24 June 2009

Justice Dept Covers Up Prosecutors' Misconduct

The Department of Justice is in charge of handling complaints of unethical conduct by federal prosecutors. About 30% of cases involve prosecutors hiding exculpatory evidence in criminal cases from defense attorneys, in violation of the U.S. Constitution. But, rather than prosecute cases it sits on them, releases no public information (not even at a statistical level after 2006), and the punishments imposed are frequently minor (like private reprimands) even in situations that experienced federal judges see as serious violations and follow up upon.

Most of the degradation in the Office of Professional Responsibility, in charge of these cases in the Justice Department, apparently happened during the administration of George W. Bush and it isn't clear how much change President Obama will bring to the situation (incumbent U.S. Attorney General Eric Holder took office February 3, 2009, Deputy Attorney General David W. Ogden was confirmed March 12, 2009, as was Associate Attorney General Thomas J. Perrelli). Eric Holder's public statements about Justice Department reform are encouraging. It appears, however that H. Marshall Jarrett has led the Office of Professional Responsibility since 1998 (presumably as a senior civil servant) and that he, in turn, reports to the Deputy Attorney General and the investigated attorney's "component head" with the results of the investigation in each case. In Jarrett's defense, the Bush administration was not always cooperative (citing the New York Times):

Jarrett sought to investigate DOJ approval for the National Security Agency's domestic wiretapping program in 2006, but requisite security clearances were denied. On February 22, 2008, Jarrett announced an investigation of DOJ legal memoranda by John Yoo, Jay Bybee, Steven Bradbury, and others justifying waterboarding and other harsh interrogation techniques.

Then again, the fact that the investigation cited above started in 2005 and still hasn't concluded apparently, isn't impressive.

The evidence of weak attorney discipline at the Office of Professional Responsibility in the Justice Department, as reported by the American Bar Association Journal, suggests that the world's largest law office (i.e. the Justice Department) needs to hand off attorney regulation to disinterested third parties, in the same way that private firms are not permitted to judge their own lawyers. The truth of the matters is that professional and industry discipline agencies in almost every profession and industry tend towards regulatory capture, but most do take complaints of serious misconduct by individuals within the profession seriously.

The apparent failure of the Office of Professional Responsibility in the Justice Department is particular worrisome because some of the most culpable violations of civil liberties and incidents of torture were condoned by administration lawyers, like John Yoo, in ways that appear to violate professional ethics for lawyers in government service. The breakdown of professional ethics monitoring in the Justice Department may also color the rulings of judges who have first hand experience with these issues, in the Padilla v. Yoo civil lawsuit currently pending, where the complaint of Jose Padilla, who was detained as an enemy combatant and allegedly treated improperly while detained under the cover of a Department of Justice memoranda was held to state a claim for relief against a lawyer involved in writing those memoranda.

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