USA Today Investigation Scratches the Surface of Decay in U.S. Justice System

Eric Holder

USA Today has launched a series of investigative reports that show prosecutorial misconduct is a serious problem in the U.S. Justice Department. Last week's first installment indicates the series will be a stellar piece of journalism, one that Harper's Scott Horton says should put the newspaper in Pulitzer territory.

The report, however, only begins to uncover the misconduct that is rampant in America's justice system. For example, USA Today will focus only on federal prosecutors. But what about federal judges? Anyone who has followed the Don Siegelman case in Alabama and the Paul Minor case in Mississippi knows unethical judges are a significant problem. What about state courts, which is where our personal legal nightmare began? And what about appellate courts at both the federal and state levels? We have shown at Legal Schnauzer that appellate judges can be every bit as corrupt as their trial-court brethren. (See here, here, and here.)

In fact, we recently have discovered three examples of unlawful rulings by federal judges here in Alabama. One involves a lawsuit Mrs. Schnauzer and I filed against unethical debt collectors, and the trial judge made unlawful rulings on at least 10 different issues. How does a judge screw things up that badly? Is he even trying to dispense justice?

Two other cases involve RICO lawsuits against judges and lawyers who allegedly have conspired to fix domestic-relations cases in Jefferson County, Alabama. In both divorce-related cases, the rulings are so blatantly unlawful that they can only be explained, in our view, by incompetence, corruption--or both. We will be reporting extensively on all three cases.

Our research will show, we think, that these federal judges are intentionally cheating litigants in order to protect certain members of the legal and business communities. That's not how our justice system is supposed to work. But all to often, that is exactly how it does work in the real world.

We certainly applaud USA Today's efforts to expose problems with federal prosecutors. But readers should know that is only one component of a justice system that is rotting right under our noses.

How bad is the situation with federal prosecutors? Reporters Brad Heath and Kevin McCoy write:

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.

What form does the abuse take? USA Today reports:

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.

What's wrong with the system? Bennett Gershman, law professor at Pace University, sums it up: "There is no accountability." A federal public defender in New York says USA Today's findings are "the tip of the iceberg."

What was the Obama administration's response? Attorney General Eric Holder refused to be interviewed for the story. The White House apparently thinks mouthing platitudes will solve the problem. Reports USA Today:

Attorney General Eric Holder declined to be interviewed; earlier this year, he told judges that officials "must take seriously each and every lapse, no matter the cause." The head of the department's criminal division, Lanny Breuer, said, "Obviously, even one example of real misconduct is too many. . . . If you've engaged in misconduct, the response of the department has to be swift and strong."

How have Holder and Breuer reacted to obvious misconduct during the George W. Bush years. By "looking forward, not backwards" and doing absolutely nothing about it.

At least one person--former U.S. Attorney General Dick Thornburgh--gets it. He says: “No civilized society should countenance such conduct or systems that failed to prevent it.”

The Obama administration, however, has tolerated it. And that, Scott Horton writes, is to the president's eternal shame. Events in Alabama are at the heart of Horton's critique:

What does Thornburgh mean by “systems that failed?” The focus of his ire is plainly a culture within the Justice Department that promotes abuse and fails to deal with abuse when it is publicly exposed. Despite his promises to clean the situation up, Eric Holder has done nothing other than arrange some ethics training courses. The Department steadily resists disciplinary action against prosecutors who misbehave and attempts to block public exposure of their misconduct through congressional probes with claims of prosecutorial immunity. Holder refuses even to take questions on the subject at public events (as occurred just [last] week at an event marking the fiftieth anniversary of To Kill a Mockingbird in Alabama). The U.S. attorney who is perhaps the worst single Bush-era offender remains in her position as Republican senators block efforts to appoint a replacement, and the Justice Department continues to stonewall an investigation into some of the most serious cases of abuse.