More on prosecutorial misconduct

I had thought I would be able to return to the subject of asset forfeiture reform by now, but breaking news on yesterday’s topic – prosecutorial misconduct – lead to other important breaking news today.

In yesterday’s blog, when I was espousing my theories of what has gone wrong to allow prosecutorial misconduct to flourish and suggested possible solutions, I overlooked one potential actor in the checks and balances – the Department of Justice’s watchdog.  It was easy to overlook, because for decades the Justice Department’s internal Office of Professional Responsibility has had complete autonomy to investigate or not investigate prosecutorial misconduct when complaints of misconduct surface against federal prosecutors.  From what I have seen, they do not perform a meaningful or objective role as watchdog — but act more as a damage control spin doctor, offering no transparency at all over their decision making process, much less the decisions themselves.

I had a case in the mid-1990s in which my client wanted me to file a complaint with the Office of Professional Responsibility. I asked some friends in D.C. whether that would be effective and they said “good luck” but my client said “do it” and he was paying me so I did. We spent a lot of time gathering the evidence and putting together affidavits, etc. and submitted it. As I recall, we got a form letter stating that they would be reviewing our evidence. We did not get a hearing of any kind, even telephonic. They eventually sent a form letter saying they had carefully reviewed all of the material we submitted and determined that the prosecutor had done nothing unethical or improper.

Then the prosecutor was really mad at my client.

Clearly an arm of the government that gives individual government attorneys so much power to wreck human lives should not be trusted to police themselves. After all, when so much power makes the individual prosecutors feel above the law, doesn’t the collective power of the institution also have an above-the-law attitude?

We have seen alleged prosecutorial misconduct wielded with audacity against members of Congress, producing such scandals as the misconduct-tainted prosecutions of Senator Ted Stevens of Alaska (Rep.) and Representative Don Siegelman of Alabama (Dem). Whether or not these Congressmen were actually guilty of the crimes for which they were accused, they both deserved a fair judicial process and trials unimpeded by unethical and dishonest conduct.

If prosecutors feel powerful and autonomous enough to defy ethical standards and corrupt the trial process to bring down members of Congress, then there is no functioning watchdog over the agency.

Fortunately, others are clamoring for reform.

Today the National Law Journal published an article DOJ Watchdog Wants Greater Attorney Ethics Oversight, reporting on the Department of Justice’s Office of the Inspector General’s report on November 10, 2014, Top Management and Performance Challenges Facing the Department of Justice – 2014.
The language of the OIG’s report is very dry but the reforms it is recommending are quite dramatic, including putting Justice Department  attorneys and the U.S. Attorney’s Office, under the investigative watchdog scrutiny of OIG.

The Department continues to face challenges regarding its handling of allegations of misconduct by Department attorneys. The Office of Professional Responsibility (OPR) has jurisdiction, by statute, to investigate allegations of misconduct against Department attorneys acting in their capacity as lawyers. The OIG has long questioned the carving out of this exclusive role for OPR as it is managed as a component of the Department, has no institutional independence, and lacks transparency in that it does not regularly release its reports and conclusions to the public. The independent, non-partisan Project on Government Oversight (POGO) issued a March 2014 report that was critical of OPR’s longstanding lack of transparency and recommended empowering the OIG to investigate misconduct by Department attorneys. The OIG’s strong record of transparency is vital to ensuring the Department’s accountability and enhancing the public’s confidence in the Department’s operations. Although a federal regulation, 28 C.F.R. 0.29e(a)(6), authorizes the OIG to request that the Deputy Attorney General assign to us a matter within the investigative jurisdiction of OPR, this procedure leaves the decision entirely to the Department leadership and, in any event, requiring the OIG to seek the Department’s permission before undertaking an investigation compromises our independence. For these reasons, we continue to believe that Congress should eliminate this carve-out from the OIG’s jurisdiction and support S.2127, bipartisan legislation that would amend the Inspector General Act to enable the OIG to investigate allegations of attorney misconduct.

Read the National Law Journal article for the background and significance of this suggested reform.

A bill pending in the Senate, The Inspector General Empowerment Act of 2014, S. 2127, would give the OIG jurisdiction to investigation complaints of attorney misconduct. Senator Mike Lee (R-Utah) said this about his bill, the Inspector General Empowerment Act.

The rules that apply to inspectors general in other federal agencies should apply at the Department of Justice…. Current law invites undue influence from the Attorney General’s office into the process and should be changed to ensure the integrity of investigations of misconduct within the Justice Department.

I think this is a step in the right direction. Having an independent body investigate prosecutorial misconduct certainly couldn’t hurt.

Brenda Grantland

Brenda Grantland is a private attorney in Mill Valley California, with 30 years’ experience primarily in asset forfeiture defense, as well as federal criminal appeals and victims rights and restitution. Brenda handles federal cases throughout the country, and frequently works with other attorneys or legal teams as a consultant or co-counsel.

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