Tuesday, August 25, 2009

Ethics Investigations of Federal Prosecutors: O.P.R.

Did you know that federal prosecutors have someone to fear, if they violate your Constitutional rights? Of course, they fear a federal judge or an appellate court zapping them for denying a defendant a fair trial. And they should also fear that their state bar may sanction them, too. But there is another person who federal prosecutors fear even more! It is an attorney-investigator from the Office of Professional Responsibility, (or OPR), of the Department of Justice.
Each year, OPR investigates ethics complaints made against federal prosecutors around the country. In a recent year, according to the OPR website, there were over 869 complaints made against government attorneys, including a wide range of prosecutorial misconduct allegations. The complaints included such things as prosecutors withholding evidence favorable to the defense, prosecutors improperly coercing witnesses, and prosecutors misrepresenting facts to the court. Fortunately, not many federal prosecutors violate ethics rules and not many are disciplined by the Attorney General based on these OPR investigations. In a recent year, for example, out of 869 complaints, only 18 federal prosecutors were actually fired or otherwise disciplined.
In my career as a federal prosecutor, I have seen a relatively small number of actual ethics violations. But I know they do occur! For example, I have seen one prosecutor improperly subpoena a defendant to testify before a grand jury. Another prosecutor threatened grand jurors if they failed to indict a case! I could tell you other "war stories!" Believe me, federal prosecutors are not immune against violating defendants' Constitutional rights. It happens! So, in my opinion, I am thankful that OPR exists, just to make the bad apples -- the unscrupulous federal prosecutors --have someone to fear; that is, at least if they get caught!

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