Washington, DC (May 24, 2012) – The U.S. Department of Justice revealed today the only two disciplinary actions it has taken in the investigation of professional misconduct leading to the indictment and conviction of the late senator from Alaska, Ted Stevens.
Assistant U.S. Attorney Joseph W. Bottini, a lawyer with over 25 years of service, has been suspended for 40 days without pay. AUSA James Goeke, an attorney with eight years experience, received a 15-day suspension. A copy of Assistant Attorney General Ronald Weich’s May 24 letter explaining the disciplinary actions is here.
Specifically, the DOJ’s Office of Professional Responsibility (OPR) found that Assistant U.S. Attorney Joseph W. Bottini:
- failed to disclose information provided by prosecution witness Bill Allen that was inconsistent with Allen’s later interviews and trial testimony, information that was clearly Brady material, and failed to correct Allen’s testimony at trial;
- failed to disclose information in the possession of the FBI and the IRS regarding Stevens’ willingness to repay VECO for the renovations; and
- failed to disclose information provided to the government by a VECO witness, Robert Williams, that he thought VECO’s costs would be added to the contractor’s invoices before the invoices were sent to Stevens.
The OPR also found that AUSA James Goeke engaged in reckless professional misconduct by failing to disclose the Williams information to the defense.
Reasonable minds may differ as to whether the punishments fit the crimes. The real issue is the problem some federal prosecutors have with providing fair and complete discovery in criminal cases where lives and liberty are at stake. Bottini and Geoke will get more chances to try cases and purge their misconduct. Ted Stevens and many others will never regain their lives, their reputations, and their liberty and their assets, because some prosecutors will not follow the rules.
Although OPR did not find sufficient evidence to conclude that Bottini’s and Goeke’s reckless professional misconduct was intentional, bipartisan legislation is pending in the United States Senate designed to prevent this kind of misconduct in the future, intentional or not. The bill was introduced on March 15 of this year, the same day as the release of the of the special prosecutor’s report on the wrongful prosecution of the late Senator Ted Stevens (R-Alaska). It is entitled the “Fairness in Disclosure of Evidence Act of 2012” and its lead sponsors are Senator Lisa Murkowski (R-Alaska) and Senator Dan Inouye (D-Hawaii). (A link to the legislation can be found here.)
As NACDL President Lisa Monet Wayne explained the day the Stevens report was released and this important legislation was introduced, “The duty to provide favorable evidence has often been misunderstood or ignored. Even well-intentioned prosecutors lack the clear statutory guidance necessary to ensure the full and prompt disclosure to the defense of favorable evidence. That lack of disclosure contributes to unjust and wrongful prosecutions and convictions. This legislation fixes that problem,” adding “The ‘Fairness in Disclosure of Evidence Act of 2012’ provides clear and meaningful standards governing the prosecution’s duty to disclose any and all evidence that could help the accused defend her case. Its passage would represent a giant step forward in improving the fairness and accuracy of our criminal justice system.”
AAG Weich claims that only .03 percent of DOJ’s internal professional misconduct investigations over the past decade arose out of discovery violations. Without disputing the DOJ’s calculations, it is the nature of a discovery violation to go undiscovered, particularly evidence that is peculiarly available to only one party. The Fairness in Disclosure of Evidence Act would provide a bright line standard for prosecutors to prevent future miscarriages of justice.
In addition to NACDL, this legislation is supported by the American Bar Association (ABA), the American Civil Liberties Union (ACLU), the Constitution Project, and the Institute for Legal Reform at the U.S. Chamber of Commerce.
NACDL has worked for years seeking sensible discovery reform in the context of criminal prosecutions. A link to NACDL’s video “America Needs Sensible Discovery Reform,” as well as a wealth of materials on the subject, can be found at www.nacdl.org/discoveryreform.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.