Misbehaving Federal Prosecutors

A USA Today investigation finds egregious misconduct at the Department of Justice, with few consequences.

Last week, USA Today published the results of a six-month investigation into misconduct by America’s federal prosecutors. The investigation turned up what Pace University law professor Bennett Gershman called a pattern of “serious, glaring misconduct.” Reporters Brad Heath and Kevin McCoy documented 201 cases in which federal prosecutors were chastised by federal judges for serious ethical breaches, ranging from withholding important exculpatory evidence to lying in court to making incriminating but improper remarks in front of juries.

The list is by no means comprehensive, and doesn’t claim to be. I checked the paper’s website for examples of egregious misconduct reported here at Reason: U.S. Attorney Mary Beth Buchanan’s politically-charged prosecution of Pennsylvania doctor Bernard Rottschaefer; Assistant U.S. Attorney Brett Grayson’s outrageous persecution of the Colomb family in Louisiana; and the bogus Mann Act charges brought against Mississippi heart surgeon, Dr. Roger Wiener. None are among the cases in USA Today’s database. The paper should be lauded for its groundbreaking investigation, but as the reporters themselves acknowledge, they’ve really only scratched the surface. (The investigation also only looked at federal cases, which comprise just a tiny portion of the country’s total criminal prosecutions.)

When the Bush administration drew criticism for firing seven U.S. attorneys a few years ago, much of the outrage was directed at the administration’s perceived politicization of the Justice Department. But that was really only a symptom of a more fundamentally broken system. The deeper problem is that we have a federal criminal justice system that can be so easily manipulated in the first place. The number of federal laws reaches well into the thousands, and it's growing. Many are so broadly written they allow prosecutors to ring just about anyone they please up on federal charges. This creates a system driven by politics, not justice. It makes criminals out of all of us, making actual enforcement of the law arbitrary and corruptible. Worse, every incentive for a federal prosecutor pushes in the direction of winning convictions, with little if any sanction for crossing ethical and legal boundaries in the process. It's a system that’s not only ripe for abuse, but that actually rewards it.

Of the 201 cases USA Today reviewed in which a judge publicly reprimanded a prosecutor, the paper found just one in which a prosecutor "was barred even temporarily from practicing law for misconduct." The Justice Department refused to tell the paper about which, if any, of the cases resulted in internal discipline taken against the offending prosecutors. Rather appallingly, DOJ cited the need to protect the prosecutors' privacy. Never mind that they’re public servants who have been reprimanded by a federal judge for abusing their power. Not to mention that said power is among the most serious we afford to a government official. Prosecutors have the power to take away a citizens’ freedom. Even in cases that don’t result in a conviction, a federal indictment or even investigation can bankrupt the target of the investigation. The idea that prosecutors who abuse that power should be escape public scrutiny out of concern for their privacy is not only preposterous, it's another symptom of a system with misplaced priorities.

USA Today’s finding of little to no sanction for misbehaving prosecutors is consistent with other studies. According to an Innocence Project study of 75 DNA exonerations, prosecutorial misconduct factored into just under half of those wrongful convictions. In none of those cases did the offending prosecutor face any serious sanction. A 2006 Yale Law Journal look at violations of the Brady rule, which requires prosecutors to turn over exculpatory evidence to defense attorneys, found "[a] prosecutor's violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies." A 2009 brief filed by the Cato Institute, the American Civil Liberties Union, and the National Association of Criminal Defense Attorneys in the U.S. Supreme Court case Pottawattamie v. McGhee noted that studies of wrongful convictions in California, New York, and Chicago all found that though prosecutorial misconduct contributed to a sizable majority of cases that sent innocent people to prison in those states, the misbehaving prosecutors were rarely if ever sanctioned.

During oral arguments in that case, a majority of Supreme Court justices seemed to indicate that they may finally be ready to put a dent in absolute prosecutorial immunity, the complete protection (which has no basis in the U.S. Constitution and no common law tradition) we give prosecutors from lawsuits from the people they prosecute, even in cases where a prosecutor’s gross negligence contributed to a wrongful conviction. At issue in Pottawattamie was whether absolute immunity should protect prosecutors even in cases where they intentionally manufacture evidence that causes a wrongful conviction. That case was settled before the Court could issue a decision, but the Court will revisit the question next term, in the case Connick v. Thompson. It isn’t difficult to see how shielding prosecutors from liability even in an obvious frame job creates some some pretty twisted incentives.

The position of U.S. Attorney is often seen as a stepping stone to a political career, which makes those who occupy the office notorious publicity hounds. They’re known to taint jury pools by calling high-profile press conferences in which they convict suspects in public before stepping foot in the courtroom. And woe to the defendant who uses the press to fight back. Consider what happened to Siobhan Reynolds, the pain patient activist who often uses similar media tactics to combat what she perceives to be the federal government’s wrongful targeting of physicians who prescribe opioid painkillers. When Reynolds mounted a public relations campaign in response to Assistant U.S. Attorney Tonya Treadway’s prosecution of Kansas physician Steven Schneider and his wife, Treadway turned her sights on Reynolds. Treadway launched a grand jury investigation of Reynolds and her patient organization, ordering Reynolds to turn over a trove of documents related to her advocacy on behalf of the Schneiders and other physicians and patients.

The only way to address this issue is to pierce the cone of infallibility we put around prosecutors. There’s a presumption that because they’re public servants, prosecutors should be given the benefit of the doubt, that even grievous mistakes should be assumed to have been unintentional, or that because they’re pursuing a goal most of us consider to be in the public interest—putting bad guys behind bars—even intentional infractions should be lightly sanctioned, or overlooked entirely.

But public choice theory teaches us that public servants act in their own interest in the same way private sector workers do. There’s nothing transformative about working in a DA’s office as opposed to, say, a white shoe law firm. You don’t shed self-interest to become purely noble and altruistic once you’re sworn into office. If anything, prosecutors should be given more scrutiny and oversight than other members of the legal profession. Private lawyers at best can influence courts and government officials to move money around. Prosecutors put people in prison and, in some cases, send defendants to their deaths. When they cheat, there ought to be consequences.

Radley Balko is a senior editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Old Mexican||

    New at Reason: Radley Balko on Misbehaving Federal Prosecutors[.]

    Oh, you mean there are others that aren't?

  • ||

    Hey where are the stories about the Feds expanding wiretaps? Or of the 10,000 TSA employees with TS clearance? Balko doesn't do those stories when Obama is in charge, only Bush. Plus how come when Gary Johnson says government is too big you practically blow him, but when Sarah Palin says it, she's misguided and dumb? I know why, because you are a liberal, and not a libertarian. Also what happened to huge new cause of getting Facebook to run reefer ads? That has kind of faded away???

  • Guest-1||

    You are right, we should ignore the prosceutorial abuse because Radley is not covering the stories you want to cover.

    Conservative, liberal, or libertarian, this is something that everyone needs to pay attention to and do the heavy lifting required to right the ship.

  • matt||

    Balko writes things critical of both parties. And you don't have to be a "libtard" to think Sarah Palin is misguided and dumb. And the issue of "misbehaving prosecutors" transcends party lines.

    Go back to watching the "Mike Huckabee Show"

  • ||

    The Mike Huckabee Show isn't too bad. I'll bet that show even turns a bit of a profit and he doesn't have to ask for donations to stay afloat like Reason does. As a matter of fact I've heard that Reason mag has never made a dime of profit in it's existence. But yet the pages are full of fools opining about taxes and economics.

  • EvilDevilCuckoo||

    @Pat Lynch: Well if you heard it then it must be true. So by your logic, Mike Hucabee's show is somehow superior to Reason b/c it makes more money. Then Jersey Shore is superior to Mike Huckabee's show b/c it makes more money. Prior to his recent media ventures Huckabee's business ventures have made less than "The Situation"'s have but Huckabee's show is full of opining about taxes and economics.

    As a general rule, if you put up any for-profit venture that's not currently bankrupt against a non-profit one, you'll find the for-profit one makes more profit.

    Similarly, Paris Hilton has made much more profit (before her 'career' took off - back when it was just about interest and investment income she inherited) than any economist you can name. So I guess Milton Friedman was less qualified to speak on Economics than Paris is.

    Outside of the Obvious Troll schtick - I can't really tell if you're a liberal pretending to be a charicature of of a conservative, or if you're the real deal. Either way, why waste your time reading the works of fools and their acolytes? There are plenty of other websites that would love to have you and where you wouldn't have to defile yourself with the opinions of idiots right?

  • ||

    Did Milton Friedman rely on pledge drives? Did he have to knock on wealthy philanthropist's doors so he could tell the world the best way to hold a plede drive? The pages of Reason are filled giant pussies that have never worked a real job, met a payroll, or had to hire or fire someone. And BTW, what happened to the latest big cause of forcing Facebook to run reefer ads? Isn't Facebook allowed to pick and choose how best to run their company?

  • EvilDevilCuckoo||

    Uhh, I guess you didn't read Friedman. But red herrings and straw man aside, so what? And when did I ever say a word about Facebook and refer ads? Ooops, another straw man.

  • ||

    Since the courts, the Justice Department and the bar all refuse to discipline immoral, corrupt self serving prosecuters, immunity has got to go.

    Sue the fucking pants off some of these assholes and maybe the others will sit up and take notice. I'll say good thing about any SCOTUS justice who votes to overturn absolute immunity for prosecutors.

  • Wegie||

    Yeah, this will be happening soon!

  • CatoTheElder||

    The US doesn't have a "justice system". Instead, it has a legal system.

  • Old Mexican||

    But public choice theory teaches us that public servants act in their own interest in the same way private sector workers do.

    Just to be clear, it also indicates that the incentives are different: Private sector (really, productive people) act on improving their lot by producing, whereas public sector (really, UNproductive leeches) act to improve their lot by hindrance.

  • EasyPeasy||

    +1

  • ||

    You only say this because you were unable to make it through the mystical transformation process that cleanses your soul. Tsk, tsk, such jealousy.

  • ||

    The public sector creates most of the research and design that the private sector can then steal and profit from.Where does most of the R and d in this country come from and who pays for it?Not the private sector.

  • MWG||

    [citation needed]

  • ||

    #1 in R&D, by number of patents granted, for the last 14 years running, is International Business Machines - not a government entity if I recall.

  • Barak Obama||

    Not yet...

  • ||

    I am a patended product of Porta-John. Please allow me to suck the feces from between your cheeks. Be sure to eat a really low-fiber diet so it comes raining out in an orgasmic relief of half-digested chicken wings and kung pao beef. It will be good R&D.

  • The Extispicator||

    The tragedy of Radley Balko is that there is only one of him.

    Is this a sign that others in the media will pick up on the fact that "tough on crime" also turns out to mean "tough on the innocent in pursuit of political ladder climbing"?

  • BakedPenguin||

    I amazed USA Today broke a story like this. The sad thing is, they're unlikely to follow up or dig deeper.

  • ||

    Actually, not following up or digging deeper is kinda the whole point. Story gets covered so they can maintain the illusion that the press is "doing its job". But they do it so poorly there's no real chance of any change.

  • ||

    What about Will Grigg at LRC?

  • Coeus||

    The tragedy of Radley Balko is that there is only one of him.

    Nicely put.

  • EvilDevilCuckoo||

    +10000000

  • Fist of Etiquette||

    If you outlaw prosecutorial immunity, only outlaws will be prosecuted.

  • ||

    +1

  • M||

    Beautiful!

  • Upgrayyed||

    Try finding a lawyer that will sue another lawyer.

  • ||

    You've never seen what happens when sharks bleed?

  • Kristen||

    Seriously? The first jury panel I was ever on was two lawyers suing each other.

  • ||

    What I want to see is Clarence Thomas and Ginsburg in the Octagon. Writing a 183-page opinion on something that should be common fucking sense deserves a guillotine choke.

  • Wegie||

    "A USA Today investigation finds egregious misconduct at the Department of Justice, with few consequences." Exactly no one cares enough to change it. Americans would rather watch Dancing With The Stars or some other equally cerebral program.

  • ||

    At least Dancing With The Stars can be effected by the will of the people. People don't care about the DOJ, not because of apathy, but because they know they can't do anything about it.

    The feds are immune to our anger. They ignore our protests. They write/enforce/interpret laws as they see fit. We are powerless.

  • Apogee||

    It's a lot worse than simply the prosecutors.

  • Kaganspawn||

    My personal preference would be to see prosecutors held accountable in these kinds of cases. But what are the counterarguments? Flood of litigation would result against prosecutors by convicted persons looking for revenge or another avenue of appeal? States and fed would have to pay higher malpractice insurance to cover prosecutors?

  • ||

    Idle speculation unsupported by any empirical evidence whatsoever.

  • Guest-1||

    Well, there are perhaps other ways to address this problem, like strengthening the grand jury system so it doesn't act like a rubber stamp, and cutting back on the scope of criminal law. If you are really ambitious we could do away with the adversarial nature of the criminal justice system so the government employees responsible for administering it have incentives to get the answer right rather than rack up the score.

    Unfortunately, none of that is likely to happen, so as a fall back we can give plaintiff's lawyers an profit incentive to sniff out the bad apples.

  • Extended Warren T||

  • Guest-1||

    That is really tragic, but I wonder if it will make any of his former co-workers think about what they put people through on a daily basis for piddly shit?

    Still, my prayers for him and his family.

  • Tom||

    That's hilarious. The guy gets a taste of his own medicine, so he offs himself.

    Karma, bitch.

  • ||

    Keep immunity, but forbid prosecutors from running for any other public office?

  • ||

    Keep immunity? Are you out of your mind? In case you hadn't noticed, prosecutorial immunity was not one of the causes animating the revolution; nor was sanctioning it a power vested with either the legislature or the judiciary.

  • Anonymous Coward||

    The only way to address this issue is to pierce the cone of infallibility we put around prosecutors. There’s a presumption that because they’re public servants, prosecutors should be given the benefit of the doubt, that even grievous mistakes should be assumed to have been unintentional, or that because they’re pursuing a goal most of us consider to be in the public interest—putting bad guys behind bars—even intentional infractions should be lightly sanctioned, or overlooked entirely.

    And this is the lynchpin in the error of American thinking when it comes to people in government. They should not be subject to less scrutiny, but more. They should not be more difficult to remove, but easier. People are no longer taught that government, and especially the American government, exists only at the sufferance of the governed.

  • cynical||

    "People are no longer taught that government, and especially the American government, exists only at the sufferance of the governed."

    Most people are taught by unionized government workers, so...

  • DVJustice||

    It's not just the prosecutors because in the Danville case, the public defender did nothing about the witness tampering and did not properly defend his client. He and the head public defender resigned after I began contacting state officials. The assistant D.A. also resigned. The tampering detective is now a spokesperson for the police department. At least my efforts has gotten some of these corrupt city officials out of those powerful positions. The defendant has been incarcerated for 7 years and that r-word is attached to his name but state and federal officials don't care. America has always been about stealing, killing and taking away people's freedom. All criminal trials should have juries and a public notice should be in the local newspaper but officials prefer to do cases behind closed doors.

  • Wind Rider||

    One good way to get them to knock this shit off would be to arrange things such that prosecutors proved to have witheld evidence, or worse, manufactured it, they'd be sentenced to the same terms that the innocent they railroaded got saddled with. If it was un-intentional, they should be fired from public service for incompetence. Period.

  • Tom||

    I like you, Wind Rider.

  • Jorj X. McKie||

    Or just make it a standard five years in jail per infraction. Some of these pricks would be going away for life.

  • ||

    Well when you can be removed for not pursuing political prosecution the way those lawyers bush fired were it doesnt take a rocketscientist to to know the others who kept their job were playing the game or else.

  • cynical||

    What exactly does that have to do with the ordinary, nonpolitical criminal cases discussed herein?

  • ||

    Nothing. But, he's a fucking troll. Anything to steer the conversation towards his homo-erotic obsession with a guy no longer relevant in politics.

  • ||

    Superia juris excusat; arrogance of the law is an excuse is the motto of the last to government regimes. If you make the law or enforce the law the law should apply doubly to you. The first sign of a failing civilization is when its laws do not apply to its government.We the People must stand up and hold them accountable.

  • Asshat Politician||

    Yeah right. Sit the fuck back down "people".

  • ||

    BAAAAHHHHHH

  • ||

    Why on earth is anyone surprised by this type of misconduct. Let me explain something to everyone here - Assistant US Attorneys don't make shit. How little do they make? First, it's important to note that the US ATTY doesn't hire recent law grads, so essentially everyone who is working for them is coming from a partner status. First year, AUSAs make $50-65k depending on assignment. They max out at $99-135k. What's worse, there is NO chance of any job growth. You could be an AUSA for decades and never become a US Attorney.

    So what does this have to do with prosecutorial misconduct? The only people who are willing to become AUSAs tend to be the people who couldn't cut it in private practice. To convince themselves that it's a higher calling, they shourd themselves in their 99% conviction rate (something that's not hard to do when you need an indictment just to go forward with a case). They internalize everything as they have nothing to show for decades of service. It's a miserable job.

  • Abdul||

    In the legal community, it's fairly common that misconduct of the type mentioned here is punished by being publicy chastised by the judge---and nothing else.

    Some of the misconduct mentioned (e.g. making incriminating but improper remarks in front of juries) violates only evidentiary rulings and would usually not be punished by other sanctions. In Kobe Bryant's rape case, the defense attorney mentioned the victim's name on the public record six times--something the court had ordered her not to do--and the judge gave her a dressing down, but no more. The judge could have (maybe should have) ordered monetary sanctions, but like I said that's rare for prosecutors, defenders, or civil litigants.

    In court, I saw a pro se litigant prove that the plaintiff had lied to the court. Based on the content of the lie, I'm pretty sure the plaintiff's attorney wasn't in on it. The defendant moved for sanctions, and the judge explained that his strict lecture would be on the record--that's it.

    We're lawyers--we hold ourselves to low standards.

    As far as internal discipline, that's tough for federal prosecutors. They're entitled to appeal rights for any real discipline, so it's usually disguised as a transfer, reassignment, being assigned less interesting work, maybe a lower annual rating, etc.

  • Dave||

    Funny enough, last night I was sitting in my Criminal Law class and the cases we were studying were making my blood boil. For the first time in my life, I actually gave thought to becoming a prosecutor.

    I knew Radley could save me!

  • Ernie the Bear||

    If they can butt-fuck Ted Stevens, they can certainly do it to you.

  • Harvey Silverglate||

    Balko focuses on the kinds of things that defense lawyers have experienced for years, but that few have the guts to air. This kind of Dept of Justice misconduct convicts more innocent folks than the public would like to believe.

  • thursday pastry||

    Let's see what happens when John Dowd gets to question them under oath.

  • ||

    Even if you could sue a prosecutor, what lawyer would do so? They'll just end up being prosecuted for something, likely some made-up tax crap.

  • cbalducc||

    I noticed some of the defendants in the cases USA Today highlighted ended up pleading guilty to the crimes of which they were accused or lesser offenses. Is it possible they were guilty in spite of prosecutorial misconduct?

  • DenverJay||

    I have had some dealings with both the criminal/prosecutor and civil/regulatory branches of the federal government. While I do not dispute the problem of out of control federal prosecutors (or prosecutors from any other level of government), the criminal side still has to abide by the "innocent until proven guilty" model we are all familiar with.
    In my humble opinion, although this problem needs to be fixed, the far greater threat to our freedom is in the civil courts. In my case it was the SEC, but choose your letters, and there is a federal agency empowered to sue you with a much lower burden of proof.
    In the civil courts, the plaintiff has the advantage, and any charges they level against the defendant are presumed to be true until the defendant can answer the charges against them. Federal lawyers abuse this system on a daily basis to harass and gain judgments against people who had no criminal intent, merely to advance their personal career goals against helpless citizens. (I.E. this poor schmuck doesn't have the resources to defend himself, so I get a check mark in the "win" column, I get a promotion, who cares that in the process an innocent person is ruined, both financially and reputationally)
    Either way, the government has grown so large that it needs a total restructure, from top to bottom.

  • DVJustice||

    I have been trying since 2003, before I ever heard of Obama and Holder, to get Virginia state and federal officials to do something about a Danville police detective tampering with a defense witness during a rape trial. Several years ago when I sent a letter by US Post Office to the UDOJ, the letter was returned to me. How can the US Post Office not know where the USDOJ is in Washington, DC? I have sent two e-mails to US Attorney Holder and have not received a reply. All of America's systems seem to be broken - legal, health, education, economy. Lock up as many citizens as possible, let citizens die from treatable illness, don't educate the children and don't let adults work. America is being ruined from the inside. Corrupt officials are like a cancer destroying America from the inside something that foreign terrorist can never do.

  • ||

    The crooked prosecutors that judges cite for their misconduct are only a small fraction. Many federal judges will bend over backwards to explain away or excuse prosecutorial misconduct, even when it is glaring. Look at what happened to Bryan Epis, sentenced to 10 years for conspiracy to grow (medical) marijuana. After post-conviction hearings proved that the two agents had testified falsely at trial about a spreadsheet (which they know was actually part of a larger, but completely irrelevant document), claiming it was Epis' expected income from growing marijuana in his 15'X15' basement, and that it showed he either earned or expected to earn millions of dollars per week from his grow - the district judge refused to make any findings of whether there was prosecutorial misconduct. Then on appeal, a panel of the 9th Circuit including new appointee Jay Bybee (author of the "torture memo" when he served in the Bush DOJ) swept the issue under the rug stating in an unpublished opinion that Epis hadn't proven prosecutorial misconduct.

    More and more in recent years I see cases where prosecutorial misconduct goes unacknowledged, and is merely tolerated by federal judges unwilling to police the police.

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