An article in USA TODAY’s series “Misconduct at the Justice Department” uncovered 201 cases of federal prosecutorial misconduct since 1997 and found that federal prosecutors are unlikely to be fired when they commit misconduct.
Attorney General Eric Holder, who took over the Justice Department in 2009, has said the agency is moving to make sure it can more effectively prevent misconduct and better train prosecutors about the complex rules they must follow.
For years, however, says Joseph diGenova, a former U.S. attorney in Washington, D.C., the bottom line was that the government allowed lawyers “who should not be federal prosecutors to continue in that role. The record on discipline is very, very poor. The history of serious discipline is basically non-existent.”
Almost two years after a baby girl near Tampa vanished, federal prosecutors charged her parents with conspiracy and lying to investigators. The prosecuting attorney told the grand jury that there were recordings of the girl’s mother telling her husband: “The baby’s dead and buried. … The baby’s dead no matter what you say — you just did it.” But, everyone who heard the recordings quickly concluded that those statements were never uttered.
Although charges were dropped against the missing girl’s parents and a Justice Department investigation concluded that the prosecutor broke rules and mishandled the case, he was allowed to continue with the agency to work on civil cases. He ultimately quit and relocated to Tallahassee where he works as a defense attorney.
Department records found during the newspaper’s investigation suggest that similar mistakes usually result in a slap on the wrist and leave attorneys’ records untarnished. Since the Justice Department can conceal its own prosecutorial misconduct investigations from the public, it’s hard to know the full extent of the problem.
The Office of Professional Responsibility is tasked with investigating findings of prosecutorial misconduct, but most of its investigations have resulted in no punishment, with the agency concluding that misconduct was unintentional. And even when OPR learns of prosecutorial misconduct in a case, it doesn’t necessarily look into the prosecutor’s other cases to determine if it’s a one-time occurrence or if there is a precedent for misconduct.
“Government lawyers are likely to view the conduct most favorably to other government lawyers,” says Ellen Yaroshefsky, the head of Cardozo Law School’s Jacob Burns Ethics Center in New York. She said an outside watchdog is needed. “It’s human nature that you’re going to give the person the benefit of the doubt, because it could be you next. There just needs to be an independent evaluation of allegations of misconduct.”
Without stronger safeguards, this pattern of prosecutorial misconduct without consequences will continue.
Last night, Innocence Project Co-founder Barry Scheck appeared on CNN’s “AC360” to discuss prosecutorial misconduct.
Watch the full segment