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December 9, 2010

USA Today posts its next set of articles in its series on federal prosecutorial misconduct

As noted here a few months ago, USA Today published this potent and disturbing pieceabout federal prosecutorial misconduct earlier this fall.  Now I see from this webpage that USA Today has now published this additional set of article on this important topic:

Here is one of many notable excerpts from the first of these articles:

The Justice Department consistently conceals its own investigations of misconduct from the public.  Officials say privacy laws prevent them from revealing any details of their investigations.  That secrecy, however, makes it almost impossible to assess the full extent and impact of misconduct by prosecutors or the effectiveness of the department's attempts to deter it....

The Justice Department refuses to discuss its misconduct investigations, though Congress has repeatedly urged more transparency.  In 1978, for example, Congress asked the department to make the results of its investigations public.  That happened for roughly seven years under Attorney General Janet Reno, President Bill Clinton's appointee, when [the Office of Professional Responsibility] released summaries of its investigations that included prosecutors' names.

But — with the exception of a few investigations of high-ranking officials — OPR has not revealed the names of prosecutors it found committed misconduct in almost a decade. Justice officials told USA TODAY that a federal law known as the Privacy Act, enacted in 1974, bars them from releasing any details, even when the problems have been widely publicized.  Instead, it produces anonymous annual reports without any identifying details, even genders, of the prosecutors involved.

"OPR is a black hole.  Stuff goes in, nothing comes out," said Jim Lavine, the president of the National Association of Criminal Defense Lawyers.  "The public, the defense attorneys and the judiciary have lost respect for the government's ability to police themselves."

December 9, 2010 at 10:19 PM | Permalink


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I invite Prof. Berman or anyone else to justify prosecutorial immunity from tort liability. Although the criminal prosecution meets all criteria for strict liability, let's limit it to professional standard of due care. Explain why the prosecutor should be have malpractice liability. Do so publicly.

Posted by: Supremacy Claus | Dec 10, 2010 12:10:18 AM

Also, please explain how the Disciplinary Counsel system does not grossly violate the Constitution separation of powers, and all human logic. There is no circumstance under which human beings can adequately regulate themselves.

The Supreme court of a state writes the Rules of Conduct, a legislative act. It hires the DC, who is a self styled prosecutor, which is an executive branch function. The DC prosecutes lawyers before the Supreme Court who is his employer. Do you think there may be a little bias there favoring the employee of the Court?

The result, only 4 infractions are ever prosecuted, and the rest are never enforced.

Posted by: Supremacy Claus | Dec 10, 2010 12:15:01 AM

Rules of Appellate Procedure should change to allow the review and even the investigation of facts by appellate judges.

AS stated, only 1% of material misconduct results in Bar responses. There is a 99% chance of no consequence to the misconduct. There is no recourse. Torts and professional liability would prevent the full justification of street justice by the families of the victims of prosecutorial misconduct.

Furthermore, when those Harvard trained white collar defense lawyers ran from me at a party after I proposed total e-discovery on the prosecutor and judge, calling it unethical, they turn out to be wrong. And personal measures against the prosecutor should become a standard of due care for all defense lawyers.

Posted by: Supremacy Claus | Dec 10, 2010 8:51:46 AM

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