Posts Tagged ‘prosecutorial misconduct’
Friday, December 10th, 2010

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.

Tuesday, August 10th, 2010

The American Bar Association called on the Justice Department Monday to make public more information on the misconduct of its prosecutors.

The ABA House of Delegates, which makes policy for the professional law association, approved by voice vote a resolution urging the DOJ to “release as much information regarding completed individual investigations as possible, consistent with privacy interests and law enforcement confidentiality concerns.”

The DOJ issued reports about the misconduct of trial lawyers and managerial level prosecutors in the past, but it stopped releasing the findings on lawyers who aren’t supervisors about 10 years ago. Now, the DOJ releases statistical information on trial lawyer misconduct along with the more detailed reports on managerial level prosecutors.

“The nonpublic nature of DOJ’s disciplinary determinations deprives the public of information about prosecutors and civil government lawyers who are alleged to have engaged in acts that warrant discipline and about how DOJ responds in such cases,” according to a report that joined the resolution.

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Wednesday, February 10th, 2010

A federal judge in Alaska this week rejected another motion for a new trial or dismissal of charges for a former state lawmaker convicted of corruption in a 2007 case that included errors by federal prosecutors.

Pete Kott (

U.S. District Court Judge John Sedwick denied a motion filed late last month by a lawyer for former Alaska House Speaker Pete Kott (R) to dismiss the charges against him or have a new trial for him since the lawyer received new documents pertaining to the case. Late last month, his lawyer received handwritten notes made during Justice Department and FBI meetings with the attorney who represented a key government witness who admitted bribing Kott.

Earlier last month, Kott’s lawyer filed another motion for dismissal statement filed last month, citing new DOJ guidelines that encourage prosecutors to list all witness interviews and keep their rough notes. Sedwick also rejected this motion.

U.S. District Court Judge John Sedwick wrote in a court order on Monday that Kott’s most recent motion and the handwritten notes “do not compel a different result” from the earlier rulings.

“Much of Kott’s briefing attacks the previous ruling, but in a manner not squarely based on the new documents,” the judge wrote.

Sheryl McCloud, a lawyer for Kott, told Main Justice she was disappointed with Sedwick’s ruling this week and said she will continue to appeal her client’s conviction.

“We really wanted to get to the bottom of the matter and figure out who stopped the flow of information about the moral, ethical, and perjury problems with their principal witness,” McCloud said.

Prosecutors in Alaska have admitted evidence was inappropriately withheld, but have said their actions didn’t cause any harm.

Kott previously asked Sedwick in November to toss his corruption conviction, arguing the same prosecutors withheld evidence in both his case and the unrelated prosecution of former Sen. Ted Stevens (R-Alaska). Stevens conviction was later thrown out by a federal judge in Washington, D.C., at the request of Attorney General Eric Holder.

Assistant U.S. Attorneys Joseph Bottini and James Goeke, as well as former Public Integrity Section lawyers Nicholas Marsh and Edward Sullivan prosecuted Kott. A court-appointed counsel and the department’s Office of Professional Responsibility are probing the prosecutors’ handling of evidence in the Stevens case.

The former state lawmaker was released from prison in June, after prosecutors said they did not hand over exculpatory evidence to the defense.

The story was first reported by The Anchorage Daily News.

This post has been updated from an earlier version.

Wednesday, February 3rd, 2010

A federal appeals court in Michigan today ruled that a former federal prosecutor cannot be sued for misconduct by a man he prosecuted on terrorism charges in 2003, The Associated Press reported.

A federal appeals court reversed a lower court Wednesday and ruled in favor of Richard Convertino, who was an Assistant U.S. Attorney in the Eastern District of Michigan.

Karim Koubriti was seeking millions of dollars from Convertino, claiming his constitutional rights were violated, according to AP.

Koubriti was convicted in 2003 of conspiring to aid terrorists, but the conviction was tossed the following year after the U.S. Justice Department said prosecutors withheld evidence from the defense.

The 6th U.S. Circuit Court of Appeals said Convertino can’t be sued because he had immunity as a prosecutor. Koubriti still has claims pending against an FBI agent.

Convertino’s performance in that 2003 trial was scrutinized by the Justice Department about whether he committed misconduct. Convertino was acquitted in 2007 of conspiring to hide evidence in the case.

Additionally, Convertino is suing the Justice Department to find out who leaked news of the internal investigation to the Detroit Free Press.

Friday, January 15th, 2010

As part of its initiative to address concerns about prosecutorial misconduct, the Justice Department today announced that an assistant chief in the Environment and Natural Resources Division will be its new national coordinator for its criminal discovery programs.

Andrew Goldsmith, First Assistant Chief of the ENRD’s Environmental Crimes Section, will direct the department’s efforts to educate prosecutors about their obligations to turn over potentially exculpatory or other information to defendants. His appointment comes a week after the department released new guidelines for federal prosecutors in applying discovery rules, part of an effort by the DOJ to head off judicial rules changes pushed by U.S. District Judge Emmet Sullivan that would restrict prosecutors’ discretion to decide what information in their possession is relevant to a defense team under Brady.

“Andrew brings a wealth of knowledge and experience in this field, and I am pleased he is taking on this crucial role,” Deputy Attorney General David Ogden said in a news release. “He will be instrumental in overseeing our efforts to ensure all of our prosecutors and law enforcement agents have the necessary training and tools to achieve fair and just results in the nation’s courts.”

Goldsmith’s job description includes, according to the news release:

  • Creating an online directory of resources on discovery issues available to all prosecutors at their desktop
  • Producing a handbook on discovery and case management similar to the Grand Jury Manual so that prosecutors will have an accessible and comprehensive resource on discovery obligations
  • Implementing a training curriculum and a mandatory training program for paralegals and law enforcement agents
  • Revitalizing the Computer Forensics Working Group to ensure the proper cataloguing of electronically stored information recovered as part of federal investigations
  • Creating a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure that all the information is transmitted in the most useful way to federal prosecutors.
First Assistant Chief of the Environment and Natural Resources Division’s Environmental Crimes Section

Justice Department Inspector General Glenn Fine said in a report to Congress last year that restoring confidence in the department is a major challenge after the high-profile public corruption case against former Sen. Ted Stevens (R-Alaska) case was thrown out because of prosecutor mistakes.

Attorney General Eric Holder moved to dismiss the charges against Stevens in April, after an internal DOJ review revealed prosecutors had failed to give the defense material favorable to Stevens’ defense. A court-appointed counsel is investigating whether they did so intentionally. Fine said in the report that the Stevens fiasco “created concern about the prosecutors’ adherence to professional standards of conduct.”

On Dec. 31, U.S. District Judge Ricardo Urbina rebuked prosecutors in the District of Columbia for their handling of a manslaughter case against five former Blackwater Worldwide guards accused in a shooting incident in Iraq that left 17 people dead.

In ordering dismissal of the indictment, Urbina said prosecutors had violated the defendants’ constitutional rights by making use of compelled statements the guards had given about the incident under threat of losing their jobs.

Wednesday, January 13th, 2010

A former Alaska lawmaker is citing new Justice Department guidance for prosecutors on discovery procedures in his effort to have his 2007 conviction on public corruption charges repealed, The Associated Press reported today.

Pete Kott (

In a motion for dismissal statement filed this week, a lawyer for former Alaska House Speaker Pete Kott cited new DOJ guidelines that encourage prosecutors to list all witness interviews and keep their rough notes. The lawyer, Sheryl Gordon McCloud, said the Alaska U.S. Attorney’s Office has yet to hand over items from a 2006 interview with ex-VECO Corp. chief Bill Allen, the AP said.

Allen was a key witness against Kott as well as ex-Sen. Ted Stevens (R-Alaska), whose conviction on public corruption charges was overturned last year after the Justice Department said it had mishandled potentially exculpatory evidence.

“[T]hat memo is based on existing law, and sets forth materials that government attorneys must seek out, review, and disclose,” McCloud wrote in the court filing. “It includes not just material from the U.S. Attorney’s files but from all those associated with the prosecution team, and it includes not just information memorialized in written statements but also evidence favorable to the accused that is transmitted in a ‘conversation.’ ”

Prosecutors in Alaska have admitted evidence was inappropriately withheld, but have said their actions didn’t cause any harm.

Kott previously asked Judge John Sedwick in November to toss his corruption conviction, arguing the same prosecutors withheld evidence in both his case and the Stevens trial.

Kott was prosecuted by Assistant U.S. Attorneys Joseph Bottini and James Goeke, as well as former Public Integrity Section lawyers Nicholas Marsh and Edward Sullivan. A court-appointed counsel and the department’s Office of Professional Responsibility are probing the prosecutors’ handling of evidence in the Stevens case, which was thrown at the request of Attorney General Eric Holder.

The judge has several options. He could let the Kott conviction stand, dismiss it and order a new trial, or dismiss it with prejudice. He has not said when he will rule.

Kott was released from prison in June, after prosecutors said they did not hand over exculpatory evidence to the defense.

Monday, January 4th, 2010

The Associated Press’s Matt Apuzzo spotted an interesting footnote in federal Judge Ricardo Urbina’s New Year’s Eve opinion dismissing an indictment against former Blackwater guards who were accused of killing Iraqi civilians.

On page 26 of the 90-page ruling, Urbina wrote that he is considering two motions to dismiss the indictment based, in part, on prosecutorial misconduct. The judge has already jettisoned the charges, citing what he called “reckless” government missteps in connection with off-limits interviews the guards gave to the State Department under a grant of immunity.

So what’s left to consider? Apuzzo reports that Urbina, of the District of Columbia federal court, is weighing a formal misconduct finding, which would trigger an investigation by the Justice Department’s Office of Professional Responsibility and possibly lead to sanctions against the government or individual prosecutors.

In the footnote, Urbina said he would issue a separate opinion addressing the two motions, which are under seal. No hearings have been scheduled.

Wednesday, November 4th, 2009
Paul Clement (King & Spalding)

Paul Clement (King & Spalding)

Supreme Court justices seemed to struggle on Wednesday with the question of when, if ever, prosecutors should be held personally liable for their officials acts, reports The National Law Journal’s Tony Mauro.

Curtis McGhee and Terry Harrington, who served 25 years in prison, sued prosecutors for violating their civil rights by allegedly coercing and coaching witnesses to falsely accuse them of killing a retired Iowa policeman. The suit, Pottawattamie County v. McGhee and Harrington, targets County Attorney David Richter and an Assistant County Attorney Joseph Hrvol.

Police who manipulate evidence have qualified immunity, but prosecutors have absolute immunity. The issue before the court is whether prosecutors performing police-like duties before trial, and then either participate or do not participate at trial, enjoy protection from liability.

Mauro reports:

Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook. But the long tradition of strong prosecutorial immunity also seemed to tug at the Court.

“We’re worried about the chilling effect on the prosecutors,” said Chief Justice John Roberts Jr. at one point.

The former Iowa inmates were represented by former Solicitor General Paul Clement, who made 49 appearances before the court as the government’s chief advocate during the Bush administration. Clement, now at King & Spalding, took the case pro bono, according to Mauro.

Clement said even prosecutorial immunity has its limits.

“The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable,” Clement told the Court. “I think the prosecutor who engages in the pretrial misconduct and then doesn’t participate in the trial is just as liable as that police officer, and I can’t think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial.”

But where to draw the line? Lawyers arguing for the county — Deputy U.S. Solicitor General Neal Katyal and Stephen Sanders, an associate at Mayer Brown – said any erosion of immunity would be seized on by every disgruntled defendant and hinder prosecutors in the performance of their official duties.

“If prosecutors have to worry at trial that every act they undertake will somehow open the door to liability, then they will flinch in the performance of their duties and not introduce that evidence,” Katyal said.