Role Of The Main Stream Media

For the most part, the main stream print media does its part to expose the scope and consequences of prosecutorial misconduct. As one would imagine, the media’s focus on the subject is case specific and ordinarily involves known personalities, high profile defendants, or attention getting language used by judges that may have found misconduct in a given conviction. A good example of this media attention was the so-called Duke Lacrosse Rape Case and the Senator Ted Stevens prosecution. There are many others as well, but let’s not forget that for every case that generates media interest, there are hundreds if not thousands of cases where prosecutorial misconduct tainted the sanctity of a conviction for which no one ever hears a thing about.

On March 14, 2014 the Washington Times reported that the government watchdog group “Project on Government Oversight (“POGO”) attacked former Attorney General Eric Holder’s Justice Department for failing to discipline hundreds of federal prosecutors who were found to have committed serious misconduct during their cases. The POGO Report is examined elsewhere on this website. According to the Times, POGO revealed that between 2002 and 2013 there were 650 cases of reckless or intentional infractions, including one incident where an AUSA carried on a “close personal relationship” with a defendant. Calling the AUSA’s “bad apples,” POGO claimed that Attorney General Holder’s office allowed these miscreant prosecutors to continue getting away with misconduct.

One of the most recent comprehensive investigative pieces done on prosecutorial misconduct by the media was written by Brad Heath and Kevin McCoy in a December 10, 2010 publication in USA Today. Some highlights from that investigation are truly insightful. The USA Today investigation found, among other things, that AUSA’s have little reason to fear losing their jobs, even if they violate laws or constitutional safeguards designed to ensure the justice system is fair. This investigation proves the very point we are seeking to bring to the public’s attention. Even when it is found that AUSA’s committed misconduct, they are unlikely to be fired or even sanctioned. DOJ records suggest that violations more often result in reprimands, suspensions or agreements that allow lawyers to leave government with their reputations intact and their records unblemished. This is in stark contrast to the life and reputations of the wrongfully convicted defendant subject to the misconduct. They go to prison—many for a very long time.

The DOJ routinely conceals its own OPR investigations of the misconduct of prosecutors from the public claiming it is prohibited from doing so based on the Privacy Act. In 2009, then Attorney General Holder said the agency was taking meaningful steps to train AUSA’s to prevent misconduct. Holder’s efforts supposedly including adopting new policies and guidelines in the area of compliance with criminal discovery requirements and the Brady Doctrine. In part, this effort included the issuance of a January 4, 2010 Memorandum authored by David Ogden, Deputy Attorney General, which significantly tightened DOJ policy on AUSA obligations in criminal discovery guidelines. The problem with the DOJ policing its own prosecutors is twofold: (i) its efforts to do so are not working as shown by statistical trends; and (ii) the agency does not follow or enforce its own guidelines. To demonstrate that nothing has really changed at the DOJ, let’s take a look at yet another prosecution arising out of the Eastern District of North Carolina where Bartko’s mishandled case occurred. See Case Study No. 1.