Holder Pushes Back Against News Reports on Prosecutorial Misconduct
By Andrew Ramonas | December 10, 2010 9:13 am

Attorney General Eric Holder on Thursday defended the work of Justice Department lawyers after a stinging USA Today investigation into prosecutorial misconduct.

Holder said an “overwhelming majority” of DOJ lawyers handle themselves appropriately. The newspaper reported that the DOJ frequently categorizes misconduct that brought overturned convictions as mistakes.

The newspaper’s investigation found that the DOJ Office of Professional Responsibility probed 756 misconduct complaints between 2000 and 2009, unearthing wrongdoing in 196 cases. OPR recommended DOJ officials fire five prosecutors for misconduct during the last decade. Four of the prosecutors retired or resigned. One was terminated.

“You can find a few instances where mistakes have occurred and people have been disciplined,” Holder said at an unrelated news conference following a meeting with European officials. “But the people who represent the United States on behalf of the United States Department of Justice do so honorably and do so within the rules.”

Nonetheless, many federal judges complain privately – and sometimes publicly - that the DOJ’s internal ethics office is a black hole where embarrassing misconduct allegations against prosecutors are sent to be covered up, not punished. Last year, U.S. District Judge Emmet Sullivan cited mistrust of the OPR process in his decision to appoint his own investigator, Washington attorney Henry Schuelke III, to probe the prosecution errors that led to the dismissal of the public corruption case against then-Sen. Ted Stevens (R-Alaska).

Sullivan at the time said the prosecution errors were  ”too numerous to be left to an internal investigation that has no accountability.”

Earlier this year, OPR was again in the headlines when long-serving Associate Deputy Attorney General David Margolis, who oversees that office, downgraded its findings in an investigation of John Yoo and Jay Bybee, the George W. Bush administration DOJ lawyers who authored the legal memos that justified waterboarding and other harsh interrogation techniques against terrorism suspects. Margolis softened the OPR findings to rule that Yoo and Bybee had been guilty of “poor judgment” and not misconduct in authorizing techniques that Attorney General Eric Holder and others have called torture.

In the Stevens matter, a preliminary draft of an OPR report on the allegations that prosecutors withheld exculpatory evidence from the Stevens defense concluded Assistant U.S. Attorneys Joseph Bottini and James Goeke engaged in misconduct. But the draft report cleared several other lawyers — including lead prosecutor Brenda K. Morris and former Public Integrity Section chief William Welch — of misconduct allegations.

The DOJ has taken steps this year to bolster its prosecutors’ knowledge of Brady v. Maryland, the 1963 Supreme Court case that mandates prosecutors turn over exculpatory information to the defense.

DOJ lawyers now have regular Brady training, written office policies on Brady to review and discovery coordinators at their disposal. The DOJ is also creating a book for its prosecutors that will address discovery issues that may arise while handling a case.

Mary Jacoby contributed to this report.

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