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."