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April 8, 2009

Should we blame bad apples or a bad culture for federal prosecutors gone wild?

In the wake of Judge Emmet Sullivan's strong rebuke of federal prosecutors when setting aside the conviction of former Senator Ted Stevens (basics here), the media are starting to talk more broadly about misconduct by federal prosecutors.  For example, the Wall Street Journal has this piece, headlined "Justice Department Unit Is Again the Focus of Scrutiny," which includes this notable passage:

Todd Foster, a former federal prosecutor in Tampa and Houston and a former Federal Bureau of Investigation agent, questions whether the case would have been re-examined as closely if it hadn't involved a U.S. senator. "My question is what happens to the rest of us?" he asked. "What happens when the person doesn't have the resources Sen. Stevens had?  What happens to those cases that don't reach the attorney general?"

And Politico has this lengthy and effective article by Josh Gerstein headlined "Fed judges are fed up."   It includes these potent quotes:

One veteran trial lawyer who practices in Washington said long-serving judges like Judge Sullivan are often deeply outraged by government misconduct because they realize how many defendants have seen their fates sealed based on promises or assurances from prosecutors. 

“Judges that have been on the bench that long rely on the prosecutors, they rely on the government attorneys, because they have to,” said the longtime litigator, who asked not be named. “When their confidence is shaken because of something they’ve seen, suddenly it dawns on them that they’ve been presiding over all these cases all these years and this might be the tip of the iceberg, maybe the wool has been pulled over their eyes. It’s disconcerting.”

Others said the failings were likely to be more widespread than just the Public Integrity Section, at the heart of the Stevens prosecution. ““You would think if any section of the Department of Justice would know how to comply ... it would be that section,” said a lawyer who regularly faces off with DOJ attorneys.

Because I tend to view a lot of misconduct as the result of a bad culture rather and not just bad apples, I cannot help but also wonder and worry if we are now only seeing the tip of the prosecutorial misconduct iceberg.  I want like to believe that ugly stories of federal prosecutorial misconduct are aberrations, but maybe I need to become even more cynical about whether the supposed "good guys" in the criminal justice system really are putting a commitment to justice ahead of a commitment to winning at all costs.

April 8, 2009 at 10:43 PM | Permalink


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The culture is that of a criminal cult enterprise. Even in the absence of any misconduct, the most upright practice of law is a crime. At the very least, the utterance of any supernatural, garbage, core doctrine represents out of control insurrection against the Constitution. The insurrection justifies the arrest of the entire hierarchy of the criminal cult enterprise, the briefest of trials, and the summary executions of the internal traitors, right outside the courthouse.

Posted by: Supremacy Claus | Apr 8, 2009 10:53:29 PM

Doug - I've blogged a lot about prosecutorial misconduct over the last couple of months at www.federalcriminaldefenseblog.com. As a former federal prosecutor, I was never a big fan of Attorney General Janet Reno, but whenever she spoke to the Criminal Chiefs (about once a year), she always emphasized that we were to follow the evidence, then fairly apply the law to those facts. My view is that the Department of Justice too long suffered under AG Gonzalez from any direction, and no leadership. We are now seeing the fruits of that poisonous lack of leadership. No doubt there are a lot of good AUSAs out there, but we all need leadership and we all need direction, particularly, when given almost unbridled power. I really do believe that the speech in To Kill a Mockingbird is true - that court's are the great levelers in our society.

Posted by: Tom Withers | Apr 9, 2009 12:00:48 AM

In any situation where a win/lose ratio is used to determine rank, social status, and financial compensation there is a temptation to cheat. Combine that with laws that protect the prosecutor from misconduct and/or little oversight you end up with breeding grounds for "bad culture".

Posted by: MarkM | Apr 9, 2009 12:14:17 AM

Mr. Withers. Thank you for that thoughtful comment. I agree that courts can play a leveling role, but I think it's too easy to pick on federal prosecutors.

"Judges that have been on the bench that long rely on the prosecutors, they rely on the government attorneys, because they have to,",

No, actually they don't have to do that; they choose to do it. The judge is a neutral arbitrator of the truth and a defender of the process. The word of the prosecutor is no better or worse in the abstract than the word of the defense attorney. I don't think the problem is the prosecutors themselves so much as it is the willful blindness of federal judges, a large percentage of which a former prosecutors themselves. I think it is too little remarked upon that judges face significant challenges when they go from the role of a prosecutor to the role of the judge. Those roles require very different things out of people and a very different attitude to the law and what's happening in the court room.

"suddenly it dawns on them that they’ve been presiding over all these cases all these years and this might be the tip of the iceberg, maybe the wool has been pulled over their eyes."

If the wool was pulled over their eyes, they need to look to their own behavior first. The prosecutor and government attorneys may have supplied the wool, but it was the judge's own two hands that were doing the grabbing and pulling.

Posted by: Daniel | Apr 9, 2009 1:28:03 AM

All self-dealt lawyer and judge immunities must end. It's not just that they are self-dealing, cult criminals. It's that the sole justification of immunity is that the Sovereign speaks with the voice of God. That justification is prohibited in our secular nation. Senator Stevens should sue the prosecutors for their prosecutorial professional malpractice, with scienter. To deter.

Posted by: Supremacy Claus | Apr 9, 2009 2:22:04 AM

SC - are you sure that's the only reason?
Are you sure you're not just flame?

Posted by: Gray | Apr 9, 2009 8:50:41 AM

History indicates that all this will die away and fairly quickly. Note that the Pittsburgh Post Gazette in 1998 ran a TEN ARTICLE SERIES on federal prosecutor misconduct and abuse that led to proposed legislation that DOJ killed: http://articles.latimes.com/keyword/pittsburgh-post-gazette-newspaper and http://graham.main.nc.us/~bhammel/GOV/doj.html. And yet we're having this conversation today. Maybe this will be a tipping point since it involves powerful politicians who might support payback, but it's hard to see how this will be different than the aftermath of every other revelation of prosecutorial malfeasance, state or federal.

Posted by: Michael Connelly | Apr 9, 2009 8:54:29 AM

I have to agree with Michael Connelly. Likely sound and fury, yet again. Possibly the most effective way to enforce the rules against federal prosecutors---tossing out charges and reversing convictions on a wholesale basis until they get the message---is politically infeasible because it has the side effect of letting large numbers of criminals go free because the constables have blundered.

Another possibility is for judges to stop protecting prosecutors by referring to the misconduct of the "ADA" or the "Government attorney" in the case. It's one thing to drop the offender's name when you are talking about an isolated slip or inadvertent mistake, but if there is out-and-out, inexcusable misconduct, name it and shame it, people. One wonders if the preponderance of former prosecutors on the bench contributes to this, in some ways admirable, desire not to derail a prosecutor's career over one case. In my view, however, when you have the awesome responsibility and power of the government behind you, you shouldn't be heard to complain if you are held accountable for your use of that power. (Not to mention that, as with drunk driving, what are the odds this is the first time the lawyer has acted this way, vs. the first time he or she has been caught?)

Posted by: Stop the free rides | Apr 9, 2009 11:09:13 AM

It would be interesting to know the political leanings of those who did this . . . .

Posted by: federalist | Apr 9, 2009 12:42:15 PM

Gray: Feel free to easily rebut these points with a quick lawyer repartee.

Ad hominem responses show frustration in the traverse. This is loving criticism, and not flaming. It is utterly serious and stems from great distress about the rule of law.

Posted by: Supremacy Claus | Apr 9, 2009 5:36:31 PM

When you make a habit out of wearing tinfoil hats, don't be surprised when persons comment on your choice of unique headgear.

Posted by: Mark#1 | Apr 10, 2009 2:30:26 AM

Most prosecutorial misconduct is ignored. The recent cases of prosecutorial misconduct that have been addressed are very rare. Bad prosecutors need to be prosecuted for civil rights crimes under 18 uSC 241,242. Unfortunately government rarely goes after government. -- scott huminski

Posted by: Scott Huminski | Apr 10, 2009 10:33:38 AM

So far, there has been no rebuttal of my assertions of either facts or law. Reason? There is none possible.

Posted by: Supremacy Claus | Apr 10, 2009 3:59:36 PM

The cult indoctrinated lawyer cannot see the irony. It believes in supernatural core doctrines from 1250 AD, and unlawfully from a church. It believes minds can be read. Future rare accidents can be forecast. That a chain of causation exists in nature. That strangers off the street after excluding those with knowledge, can determine truth telling by using their gut feelings. It does not know that the word reasonable means, in accordance with the New Testament, as covered in 10th Grade World History or Western Civ 101 but erased by the lawyer education, a cult indoctrination so good, no lawyer knew it took place.

Then the lawyer mocks the person pointing out that Medieval garbage, by saying they wear tinfoil hats.

Posted by: Supremacy Claus | Apr 10, 2009 7:35:04 PM

End all unlawful, unconstitutional, self-dealt immunities of these tortfeasors. Allow legal malpractice lawsuits against all prosecutors, all judges. They are not above the law. They are incompetent, careless government do nothing lazy rent seekers. They should carry insurance to compensate all the victims of their intentional and negligent torts. Most of these are per se, since they violate the Rule of Conduct, the Rules of Evidence and the Rules Civil and Criminal Procedure. The lawyer absolutely opposes any recourse for this injustice.

Posted by: Supremacy Claus | Apr 13, 2009 11:23:39 PM

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