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September 23, 2010

USA Today exposes a "pattern of serious, glaring misconduct" among federal prosecutors

A helpful reader alerted me to this potent and disturbing new piece in USA Today headlined "Prosecutors' conduct can tip justice scales." Here are a few excerpts:

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation's most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains.

Such abuses, intentional or not, doubtless infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation's federal courts each year. But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct.  And each has the potential to tarnish the reputation of the prosecutors who do their jobs honorably....

With help from legal experts and former prosecutors, USA TODAY spent six months examining federal prosecutors' work, reviewing legal databases, department records and tens of thousands of pages of court filings. Although the true extent of misconduct by prosecutors will likely never be known, the assessment is the most complete yet of the scope and impact of those violations.

USA TODAY found a pattern of "serious, glaring misconduct," said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors.  "It's systemic now, and … the system is not able to control this type of behavior. There is no accountability."

He and Alexander Bunin, the chief federal public defender in Albany, N.Y., called the newspaper's findings "the tip of the iceberg" because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges.

However frequently it happens, the consequences go to the heart of the justice system's promise of fairness....

In a justice system that prosecutes more than 60,000 people a year, mistakes are inevitable.  But the violations USA TODAY documented go beyond everyday missteps. In the worst cases, say judges, former prosecutors and others, they happen because prosecutors deliberately cut corners to win.

"There are rogue prosecutors, often motivated by personal ambition or partisan reasons," said Thornburgh, who was attorney general under Presidents Reagan and George H.W. Bush. Such people are uncommon, though, he added: "Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office."

Judges have seen those abuses, too.  "Sometimes, you get inexperienced and unscrupulous assistant U.S. attorneys who don't care about the rules," said U.W. Clemon, the former chief judge in northern Alabama's federal courts.

Wowsa!  I know of more than a few recent high-profile cases in which accusations of federal prosecutorial misconduct were lodged (and generally rejected by lower courts).  It will be interesting to see if this USA Today report prompts efforts by defense attorneys in all such cases to renew assertions of prosecutorial misconduct.  It will also be interesting to see if and how various folks inside the beltway --- ranging from folks inside Main Justice to members of Congress to even Supreme Court Justices --- might respond to this USA Today report.

September 23, 2010 at 10:26 AM | Permalink


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We've all known for years this was happening, finally someone has made a major effort to bring it to the forefront and maybe garner some national attention. It's time for those prosecutors to receive some of the same treatment they've knowingly dished out for years. They need to be prosecuted and disbarred!

Posted by: Shelly T | Sep 23, 2010 10:43:25 AM

Doug --

Great minds think alike. Indeed, they appear to think simultaneously (my entry went up at 10:23 EDT, yours at 10:26). The story is unsettling to say the least. My reaction is set out in my piece on Crime and Consequences, http://www.crimeandconsequences.com/crimblog/2010/09/sometimes-it-is-the-prosecutor.html.

Posted by: Bill Otis | Sep 23, 2010 11:08:51 AM

If a AUSA goes rogue on you, its more than just tough sledding, they already have every advantage with the base power and how the guidelines are written broad and sweeping. Its sad that it happens, but I know of one that have breached Plea deals..

Posted by: Abe | Sep 23, 2010 11:31:24 AM

Prosecutor misconduct in the Senator Stevens case and the Blackwater case, AUSA Jason Ferguson who admitted to lying in the Mark Shelnutt case Columbus, Ga. and many more. The best of all, Pottawattamie County v. McGhee, where prosecutors argued that the men didn't have the right to sue them, that prosecutors are immune, and that there is no freestanding constitutional "right not to be framed." Maybe not but the feds really didn't want to put that theory to a real test and settled. So, we will never know for sure until another such case makes it to the Supremes. Until then prosecutors are free to keep on keeping on as evidenced by this report.

"Motivated by personal ambition or partisan reasons." There you go. It's all about brownie points, numbers and winning period. Justice has little to do with it. That is why the charge of "conspiracy is so often used by the feds to cast a wide net over anyone even remotely implicated and then use intimidation, the threat of "stacked" charges, or going after family members to coerce/scare their targets into taking a plea that is carefully crafted to insure that all future "rights" are waived. This to insure that once the shock has worn off and the person may be thinking more clearly or be better represented, it is too late to change courses. They will lie, twist, distort and manufacture evidence, and manipulate people who, in large part, have little to no ability or financial means to withstand the "full weight' of the government.

The Constitution may not specifically guarantee the right not to be framed but common sense and decency sure does. After all, these prosecutors are hired to "protect" we the people and over criminalization/over prosecution protects no one.

Posted by: Just Sayin' | Sep 23, 2010 11:42:45 AM

"But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct..."

Oh no! A rebuke! Those rogue prosecutors must be shakin' in their boots.

Posted by: NewYork | Sep 23, 2010 12:02:06 PM

1. As a current 2L who just finished up the selective prosecution and vindictive prosecution sections in my Crim Pro course, I'm skeptical that courts will be willing to do anything to address this issue. Directives will have to come from the executive or legislature, given that federal judges can easily cop out by appealing to separation of powers norm.

2. I'm quite disinclined to take anything published in USA Today seriously.

Posted by: Drew Kukorowski | Sep 23, 2010 1:28:15 PM

just the tip of the iceberg:

Valdovinos v. McGrath, 598 F.3d 568 (9th Cir. 2010) (murder conviction vacated because "a pattern of non-disclosure permeated the proceedings against [petitioner]" which deprived petitioner of due process.); Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010) (murder conviction vacated where prosecution suppressed material impeachment information concerning its key witness, Sims; namely that that Sims had worked as a paid informant for at least three local and state law enforcement agencies in multiple cases); U.S. v. Johnson 592 F.3d 164 (C.A.D.C.,2010) (conviction for possessing heroin with intent to distribute vacated because of government's failure to to disclose evidence that heroin found in defendant's bedroom was actually owned by his cousin); Cone v. Bell, 129 S.Ct. 1769 (U.S.,2009) (Remand was required, on petition for habeas corpus from Tennessee murder conviction and death sentence for review of the effect of prosecut ors improper suppression of evidence) Simmons v. Beard, 590 F.3d 223 (3d Cir. 2009) (murder conviction and death penalty vacated because of due process violation where prosecutor failed to disclose that witness was pressured to cooperate and that a second witness committed perjury); Wilson v. Beard, 589 F.3d 651 (3d Cir. 2009) (murder conviction and sentence of death vacated because of prosecutor’s suppression of favorable information regarding witnesses criminal convictions and providing money to witnesses); Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009) (murder conviction and death penalty vacated because of prosecutor’s failure to disclose exculpatory report from ‘witnesses who would have cast serious doubt on the State’s case.” ); U.S. v. Price, 566 F.3d 900 (9th Cir. 2009) (conviction reversed where prosecutor violated his due process duty under Brady to learn the results of investigation into criminal past of government witness); U.S. v. Reyes, 577 F.3d 1069 (9th Cir. 2009) (government violated due process by not disclosing favorable evidence discovered in parallel SEC proceedings); Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) (murder conviction and death penalty vacated because of due process violation where prosecutor failed to disclose promise to key witness); Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (murder conviction vacated because of due process violation where prosecutor knew witness was testifying falsely); Harris v. Lafler, 553 F.3d 1028 (6th Cir. 2009) (murder conviction vacated because of due process violation where prosecutor suppressed promise to key witness); U.S. v. Robinson, 538 F.3d 1265 (10th Cir. 2009)(conviction reversed because of district court’s refusal to disclose informant’s mental health records to defense which violated Due Process)

Posted by: anon1 | Sep 23, 2010 1:35:30 PM

201 cases since 1997? That's fewer than 20 per year. That's pretty low.

Posted by: Reader | Sep 23, 2010 1:45:33 PM

The part I find unfortunate is that the prosecutors involved do not face personal consequences for these acts. Society as a whole does (as witnessed by dropped charges against potentially guilty defendants) but the prosecutors are not looking down the barrel of criminal or even civil liability. Adverse career consequences just aren't enough.

Much like the way so few prosecutors are willing to go after cops for minor lawlessness.

Posted by: Soronel Haetir | Sep 23, 2010 2:04:59 PM

"201 cases since 1997? That's fewer than 20 per year. That's pretty low."

Not if you happen to be one of the 20.

Posted by: Just Sayin' | Sep 23, 2010 2:19:08 PM

201 cases since 1991, that we know about.. I'll grant you there are thousands that have items that seem small, but later on after the thunder, could have been a factor to lower sentences...

I think Judges play an even larger role in denying
downward departures...I'm sure you've all had cases that you thought you would get a below guideline sentence.. But its a judges discretion, nothing illegal, but at the same time, deflating..

Posted by: Abe | Sep 23, 2010 3:03:58 PM


Posted by: claudio giusti, italia | Sep 23, 2010 4:28:30 PM

The study is truly the tip of the iceberg. In describing the methodology, USA Today's website states: "The newspaper excluded dozens of other cases because experts thought the allegations of misconduct were less serious, or because courts dismissed any missteps as harmless errors." So, if the prosecutor committed misconduct, but the appellate court said it likely didn't affect the outcome of the case, the prosecutor got away with it. The refusal of appellate courts to reverse cases for prosecutorial misconduct encourages prosecutors who want to "tack too close to the wind." They are willing to take the risk that they won't get caught, and if they do, nothing will happen to their conviction rate or them.

Posted by: Denise | Sep 23, 2010 8:12:48 PM

Prosecutors have statutorily enumerated duties to the defendant in the Rules of Conduct, of Evidence, of Criminal Procedure. There are dozens of cases holding for others. For example, as there is no crying in baseball, there is no crying during closing arguments.

Prof. Berman opposes the extension of torts to the adverse lawyer and to the judge. Given these explicit duties, I do not understand why they should not be sued when they deviate from the law and from professional standards of due care.

One effect of torts will to deter the entire enterprise. Perhaps he is afraid of that effect. Otherwise, torts only deter negligent practice.

Posted by: Supremacy Claus | Sep 23, 2010 9:01:58 PM

I urge Prof. Berman to change his stance and to support the end of all self-dealt judge and prosecutor immunities. This liability will require a federal constitutional amendment, because the Supreme Court has steadfastedly granted these incompetents and crooks absolute immunity and discretion. The Supreme Court itself needs to be made liable for its crimes against humanity. These immunities have no justification in law, ethics, logic, science, nor public policy. The immunity is a factor in the intense hatred of the public.

Posted by: Supremacy Claus | Sep 24, 2010 12:51:22 AM

Wouldn't get too excited about the potential impact the story might have. It is nearly identical to a 10-part series that appeared in the Pittsburgh Post-Gazette in 1998: "Win at all costs"


Here's the intro:

Hundreds of times during the past 10 years, federal agents and prosecutors have pursued justice by breaking the law.

They lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas and convictions, a two-year Post-Gazette investigation found.

Rarely were these federal officials punished for their misconduct. Rarely did they admit their conduct was wrong.

New laws and court rulings that encourage federal law enforcement officers to press the boundaries of their power while providing few safeguards against abuse fueled their actions.

Victims of this misconduct sometimes lost their jobs, assets and even families. Some remain in prison because prosecutors withheld favorable evidence or allowed fabricated testimony. Some criminals walk free as a reward for conspiring with the government in its effort to deny others their rights."

Posted by: John K | Sep 24, 2010 9:07:51 AM

"2. I'm quite disinclined to take anything published in USA Today seriously."

Really? And why is that, Drew?

Posted by: John K | Sep 24, 2010 9:17:40 AM

Drew, you hesitate to take the USA Today article seriously. Do you take the cases listed by "anon1" seriously?

Posted by: Michael R. Levine | Sep 24, 2010 11:25:23 AM

This article will have absolutely no impact on any case in the federal system. I may be jaded, but my experience is that the system is broke and most judges do not care if AUSAs are unethical.

Posted by: Matthew Robinson | Sep 24, 2010 2:04:31 PM

of course not matthew heck the U.S. Supreme court has ruled over and over again our govt law enforcment personel have every LEGAL RIGHT to lie, cheat, steal WHATEVER to get a criminal. The Da's of course are completley exempt from any controls or punishments any other person doing a job would be hit with if the SCREW IT UP....just look at all the enron type prosecutions!. is it any suprise this same mentality and policy and procedure carried though into the courts?

Posted by: rodsmith | Sep 25, 2010 12:28:16 AM

Matthew's correct. The system is broke...maybe too broke to fix. In fact, if it weren't for governments running out of money it's doubtful there'd be any hope for meaningful change at all... unless and until a critical mass of citizens mistreated by the system forms a politically significant constituency (but even then, of course, many of them would be allowed to vote). So there you go.

My guess is that judges don't care because most, at least many, judges ARE prosecutors. Notice I don't say former prosecutors, and that's because in many instances being a prosecutor isn't so much a job as an expression of one's personality.

To paraphrase an expression Marines like to use: One a prosecutor, always a prosecutor.

Posted by: John K | Sep 25, 2010 8:36:54 AM

Once a prosecutor...

Posted by: John K | Sep 25, 2010 8:38:20 AM

please start with pennsylania it is one of the worst so call justice systems in the whole entire country

Posted by: michelle gillead | Oct 10, 2010 1:51:01 PM

I agree with Reader - when are prosecutors ever going to face harsh penalties or deal with consequences of their actions? Ruining the lives of people to score a conviction is the biggest hypocrisy of justice there is. I'm married to a police office so I have no problems with people being thrown in jail who are a detriment to society, but at least be honorable about it.

And John K, Pennsylvania ain't got nothing on Chicago when it comes to horrible justice systems... trust me on that.

Posted by: criminaljusticesaveslives | Oct 27, 2010 2:18:27 PM

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