Federal Prosecutors Have Little to Fear for Gross Misconduct

Eric Holder

Why were lawyers in the U.S. Department of Justice (DOJ) willing to pursue political prosecutions against Don Siegelman, Paul Minor, and other Democrats during the George W. Bush years? Probably because they knew they could get away with it.

That's the lesson to be taken from the latest installment in USA Today's series on misconduct among federal prosecutors. Scott Horton, of Harper's, has written that the series puts the newspaper in Pulitzer territory. The most recent segment, published last week, only enhances the paper's chances of earning a major prize. It's the kind of hard-hitting journalism that rarely is seen in the mainstream press these days. And we can only wonder about the kind of blowback the paper is receiving for daring to take an honest look at the American justice system.

We can't wait to see what angles USA Today will tackle next in the series. In fact, we can offer a few suggestions.

But first, let's examine the DOJ's disciplinary process for wayward prosecutors, which is so woefully lacking as to be almost nonexistent. Report Brad Heath and Kevin McCoy of USA Today:

A USA TODAY investigation has found that prosecutors have little reason to fear losing their jobs, even if they violate laws or constitutional safeguards designed to ensure the justice system is fair.

Justice Department officials say they take every violation of those rules seriously. But USA TODAY's investigation, based on an examination of tens of thousands of pages of court files and reviewed by a panel of legal experts, found:

* The Justice Department often classifies as mistakes violations that result in overturned convictions.

* Even when investigators conclude that prosecutors committed misconduct, they are unlikely to be fired.

* The Justice Department consistently conceals its own investigations of misconduct from the public.

Attorney General Eric Holder says the DOJ has instituted new training policies in the wake of the failed prosecution against former Alaska Senator Ted Stevens. But the department apparently has taken no serious review of the Siegelman and Minor cases, which appeared to be infested with misconduct on a far grander scale than was present in the Stevens case. In fact, those convictions almost certainly should be overturned based on prosecutorial misconduct. But it hasn't happened yet, and we see no signs that it will.

Even those who have been close to the DOJ have little confidence in its ability to police rogue prosecutors:

For years, however, says Joseph diGenova, a former U.S. attorney in Washington, D.C., the bottom line was that the government allowed lawyers "who should not be federal prosecutors to continue in that role. The record on discipline is very, very poor. The history of serious discipline is basically non-existent."

USA Today focuses on the case of Sabrina Aisenberg, who reportedly was kidnapped from her Florida home in 1997 when she was 5 months old. A federal prosecutor, breaking numerous departmental rules in the process, charged Sabrina's parents with lying about her disappearance. The government wound up dropping the case against Sabrina's parents and paying defense lawyers $1.5 million.

The prosecutor, Stephen Kunz, still is a federal prosecutor in Florida. Sabrina never has been found:

Without stronger safeguards, Justice Department critics say, those problems will continue.

"It's a disgrace to the Department of Justice, it's a disgrace to the system, it's a disgrace to what we're supposed to stand for," says Barry Cohen, the Tampa defense attorney who represented Sabrina Aisenberg's parents. He says Kunz, the prosecutor, should have been fired--and prosecuted.

What about the victims of the DOJ?

"It's kind of a travesty," said Steven Aisenberg, Sabrina's father, who lives in Maryland with his wife and two other children. Kunz "fabricated information, and he still has a job doing what he did before. Now he lives to do it again, to somebody else."

Aisenberg said the family is still searching for Sabrina. She would have turned 13 last June.

Why do federal prosecutors have little to fear for cheating the public? For one, the department's "watchdog" has no teeth. It's called the Office of Professional Responsibility (OPR), and it probably would have to improve to be worthless:

The Office of Professional Responsibility was founded in 1975 as part of an effort to restore public confidence after the Watergate scandal. Criticism soon followed. In 1990, for example, a congressional committee blasted the office, saying it failed to investigate some judicial findings that prosecutors had committed misconduct.

OPR's founder, Michael Shaheen, retired in 1997 amid an investigation by the Justice Department's Inspector General that ultimately concluded he and two top deputies had themselves committed misconduct by violating government travel regulations. Before he died in 2007, Shaheen told National Public Radio that OPR should be abolished, because it was "plagued by a history of delays and the bureaucratic layers superimposed on it, and by the end of an investigation--two, three years--you find that they've labored and brought forth … a squeak, or a mouse."

How bad is OPR? Consider the numbers:

Its investigations, run by agency attorneys, typically take at least a year to complete, and dozens have gone on for more than two years, a USA TODAY analysis of data obtained from the office shows. The vast majority of those investigations conclude that prosecutors did not break the rules, or that any violations were unintentional and should not be punished.

From 2000 to 2009, OPR's annual reports show, the office completed investigations of 756 complaints--fewer than 10% of the total complaints it received--and found that lawyers had actually committed misconduct in 196 cases.

What's the underlying problem? It goes back to an issue we've written about many times on this blog--lawyers simply cannot police themselves. They automatically try to protect one another:

"Government lawyers are likely to view the conduct most favorably to other government lawyers," says Ellen Yaroshefsky, the head of Cardozo Law School's Jacob Burns Ethics Center in New York. She said an outside watchdog is needed. "It's human nature that you're going to give the person the benefit of the doubt, because it could be you next. There just needs to be an independent evaluation of allegations of misconduct."

What about other angles for USA Today to examine? The paper already has examined cases of individuals who were wrongly prosecuted. It has indicated it will look at cases of a different kind--where individuals who apparently were guilty got off because of political connections.

We have written extensively about just such a case in Alabama. It involves Alabama Reassurance, a company that was owned by University of Alabama Trustee Paul Bryant Jr. The firm was implicated in a $15-million insurance-fraud scheme in Pennsylvania in the late 1990s, and investigators had been given the go-ahead to focus heavily on Alabama Re once a conviction was obtained in the Philadelphia case. A conviction was earned against Philly lawyer and entrepreneur Allen W. Stewart, but a change in leadership had taken place in the Birmingham U.S. attorney's office, and the Alabama Re investigation was called off. Is that because Bryant, the son of Hall of Fame football coach Paul "Bear" Bryant, comes from one of the state's most powerful and well-known families? We will continue to examine that question.

What about the conduct of federal judges? We hope USA Today will examine that topic, especially in light of the Jack T. Camp case, where a federal judge in Atlanta recently was forced to step down from the bench after being caught buying illegal drugs with a stripper.

We suspect the Camp story is the tip of a sizable iceberg involving corrupt federal judges. In fact, we personally have witnessed multiple federal judges who appear to routinely issue unlawful rulings from the bench--and receive zero scrutiny as a result. That needs to change. We hope USA Today, by shining a spotlight on such sleaze, can help make it change.