Report Documents Prosecutorial Misconduct

Over the last 12 years, hundreds of federal prosecutors and other Department of Justice employees have been involved in professional misconduct, including misleading courts, withholding evidence that could have helped defendants, abusing their power and violating constitutional rights, according a report released today by the Project On Government Oversight.

The records, which POGO obtained through the Freedom of Information Act and from and the Department’s Office of Professional Responsibility (OPR), show that from fiscal year 2002 through fiscal year 2013, OPR documented more than 650 infractions, including more than 400 that OPR categorized as intentional or reckless.

But the public would be hard-pressed to know which Justice Department attorneys have crossed ethical or legal lines because OPR, as a matter of policy, doesn’t release identifying information in its reports.

“The lack of transparency insulates the Justice Department from meaningful public scrutiny,” said Danielle Brian, POGO executive director. “Our findings raise serious concerns that the Attorney General’s Office isn’t aggressively overseeing or disciplining its bad apples.”

In one case, a prosecutor developed a “close personal relationship” with the defendant in a case he was prosecuting, “had numerous personal contacts” with the defendant without the consent of the defendant’s lawyer, and, without telling his supervisors at the Justice Department, negotiated a plea agreement permitting release of the defendant from custody.

In another case, a Department attorney was assigned a criminal case with 15 months remaining under the statute of limitations, the amount of time the government is given by law to file charges. He allowed the “clear and unambiguous” time limit to expire without filing charges or alerting the Department about the impending deadline so it could decide what to do. The Department gave the attorney “a letter of admonishment.”

In a third case, a Department attorney failed “to timely disclose to the defense a tape recording of the crime despite repeated defense requests for the information,” and falsely told the court that the government had no evidence that a key witness had been diagnosed with a mental illness. The Department gave the attorney a 14 day suspension.

POGO recommended that the Department notify relevant state bar authorities of prosecutorial misconduct, post findings of professional misconduct online for public inspection, include details of wrongdoing and what corrective and disciplinary actions aware taken, and empowering the Department’s Office of the Inspector General to investigate misconduct by Department attorneys.

Legislation introduced by Senator Mike Lee (R-Utah) would address one of those recommendations by amending federal law to give the Inspector General jurisdiction to investigate allegations of wrongdoing against Department attorneys. Sens. Charles Grassley (R-Iowa), Lisa Murkowski (R-Alaska) and Jon Tester (D-Mont.) are co-sponsors.

Under current law, the Inspector General must turn cases of wrongdoing over to the Justice Department’s Office of Professional Responsibility.

POGO said that the IG has far more independence than does OPR and should not be prevented from conducting oversight of any misconduct at the Deaprtment.

“The rules that apply to inspectors general in other federal agencies should apply at the Department of Justice,” said Sen. Lee, who sits on the Senate Judiciary Committee. “Placing this responsibility under the OIG increases government transparency and ensures that instances of abuse will be handled in a timely and responsible manner.”

“Inspectors General are true watchdogs who save taxpayer dollars and help deliver better services to Americans,” Senator Tester said. “This bill is a common-sense measure that makes sure taxpayers are getting the level of service they expect and increases oversight of an agency that has enormous powers under the Patriot Act.”

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