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On April 9, Prof. Bennett Gershman wrote a piece for the Huffington Post about the decision of an administrative judge to reverse the suspensions of two federal prosecutors for what he calls “flagrant misconduct” in their prosecution of the late Alaskan senator Ted Stevens. Prof. Gershman argues that the “convoluted opinion of the administrative judge provides a revealing picture of why federal discipline of prosecutors for their misconduct is so dysfunctional.” His comments are re-posted in full below.

Professional Discipline of Federal Prosecutors Reaches a New Low

By Professor Bennett Gershman, Pace Law School; Posted: 04/09/2013  3:57 pm

An administrative judge has vacated suspensions of two federal prosecutors who were disciplined by the Justice Department for their flagrant misconduct in prosecuting and convicting the late Senator Ted Stevens. The two prosecutors – James Goeke and Joseph Bottini – were excoriated by the trial judge, Federal District Judge Emmet G. Sullivan, for their willful and repeated acts of misconduct.  (A third prosecutor, Nicholas Marsh, committed suicide after the case unraveled). Attorney General Eric Holder believed that the misconduct was so severe that he asked that the conviction be vacated and the charges dismissed. Henry Schuelke, a private lawyer appointed by the trial judge to see if a contempt charge against the prosecutors was warranted, conducted a two-year investigation, reviewed over 128,000 documents, and issued a scathing 514-page report in which he concluded that the prosecution of Senator Stevens was “permeated by the systematic concealment of significant exculpatory evidence which would have corroborated Stevens and seriously damaged the credibility of the government’s key witness.” The Justice Department’s Office of Professional Responsibility (OPR) conducted its own investigation and concluded that the prosecutors had engaged in reckless misconduct and ordered them suspended for 15 and 40 days respectively.

The administrative judge has now vacated those suspensions. It is not  possible to reconcile the result of the administrative judge’s ruling with the conclusions of Judge Sullivan, Attorney General Holder, the Schuelke Report, and the OPR.  Indeed, the Schuelke Report is probably the most extensive post mortem of a criminal trial ever in the way it analyzes the prosecutors’ conduct and mindset based on their private emails, notes, memos, conversations, court filings and courtroom arguments, as well as their depositions, and which reveals quite powerfully their sordid and clandestine actions to win a criminal conviction at all costs. The Report methodically and exhaustively dissects the way the prosecutors manipulated flimsy, ambiguous, and unfavorable evidence, systematically concealed exculpatory evidence from the defense and jury, and thwarted defense attempts to locate favorable evidence. If anything, the Justice Department’s imposition of the rather modest suspensions on the prosecutors was grossly inadequate and disappointing. And now even those meager suspensions have been removed. Why?

The convoluted opinion of the administrative judge provides a revealing picture of why federal discipline of prosecutors for their misconduct is so dysfunctional. The judge concluded that the disciplinary proceedings by the Professional Misconduct Review Unit (PMRU), the body responsible for disciplining prosecutors after the OPR finds misconduct, contained a “harmful procedural error” which prejudiced the prosecutors and required the suspensions to be vacated. Trying to describe this so-called “prejudicial error” requires a serious and steady grip on reality, because the judge’s reasoning is unprincipled.

According to the PMRU policy, a Justice Department attorney assigned to the unit makes an initial decision on the appropriate punishment, either a reprimand, suspension, or removal. This attorney – hardly an independent decision-maker but rather a colleague of the prosecutors being reviewed – “became convinced that the prosecutors had not committed professional misconduct” and concluded that he did not have the authority to propose any discipline. Given the OPR’s finding that the Stevens’ prosecutors had engaged in reckless misconduct, and given the fact that the attorney assigned to propose discipline did not believe that any discipline was warranted, the Justice Department, pursuant to PMRU policy, appointed the chief of the PMRU to review the matter and impose discipline if he believed discipline was warranted, which he did – the 15 and 40 day suspensions.

But the administrative judge, in contravention of unambiguous language spelling out the policy of the PMRU which authorizes the chief of the unit to “issue or propose disciplinary action,” ruled that the chief of PMRU has no authority to impose discipline after his underling has decided that no discipline is  warranted when, in the opinion of the underling, the Stevens’ prosecutors had done nothing wrong to warrant discipline. By ignoring the clear-cut policy that authorizes the chief of the unit to overrule his subordinate and impose discipline if he believes discipline is warranted, as well as ignoring plain common sense, the administrative judge, using Alice in Wonderland reasoning, ruled that since the initial attorney “had not made a final decision about the level of discipline” (and of course he made no final decision since he did not believe that any discipline was warranted in the first place), the chief of the unit was disabled to take any action on his own, even if he believed that misconduct had been committed (as the OPR had concluded), and discipline was warranted. In other words, the underling, not a particularly independent and unbiased decision-maker, gets the last word on official policy.

Hopefully, the Justice Department will appeal this preposterous decision, both to vindicate the soundness of its own disciplinary policy and procedures, however impotent they are, and to counteract the absurd claim of the disciplined prosecutors that they have been “vindicated” by the administrative judge’s ruling.

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