In The News

JUSTICE DEPT. OFFICE TO PUNISH PROSECUTORS’ MISCONDUCT

By Brad Heath and Kevin McCoy, USA TODAY, Nov. 19, 2011

The Justice Department created a new internal watchdog office on Tuesday to make sure federal prosecutors face swifter and more consistent punishment if investigators find that they committed misconduct.

The change follows a USA TODAY investigation that identified 201 criminal cases in which federal courts had found that Justice Department prosecutors had broken laws or ethics rules — violations that put innocent people in jail and set guilty people free. Although each of the cases was so serious that judges overturned convictions or rebuked the prosecutors for misconduct, USA TODAY found that the department often took years to investigate what went wrong, and that prosecutors faced little risk of being fired.

Attorney General Eric Holder said in a statement Tuesday that while most federal prosecutors meet their ethical obligations, the current procedures for disciplining those found to commit misconduct “consume too much time, and risk inconsistent resolution.” He said the new unit “will help change that by providing consistent, fair, and timely resolution of these cases.”

The unit, called the Professional Misconduct Review Unit, will be responsible for disciplining career prosecutors when the department’s ethics investigators conclude that they engaged in intentional or reckless misconduct. Until now, those decisions had been made by the prosecutors’ supervisors, most often U.S. attorneys. The department has faced criticism for not doing enough to investigate and punish misconduct.

Holder wrote in a memo that those procedures “have resulted in delays” because the officials in charge of discipline are also busy with other things. The new unit will have to make decisions more quickly, and will also be able to report misconduct to state bar associations. It will review findings of misconduct that occur after it is fully staffed.

The new unit, which will make referrals to state bar association disciplinary authorities, will handle all findings of professional misconduct that occur after the unit is fully staffed, the memo said. “This is serious business. It’s a sign of a lack of faith in the behavior of U.S. attorneys around the country,” said Joseph diGenova, a former U.S. Attorney in Washington, D.C. “If things have gotten so bad that the department finds willful misconduct and you haven’t been able to figure that out, you’re out of the ballgame. The message is, ‘Manage your office and impose discipline, or we will.’ ”

Laurie Levenson, a former federal prosecutor who’s now a professor at Loyola Law School in Los Angeles, applauded the effort to segregate and speed the handling of the most serious misconduct cases. “Not all prosecutorial misconduct cases are alike,” she said.

Kathleen Ridolfi, director of the Northern California Innocence Project, said the Department of Justice should go further by adding independent legal experts to the disciplinary process.

“You still have this systemic problem of a mentality that prosecutors have to win,” said Joe Lawless, author of one of the first legal textbooks on prosecutorial misconduct. “You have to change that mentality.”

The announcement is the latest step Holder has taken over the past two years to address ethical lapses by the attorneys in charge of enforcing the nation’s laws. Those efforts came after the government’s failed corruption prosecution of former Alaska senator Ted Stevens, which ended in 2009 after the department conceded it had hidden evidence that could have undermined the case against him.

The judge who supervised Stevens’ trial launched his own investigation of the case, saying he did not trust the department to investigate itself. That review is still ongoing.

The department said the change followed a “comprehensive review” of disciplinary procedures. It did not disclose the results of that assessment.

It will still be up to the department’s Office of Professional Responsibility (OPR) to decide whether prosecutors have committed misconduct. USA TODAY’s investigation found that the office frequently characterized serious violations as mistakes, meaning the attorneys responsible for them were unlikely to face disciplinary actions. The office’s records show that its investigations typically take more than a year to complete.

Holder said in December that OPR “does a real good job” and that “the overwhelming majority of federal prosecutors in this country handle themselves in appropriate ways.” He named his chief of staff, Kevin Ohlson, to head the new misconduct unit.

JUSTICE DEPARTMENT BAD BOYS:  MORE THAN 650 CASES OF MISCONDUCT DOCUMENTED IN 12-YEAR PERIOD

By Dana Liebelson, Motherjones, March 14, 2014

Federal prosecutors, judges, and other officials at the Justice Department committed over 650 acts of professional misconduct in a recent 12-year period, according to a new report published by a DC-based watchdog group, the Project On Government Oversight. POGO investigators came up with the number after reviewing documents put out by the Department of Justice’s Office of Professional Responsibility (OPR). According to one little-noticed OPR document published last year, a DOJ attorney failed to disclose a “close personal relationship” with the defendant in a case he was prosecuting, in which he negotiated a plea agreement to release the defendant on bond. An immigration judge also made “disparaging remarks” about foreign nationals. POGO contends that this number is only the tip of the iceberg and OPR needs to release more information about this misconduct to the public.

“The bottom line is we just don’t know how well the Justice Department investigates and disciplines its own attorneys for misconduct when it occurs,” says Nick Schwellenbach, a contributor to POGO. “The amount and types of misconduct DOJ’s own investigators conclude has happened suggests more [information] should be public than is already, including naming names of offending prosecutors that commit serious misconduct.”

OPR is responsible for investigating ethics complaints at the Justice Department, but the office reports directly to the attorney general. POGO argues that this insular system might not be sufficient to provide effective oversight of prosecutor wrongdoing. Last year, for example, two federal judges issued court orders complaining that DOJ attorneys had misled them about the full scale of the NSA’s surveillance activities—but OPR was never aware of the complaints and didn’t investigate them even though a former OPR attorney said that they should have triggered an inquiry, according to USA Today.

Between fiscal year 2002 and FY2013, of the more than 650 documented cases of DOJ employee misconduct, 400 were characterized as “reckless” or “intentional” by OPR. In OPR’s latest report, from FY2012, the office received over 1,000 complaints and other correspondence about Justice Department employees (over half of these complaints came from incarcerated individuals) and opened 123 inquiries and investigations.

In one case from 2012, a Justice Department attorney falsely told a court that the government didn’t have evidence that a key witness suffered from an ongoing mental-health disorder—when the prosecutor did have that evidence, according to OPR. The attorney was suspended for two weeks and the state bar was notified. In another case, an immigration judge presiding over a case where a father and his daughter were fighting removal from the United States was found by OPR to have “engaged in professional misconduct by acting in reckless disregard of his obligation to appear to be fair and impartial” and to have made biased statements against immigrants. The judge was suspended for 30 days.

OPR isn’t responsible for disciplining employees; that’s up to others in the Justice Department. OPR also no longer publicly names Justice Department employees found to be conducting misconduct, although it did so for a brief period during the Clinton presidency. In 2010, the American Bar Association passed a resolution asking the Obama administration to release more information about Justice Department investigations, potentially including names, but so far, not much has changed.

“The department takes all allegations of attorney misconduct seriously, and that is why the Office of Professional Responsibility thoroughly reviews each case and refers its findings of misconduct to relevant state bar associations when the rules of the state bar are implicated,” says a Justice Department spokeswoman. “OPR also regularly provides detailed information on the resolution of complaints to the defense attorneys, judges, and others who send allegations of misconduct to the department.”

A bill proposed on Thursday by Sens. Mike Lee (R-Utah) and Jon Tester (D-Mont.) would overhaul how misconduct is investigated at the Justice Department. Right now, only OPR is allowed to look into ethics complaints, instead of the Justice Department’s Office of Inspector General, which is widely considered to be more independent. The senators’ bill would move that authority to the IG’s office. Sen. Lisa Murkowski (R-Alaska), who supports the bill, says: “When Americans pledge to abide by ‘liberty and justice for all,’ that does not mean that those pursuing justice can creatively apply different standards or break the rules to get convictions—it means that in America everyone is held equally accountable.”