OPR Report Finds ‘Reckless’ Misconduct by AUSAs in Botched Stevens Case
By Elizabeth Murphy | May 24, 2012 4:14 pm

Note: This story was updated.

The Justice Department’s internal misconduct investigation of the prosecutors involved in the botched Ted Stevens case found that the two Assistant U.S. Attorneys on the team engaged in “reckless professional misconduct,” Ronald Weich, Assistant Attorney General for Legislative Affairs, said on Thursday.

Joseph Bottini and James Goeke, both Alaska Assistant U.S. Attorneys at the time, were found to have failed to hand over exculpatory evidence to the defense, but their actions were not intentional, according to a letter from Weich to the House and Senate Judiciary committees. OPR’s 672-page report can be viewed here.

Ultimately, Bottini is facing 40 days’ suspension without pay and Goeke is facing 15 days’ suspension without pay, according to the letter. The Office of Professional Responsibility, the department’s internal ethics watchdog, also concluded that the government violated its obligations under the Constitution and department policy to disclose evidence helpful to the defense. The AUSAs are still entitled to appeal the disciplinary decisions, the letter states.

The findings disclosed Thursday largely mirror those of Henry F. Schuelke, an outside court-appointed investigator, who concluded earlier that Bottini and Goeke had “willfully concealed” evidence from the defense. Schuelke said he did not believe Bottini and Goeke should be held criminally liable. But, while the latest findings are somewhat anticlimactic, they nevertheless underscored the seriousness of the prosecutors’ missteps in the pursuit of Stevens, especially the conclusion that two prosecutors of previously impeccable reputations engaged in “reckless misconduct.”

The other prosecutors investigated by OPR were William Welch, then the head of the Public Integrity Section, and Criminal Division trial attorneys Brenda Morris and Edward P. Sullivan. OPR did not make any findings about Justice Department lawyer Nick Marsh, who committed suicide in 2010.

While OPR made no findings of professional misconduct with respect to Welch, Morris and Sullivan, it did conclude that Morris “exercised poor judgment” by failing to supervise the disclosure review. Chuck Rosenberg, Morris’s attorney, declined comment on the report’s release on Thursday.

Attorney’s for Welch, Sullivan, Marsh and Goeke could not be immediately reached for comment.

The final decision rested with Associate Deputy Attorney General Scott Schools after some internal debate over the length of the punishment and the merits of the misconduct findings all together.

After the OPR report was finalized in August 2011, it was forwarded to the department’s Professional Misconduct Review Unit, which determined disciplinary proposal for Bottini and Goeke. PMRU attorney Terrence Berg, however, concluded that he “disagreed substantively with OPR’s conclusion that the AUSAs committed professional misconduct,” according to Thursday’s letter.

Berg submitted his findings to the PMRU chief, Kevin Ohlson. But Ohlson “remained convinced that the OPR findings of misconduct were supported by the evidence of the law and determined it would be inappropriate to permit Mr. Berg to reject those findings,” according to the letter.

After approval from the Deputy Attorney General, Ohlson conducted his own review of the matter and issued a disciplinary proposal recommending Bottini be suspended for 45 days and Goeke for 15.

Bottini and Goeke contested Ohlson’s recommendations, and ADAG Schools ultimately issued his own proposal this Wednesday. Schools agreed with OPR’s findings of misconduct, but he disagreed on one portion of the argument with regard to Bottini, cutting the punishment from 45  to 40 days’ suspension without pay, the letter states. Schools did not find that Bottini “exercised poor judgment” by failing to inform his supervisors of a potentially misleading letter.

Both prosecutors have said Schuelke’s findings are flawed, pointing to larger lapses in organization and leadership among the trial team as the greater area of dysfunction. Bottini’s attorney, Ken Wainstein, said the important thing to note is that the department did not determine the actions were “intentional.”

“The findings by OPR, Terry Berg and Scott Schools all establish definitively that the special prosecutor was completely off base when he accused Joe of intentionally violating his discovery obligations,” Wainstein told Main Justice.

Weich said in his letter that this type of misconduct is “not typical,” saying that in the past 10 years about one-third of the department’s 800,000 cases have required an inquiry of misconduct by OPR. Of those, less than .03 percent are related to discovery violations. “When there is even a single lapse, we must, and we do, take it seriously,” Weich wrote.

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.

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said in a statement that he plans to hold a hearing on the OPR findings on June 6.

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