Wednesday, February 24, 2010

Shocker of the Day: DOJ rarely disciplines its prosecutors

Let me refer readers to a good overview of deficiencies in federal oversight of prosecutorial misconduct by the DOJ Office of Professional Responsibility from the blog EmptyWheel, following up on analyses by Mike at Crime and Federalism and recent journalistic critiques. EmptyWheel is a partisan Democratic blog setting the stage for a series on torture politics, which is beyond Grits' purview. But their preliminary discussion of lax federal infrastructure overseeing DOJ prosecutors, relying mostly on OPR annual reports and recent testimony from DOJ's Inspector General, interested me much more.

To bottom line the concern: Very few federal prosecutors are disciplined by DOJ, even when judges found they engaged in serious misconduct. Further, DOJ's independent Office of Inspector General has no authority to investigate misconduct by Justice Department attorneys, whose misconduct is instead investigated by the Office of Professional Responsibility,
which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government.
In 2007, according to the most recent OPR annual report, DOJ received 906 complaints of misconduct by its attorneys but only opened investigations in 71 cases. Of those, they found negligence in 22 instances and intentional misconduct in only one, initiating discipline in just 14 cases, or just 1.5% of complaints.

What's more, it's not like all these dismissed allegations are coming from crackpots. An overwhelming majority (75%) of complaints resulting in investigations came federal judges, according to the annual report, so this low rate of affirmative findings either means quite a few judges are making false allegations against DOJ prosecutors, or else the OPR is a toothless watchdog. My money's on the latter.

According to the OPR annual report, the most common allegations investigated were:
  • Abuse of authority, including abuse of prosecutorial discretion: 23%
  • Improper remarks to a grand jury, during trial, or in pleadings: 16%
  • Misrepresentation to the court and/or opposing counsel: 17%
  • Failure to comply with Brady, Giglio, or Fed. R. Crim. P. 16 discovery: 12%
  • Interference with defendant's rights: 9%
But perhaps the biggest questions surround those complaints they chose not to pursue at all: What were their topics? How many came from judges, fellow prosecutors, etc.? I'm curious, for example, how many total complaints about Brady violations (failing to hand over exculpatory evidence) the OPR received, but they report tells us little about the majority of complaints OPR chose not to investigate.

I'm pleased EmptyWheel chose to address these questions, but it's important to keep in mind that these are institutional problems, not partisan ones. They're raising the issue in preparation for a critique of Bush torture policies and the failure of DOJ to condemn attorneys like John Yoo. But criticisms of the structural flaws in DOJ's ability to hold its attorneys accountable apply equally - indeed, perhaps even more directly - to less politicized, more workaday misconduct, a situation that without question persists in the Obama/Holder administration.

DOJ's Inspector General suggested in recent testimony to Congress that authority to investigate misconduct by DOJ attorneys should be made independent, shifting it under the OIG's domain. That might be a good start, but by itself it can't change departmental culture if DOJ leadership and supervisors aren't thoroughly committed to enforcing ethical obligations among prosecutors.

What should concern us most aren't the high-profile, exceptional cases of DOJ overlooking attorney misconduct, but the fact that the same culture of denial permeates the justice system, both at federal and state levels. (Don't believe it? In Texas our courts still want to execute you if the prosecutor and judge were sleeping together during your capital murder trial.)

In a related post, Tom Kirkendall at Houston's Clear Thinkers connected the dots between more mundane prosecutorial misconduct (his focus is on white-collar cases) and the partisan catfights in Washington over torture: "Our failure to hold governmental officials responsible for abuse of power toward our fellow citizens helped create the culture in which the leap to sanction torture against enemy combatants was a small one.," he lamented. "That culture will be very difficult to change."


Anonymous said...

Not surprising at all. Just another example of the continued incompetence of the federal government.

HadEnough said...

“or else the OPR is a toothless watchdog. My money's on the latter.”

I think that your money is safe and hope that you made a really large wager. Sounds like the fox is guarding the hen house.

“What should concern us most aren't the high-profile, exceptional cases of DOJ overlooking attorney misconduct, but the fact that the same culture of denial permeates the justice system, both at federal and state levels.”

Grits, you have nailed the crux of the matter. Until lying dishonorable prosecutors like AUSA Jason Ferguson and his cohorts who went after Ga. Defense Attorney Mark Shelnutt for the crime of being a defense attorney get the same attention of those involved in Blackwater, Broadcom and others of the same ilk, and they are all sanctioned for their actions I expect little to change. Even though federal judges like U.S. District Judge Clay D. Land in the Shelnutt case said from the bench that he was troubled and shocked by Ferguson’s actions and the trial ultimately resulted in a complete and total acquittal for Shelnutt, no further action was taken against the prosecutor. SCOTUS had a shot, via the Pottawattamie vs. McGhee case, to address and possibly solve the problem by removing prosecutorial immunity but it was not to be. They are still out there and still doing anything they can to get a conviction. Rules of law be damned.

The Justice Project said...

Failing to Punish Prosecutorial Misconduct Only Invites More... Read The Justice Project's blog on presecutorial accountability

Soronel Haetir said...

I suspect that the confirmation hierarchy of DOJ makes it a tough problem as well. DOJ is a very wide and not very deep department and an USA has significant authority of their own as well as being generally well connected political players. I would suspect that arrangement would make independence of investigators that much more difficult when compared to agencies with fewer political types. Someone who has gone through Senate confirmation may well feel their district is much more a private fief than a subordinate officer who just gets picked for a position.

Anonymous said...

The fox is guarding the hen house.

Anonymous said...

In about 1 month my boyfriend will be sentenced for to a 10 year mandatory minimum for a crime he was involved but did not commit to the level in which the Governmental claims. He never committed a crime, other than a DUI from 1998, which left him ineligible for a safety valve. He plead after 2 years. The Government offered him a cooperation deal and his lawyer advised him to take plea, despite his desire to want to go to trial. The Government induced him to plea on the day of the hearing for the motion to suppress physical evidence was to occur. One week later, he plead. For two more years, he attempted to cooperate but a DEA Agent thwarted his efforts between 3 agencies. He fired his first attorney after I got involved in his case. Apparently, his lawyer never put cooperation languate into the plea. I uncovered so much information, so many mistakes, so many cover-ups. A few months ago we fired his previous attorney and hired new counsel. We were aiming for ineffective assistance of counsel. Our new attorney decided bad faith would be the best road, despite our desire to go that route. Unfortunately, the motion was denied, but we did get on record the previous attorney admitting to the judge that he knew that there was an agreement for cooperation and that he lied at the plea colloquy and allowed his client to do the same. We were just informed by our new attorney that we need to wait until he is sentenced before we can file an ineffective assistance of counsel claim. We were never informed that ineffective assistance of counsel would have to happen on appeal. In addition, I had been pressing for 2 crucial pieces of discovery regarding arrest and post arrest reports interviews of the individual that set up my boyfriend. This person was a 4 time convicted drug felon, he was a fugative for 4 months and committed a 9 million dollar bank of america fraud crime under the Government's watchful eye. By the way, he was the Government's key witness. He was also the reason why the Government offered ever single co-defendant a "favorable" plea. Long story short, just caught my new attorney in a lie. Which is something that I am not going to get into now.

It was this weekend, that I discovered exactly how the system works, at least for my boyfriend.

The Attorney wants big bucks.
The DEA wants big busts.
The Prosection wants big wins.
The Judge count your sins.

I have two questions that if someone could answer I would greatly appreciate:

1. Who the hell protects us from these people?

2. I am filing a complaint with the Office of Inspector General. Is there any other agency I can file a complaint for governmental and prosecutional misconduct? Should I file it before or after he is sentenced?

My chances of trusting a complete stranger's advise are greater.

Thank you.

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