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Judge overturns suspensions for Stevens prosecutors

Charlie Savage
ERIK HILL / Anchorage Daily News Joseph "Joe" Bottini, Assistant U. S. Attorney
Erik Hill
ERIK HILL / Anchorage Daily News Joseph "Joe" Bottini, Assistant U. S. Attorney
Erik Hill

WASHINGTON -- An administrative judge has overturned the suspensions of two federal prosecutors whom the Justice Department had tried to discipline for failing to turn over evidence that might have helped the defense in the botched corruption trial against Sen. Ted Stevens, R-Alaska.

Last year, the department found that the two prosecutors had engaged in reckless -- though not intentional -- professional misconduct and ordered them to be suspended without pay. One, Joseph Bottini, was suspended for 40 days, and the other, James Goeke, was suspended for 15 days.

The legal team that defended Stevens called those suspensions "pathetic" and inadequate, saying the department had "demonstrated conclusively that it is not capable of disciplining its prosecutors." But the two prosecutors contended that the discipline was too severe and appealed to the federal Merit Systems Protection Board, an agency that hears disciplinary cases involving career civil servants in the federal government.

In a 29-page ruling released late Friday night, the administrative judge, Benjamin Gutman, overturned the suspensions. He ruled that the Justice Department had violated its own procedures, under the Professional Misconduct Review Unit, which called for a rank-and-file lawyer to decide whether professional misconduct had occurred.

The lawyer originally assigned to review the matter, Terrence Berg, had concluded that the mistakes did not rise to the level of professional misconduct. The unit's chief, Kevin Ohlson, disagreed and redid the analysis. Ohlson said the matter did rise to the level of professional misconduct, but Gutman said his intervention was improper.

The Justice Department will now have to decide whether to appeal the judge's decision. A department spokeswoman declined to comment.

Lawyers for the two prosecutors had also argued that the discipline handed down was excessive compared with what other prosecutors had received for similar misconduct, and that Berg was right in his characterization of the mistakes. Gutman did not issue any rulings on the merits, but did say there was "considerable question whether the suspensions would have survived the disparate-penalties analysis" as well.

Kenneth Wainstein, a lawyer for Bottini, portrayed the ruling as a vindication of his client and of the original, more forgiving analysis by Berg, who was later appointed as a U.S. District Court judge.

Federal prosecutors during the Bush administration charged Stevens with failing to report on ethics forms that an oil services firm had remodeled a house he owned. He was convicted shortly before the 2008 election and lost his re-election bid. That helped Democrats briefly achieve a filibuster-proof majority in the Senate, enabling them to pass a law overhauling the nation's health insurance system.

It emerged that prosecutors had failed to disclose information, like conflicting statements by witnesses, that might have helped Stevens win acquittal. Attorney General Eric H. Holder Jr., then new to the post, asked the trial judge to throw out the conviction.

Stevens died in a 2010 plane crash.

Separate investigations by a court-appointed lawyer and by the Justice Department later portrayed a hasty and insufficiently supervised preparation for the trial. The reports criticized Bottini and Goeke, while largely withholding judgment about a third prosecutor, Nicholas Marsh, who committed suicide after the case fell apart.

 

 


By CHARLIE SAVAGE
The New York Times