error would seem to diminish the punishment, not utterly wash away the finding on the merits of the wrongdoing.

  10. It was a violation of process, not of the facts. One co-worker does the review and makes the recommendation which must be followed? Sounds like the process needs some work.

  11. The DOJ prosecution had clear political consequences – Stevens lost his reelection bid when he would arguably have won absent DOJ interference.

    The prosecutorial abuse had far deeper implication than justice, fairness, integrity – it subverted our election process.

    On a side note, how often does a bar association sanction attorneys (or at least those attorneys with a modicum of common sense/people skills)?

    The only bar reprimands are to overly aggressive ambulance chasers, politically despised attorneys (that Illinois attorney who was a publicly declared racist), and crooks who are so egregious that nobody can ignore their transgressions.

  12. See the scales of justice….. Ever so softly swaggering…….good guys vs corrupt…. It’s getting hader to tell who is who…. Which is which….

  13. I keep unsubcribing but continue to recieve. Please do not send anymore emails, it is overload. Thank you

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