Terrence Berg, a longtime federal prosecutor, offered a different view on the mistakes made by the prosecution team in the failed Ted Stevens case. Indeed, he argued in a memo released Thursday that while it seemed no one engaged in intentional misconduct, it was clear that the entire team — including the so-called “front office” of the Criminal Division — had a hand in the failed case that has become a black eye for the Justice Department.
Berg, an attorney with the Professional Misconduct Review Unit, was tapped to examine the Office of Professional Responsibility’s findings in its exhaustive review of the botched corruption case. The unit was formed in 2011 to handle disciplinary actions against department attorneys whom OPR has found committed intentional or reckless misconduct.
Berg “disagreed substantively” with OPR’s conclusion that the two Alaska Assistant U.S. Attorneys in the case engaged in “reckless professional misconduct” during the discovery process. OPR determined in its report that the AUSAs, Joseph Bottini and James Goeke, should have handed over exculpatory, or favorable, evidence to the defense during trial. These findings are echoed in a court-appointed special investigator’s report, which found that Bottini and Goeke engaged in “willful concealment” of evidence, but stopped short of saying they should be held criminally liable.
Berg came away with a different perspective after reviewing the boxes upon boxes of evidence. (Berg’s full memorandum can be viewed under Exhibit B in this document.)
“After having labored and reflected on this record with every iota of concentration and judgment that I can muster,” Berg wrote in his PRMU report, “I come away with the conviction that the failures that led to the collapse of the Stevens prosecution were caused by team lapses rather than individual misdeeds, with origins in inept organizational and management decisions that led to a hyperpressurized environment in which poor judgments, mistakes and errors compounded one another and made it almost inevitable that disclosure violations would occur.”
Berg wrote that he believed Bottini and Goeke exercised “poor judgment” but wrote that he thought it was incorrect to characterize their actions as “reckless misconduct.”
Berg is known as a Justice Department troubleshooter. Almost his entire career has been with the Michigan U.S. Attorney’s office, which he joined not long after graduating from Georgetown University Law Center in the mid-1980s. He ultimately served as the acting head of the office from 2008 to 2010. Before joining the misconduct review office, he was detailed to the U.S. Attorney’s office in the Middle District of Georgia in an attempt to bring order to an under-performing outpost. Last month, President Barack Obama nominated him to serve on the federal bench.
Berg, as the PMRU attorney reviewing the findings, had the job of determining what punishment Bottini and Goeke ought to receive for their roles in the botched case. Ultimately, PMRU Chief Kevin Ohlson overrode Berg’s conclusions, issuing his own and recommending suspension without pay for both AUSAs. Bottini received 40 days suspension without pay, and Goeke received 15. Both still have the ability to appeal that ruling, and Bottini has already signaled that he will do so.
Berg’s memo, though, offers a glimpse into the Justice Department’s own internal debate over how to handle an explosive case.
“Terry Berg’s memo nailed it,” Ken Wainstein, Bottini’s attorney, told Main Justice. “He brought to the task a longtime prosecutor’s clear-eyed understanding of trial dynamics and saw that these were mistakes that were made under very trying and chaotic circumstances.”
Wainstein, a former top Justice Department official himself, said he gives Berg “a lot of credit for having the backbone to call it as he saw it.” With Congress and other leaders calling for heads to roll, it must not have been easy for Berg to stick to his guns, he said.
On top of standing with his convictions, Berg rendered the full — and correct — picture, Wainstein argued. The larger deviation, though, is the question of intent. At no step in the process did anyone at the Justice Department find Bottini and Goeke to have “willfully” concealed evidence, as special investigator Henry Schuelke suggested in his report.
“The findings by OPR, Terry Berg and [Associate Deputy Attorney General] Scott Schools all establish definitively that the special prosecutor was completely off base when he accused Joe of intentionally violating his discovery obligations,” Wainstein said.
Goeke’s attorney could not be immediately reached for comment.
Stevens was convicted in federal court in Washington, D.C., in 2008 of failing to disclose gifts on his public financial forms. At the time the longest-serving member of the Senate, the Alaska Republican lost his Senate seat shortly after his conviction. In 2009, Holder asked the court to dismiss the charges after an internal Justice Department investigation found that prosecutors had withheld exculpatory evidence from the defense in violation of Steven’s constitutional rights.
Berg laid out his argument in three main points: the case was prosecuted by a team, thus the team should be held responsible for violations; the supervisors’ conduct had equal if not more bearing on the flawed disclosure process; and the Alaska AUSAs exercised poor judgment, but that did not rise to the OPR definition of “reckless misconduct.”
The former acting Detroit U.S. Attorney takes a holistic approach to the breakdown, and ultimate failure, of the trial team. In a footnote, Berg writes that “poor decisions” made by the front office of the Criminal Division at Main Justice helped in “creating an environment in which disclosure violations were more likely to occur.”
Former Assistant Attorny General for the Criminal Division Matthew Friedrich and former Principal Deputy Assistant Attorney General for the Criminal Division Rita Glavin were the leaders of the front office and are also responsible for the disclosure violations, Berg wrote.
So were the other members of the trial team: Former Public Integrity Section Chief William Welch, PIN Deputy Chief Brenda Morris and PIN trial attorneys Nicholas Marsh and Edward Sullivan, he concluded.
“Although there is no question that these team members played different roles and had greater or lesser degrees of responsibility for causing or permitting the disclosure violations to occur, each member, at some point or another, was in a position to take actions that could have lessened the likelihood of the disclosure violations occurring,” Berg wrote. “But they did not do so.”
Berg wrote that this stance does not mean he believes members of the team committed professional misconduct — it merely means that it is difficult to pinpoint just two people in such a complicated set of circumstances, he wrote.
“The team as a whole, and particularly the team’s managers in the Department of Justice, should be held fully responsible in my view, both collectively and as individuals, for the disclosure violations and other failures and mistakes that occurred in this case,” the federal prosecutor wrote. “Conduct by the supervisors was of equal or comparatively greater consequence in causing the disclosure violations and created a unique and extremely difficult set of circumstances under which the line attorneys were required to function.”
Berg also mentioned the intense pressure on the Justice Department to clean house after such an embarrassing episode. Ultimately, he brushed it aside.
“I also recognize that some may see this result as insufficient because of a felt need that some federal prosecutor should be punished or castigated because of the many disclosure violations that occurred, or because the judge who presided over the case concluded that misconduct happened, or simply because a high profile prosecution of a U.S. Senator had to be dismissed due to Brady violations,” he wrote.
“Just as OPR did not give any heed to these sorts of concerns when it found not a single example of intentional misconduct by any prosecutor, and only three findings, against only two of the attorneys, of reckless misconduct, so I cannot and do not consider such pressures,” Berg wrote.