Friday, May 25, 2012

"Compost Flows Downhill" (And the Senators Killed Caesar)


There's a lot of attention going to the characterizations of "laughable" and "pathetic" that Ted Stevens' lawyers have bestowed on the Justice Department's announcement of suspensions without pay of 40 and 15 days for two Assistant U.S. Attorneys involved in discovery violations in the bungled prosecution of the long-time U.S. Senator.  

What has gotten less notice than the nine-sentence broadside from Stevens' attorneys, however, is a 82-page, 316-footnote analysis of the prosecution's problems also released yesterday.   (The document appears at pages 77-158 of the link.)  This memorandum was written by Terrence Berg, a long-time federal prosecutor with the Professional Misconduct Review Unit who was initially assigned to recommend discipline for the line lawyers criticized most harshly in the report prepared by the Office of Professional Responsibility (OPR).    Berg's recommendation that Assistant U.S. Attorneys Joseph Bottini and James Goeke not face professional discipline for the discovery failures in the case was rejected by Justice Department higher-ups, but his reasoning and conclusions are interesting.

Berg pulls no punches in pointing out that the Ted Stevens prosecution was fouled-up.   "Staggering" is his word to describe "the sheer scope and breadth of the misconduct allegations" detailed in the OPR report.   Berg calls the OPR report "a monument inscribed with a myriad of admonitions as to 'how not to prosecute a high-profile public corruption case.'"

This career prosecutor does not, however, determine that Bottini or Goeke engaged in professional misconduct, either of the intentional or reckless variety.    Berg observes that it was a team of prosecutors that prosecuted Ted Stevens and a team that failed.  Berg does not see it as fair that the Justice Department decided to suspend without pay two players while letting the team's captain, manager, and general managers off the hook for the "supervisory failures" that Berg sees as helping to make the numerous discovery violations "almost inevitable."   

Berg names as responsible higher-ups Matthew Friedrich, the former Assistant Attorney General for the Justice Department's Criminal Division; Rita Glavin, the former Principal Deputy Assistant Attorney General for the Criminal Division; William Welch, the former Chief of the Criminal Division's Public Integrity Section; and Brenda Morris, the Public Integrity Section's Principal Deputy Chief.

Berg is particularly critical of the way the OPR report repeatedly gave Morris the benefit of the doubt while not granting the same consideration to lower-level lawyers in the case.    Morris was at the top of the trial team and had the most high-profile role among the prosecutors at trial, but Berg sees a "double standard" in her favorable treatment in the OPR report.

Berg concluded that "[T]he 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."  

More to come.

Note:    "Compost flows downhill" comes from Solomon Wisenberg's post of Tuesday, March 27, 2012 in the White Collar Crime Prof Blog.   And Julius Caesar was not assassinated by one or two Senators, but by a group of 60 or more who all joined in the attack that killed him.


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