Tuesday, May 29, 2012
I have not read the 672-page Department of Justice report finding that federal prosecutors Joseph W. Bottini and James A. Goelke acted recklessly -- but not intentionally -- in withholding exculpatory information from Sen. Ted Stevens at his trial for corruption. Nor have I read the 525-page Scheulke/Shields report commissioned by Judge Emmet Sullivan that concluded to the contrary that their misconduct was intentional. I therefore am hesitant to say that the DOJ finding was wrong.
I have little hesitancy, however, in criticizing the lenient punishment meted out by DOJ. Bottini was suspended without pay for 40 days, Goelke for 15. Even if, as the DOJ report contends, they did not act intentionally but did act with "reckless disregard" of their constitutional obligations to provide exculpatory evidence, the slap on the wrist of a loss of net income from $5,000 to $12,000 respectively (along with a compensating two to seven weeks of extra vacation) appears inappropriate.
The determined "reckless" conduct was, among other things, the failure to disclose evidence concerning Stevens' willingness to pay for the renovations in question, and a contractor's expectation that the cost of the renovations would be added to Stevens' bill, evidence central to the case. Its disclosure might well have prevented Stevens' conviction, loss of reputation and Senate seat, and (but for his death in a plane crash) probable imprisonment.
If a truck driver causes serious personal injury by reckless driving, is there any doubt he would be fired? The injury to Senator Stevens was serious; the punishment was far too gentle.
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In a way, the finding of reckless misconduct reflects worse on DOJ than a finding of intentional misconduct. According to the DOJ report, these were not rogue prosecutors deliberately concealing evidence. Rather, they were seasoned and respectable prosecutors who recklessly ignored a most basic constitutional obligation, not to conceal exculpatory evidence. The finding leads to serious questions about DOJ's training and professionalism and leads me to wonder (again) how many serious Brady violations by other seasoned and respectable prosecutors go undetected.