AUTHORITATIVE SOURCES AGREE THE “OPR” IS INEFFECTIVE

There have been attempts over the last decade to focus a brighter light on federal prosecutors who have committed serious misconduct during their cases, but no one seems to be listening—including most federal courts, nor the DOJ. The Project on Government Oversight (“POGO”), a government watchdog group, has criticized the DOJ for failing to effectively discipline hundreds of miscreant AUSA’s. POGO claims that between 2002 and 2013 there were over 650 instances of reckless or intentional violations by AUSA’s. The Department of Justice’s OPR has the authority to investigate AUSA misconduct and to impose discipline on prosecutors, but OPR is known as the lap dog for the DOJ that protects AUSA’s rather than aggressively overseeing and disciplining its bad apples. POGO issued a comprehensive report with its findings based on records obtained through the Freedom of Information Act, DOJ documents, and www.governmentattic.org. From time-to-time, the OPR has come under heavy criticism from Congress and the courts, but nothing really has changed concerning its ineffectiveness since its creation in 1975 following the Watergate scandal. For example, in 2001 the General Accounting Office (“GAO”) published a 64-page report heavily criticizing the operations of the OPR. The entire GAO report is linked (Link #2) below.

Michael Shaheen, OPR’s founding director, retired in 1997 amid an investigation by the DOJ’s Inspector General that found that he and two top deputies had engaged in misconduct by violating travel regulations. After his retirement, Shaheen told National Public Radio that OPR should be abolished because it was “plagued by a history of delays and the bureaucratic layers imposed 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.” Available records reveal that the DOJ routinely clears AUSA’s even after courts found misconduct. For example:

  • A Pennsylvania court rejected a death sentence for another inmate’s death for torturing and killing his cellmate. The court found that the AUSA failed to disclose evidence the accused could have used to challenge the government’s claim that he planned the murder in advance. OPR disagreed finding there was no misconduct and no violation of the Brady Doctrine.
  • A federal appeals court overturned a man’s bank robbery conviction in Tennessee because it found the AUSA had clearly misrepresented evidence to the jury in a deliberate disregard of his duty. OPR again disagreed, claiming the AUSA had made a mistake rather than committing intentional misconduct.
  • The Fourth Circuit ruled in Case No. 1 chronicled on this website, that the lead AUSA had engaged in serious discovery abuse by withholding agreements entered into between witnesses and the government which detailed promises made to the witnesses by the AUSA. Claiming that the AUSA merely forgot to look for those agreements in his file, the OPR found that the AUSA had not engaged in intentional misconduct even though the OPR agreed the documents should have been disclosed, the AUSA had prepared and signed the agreements, and sat silently in the courtroom during the witness’s testimony falsely denying any such agreements. The OPR’s final investigative report openly disagreed with the findings made by the Fourth Circuit Court of Appeals.

There is very little transparency on how the OPR performs its mandate to investigate AUSA misconduct. The past president of the National Association of Criminal Defense Lawyers, Jim Lavine, has been quoted as saying that the “OPR is a black hole. Stuff goes in, nothing comes out.” Lavine also remarked that “[t]he public, the defense attorneys and the judiciary have lost respect for the government’s ability to police themselves.” Often times when misconduct is found to exist by an AUSA in a given case, not only is there a lack of transparency by the DOJ, the Department asks judges to expunge or sanitize AUSA names and references to misconduct from publicly available opinions. A classic example of this tactic was undertaken in Bartko’s case on appeal to the Fourth Circuit. There the U.S. Attorney’s Office petitioned the court for rehearing specifically requesting the appellate court to remove language in the decision which might damage the reputations of the AUSA’s involved in Bartko’s case. No rehearing was granted. Examining the history of the OPR’s investigations of miscreant AUSA’s over the last two decades reveals two well established conclusions: (i) the OPR claims its staff is overworked and the office is underfunded; and (ii) the OPR whitewashes a very large percentage of AUSA’s who are subject to complaints and investigations of prosecutorial misconduct.

Recent media reports have found that discipline administered to AUSA’s is exceedingly rare. Even in cases involving high-profile defendants, and/or egregious misconduct, such as the 2008-2009 federal prosecution of the late U.S. Senator, Ted Stevens, the AUSA’s involved avoided any serious consequences for their blatant misconduct. After revelations of the misconduct and the dismissal of all charges upon which Senator Stevens stood trial, the AUSA’s were subjected to light suspensions, and even later those were set aside by an administrative law judge. Uncharacteristic of the OPR, its investigation of the AUSA misconduct in the Stevens case resulted in the issuance of a 686-page investigative report which was released to the public and remains available on the Internet, seen here.