- The Washington Times - Thursday, March 13, 2014

Hundreds of federal prosecutors over the past decade have committed serious misconduct, but the Justice Department has refused to release the names of the offenders, according to a report released Thursday.

From 2002 through last year, the department’s office of professional responsibility documented more than 650 infractions. Most were categorized as “reckless” or “intentional misconduct,” the Project on Government Oversight reported.

In one case, a prosecutor had a “close personal relationship” with a defendant with whom he helped broker a plea deal that resulted in a release from custody. On other occasions, attorneys didn’t turn over exculpatory evidence to defendants.

But Justice Department officials steadfastly refuse to make the identities of misbehaving government attorneys public, in essence shielding them from further reproach.

“The lack of transparency insulates the Justice Department from meaningful public scrutiny,” Danielle Brian, POGO’s executive director, said in a statement announcing the group’s findings. “Our findings raise serious concerns that the attorney general’s office isn’t aggressively overseeing or disciplining its bad apples.”

Just this week, the same department watchdog office issued a blanket denial to The Washington Times for information about actions by prosecutors in a nearly decade-old federal drug conspiracy case in Washington.

Sens. Mike Lee, Utah Republican, and Jon Tester, Montana Democrat, introduced legislation Thursday that would push for some extra review of prosecutors’ decisions by giving the Justice Department’s independent inspector general the power to investigate attorney misconduct.

Currently, Justice’s office of professional responsibility investigates those cases.

“Current law invites undue influence from the attorney general’s office into the process and should be changed to ensure the integrity of investigations of misconduct within the Justice Department,” Mr. Lee said.

Emily Pierce, a Justice Department spokeswoman, said the department often can’t release names of those found to have engaged in misconduct because of Privacy Act concerns.

But she said the department provides defense attorneys, judges and others who file complaints with notifications about how the accusations were resolved.

“The department takes all allegations of attorney misconduct seriously, and that is why the office of professional responsibility thoroughly reviews each case and refers its findings of misconduct to relevant state bar associations when the rules of the state bar are implicated,” Ms. Pierce said.

“As the POGO report itself points out, the department has set a higher standard for its attorneys than do many state bars.”

In its report, POGO said the trend toward shielding government attorneys has been going on for years.

Under the George W. Bush administration, the office of professional responsibility made less information on misconduct findings available to the public, the report said, and the Obama administration has continued the pattern.

Overall, POGO’s review of a decade of records found the office of professional responsibility substantiated accusations that 48 government attorneys misled courts and 29 failed to provide exculpatory evidence to defendants.

The group based its findings on records obtained through the Freedom of Information Act, Justice Department reports and other information obtained by the GovernmentAttic.org website.

While most misconduct cases remain hidden, there are exceptions. Charges against Sen. Ted Stevens, Alaska Republican, were dismissed in 2009 after prosecutors failed to turn over key evidence in the case.

The office of professional responsibility’s 2012 annual report shows officials closed 32 cases that year, which resulted in findings of professional misconduct in 14 instances. In 11 of the 14 matters, “a Department attorney engaged in professional misconduct by acting in reckless disregard of an applicable obligation or standard,” the report concluded.

Steve Salzburg, a law professor at George Washington University who helped draft a resolution by the American Bar Association in 2010 seeking more disclosure on misconduct inquiries, said attorneys don’t necessarily want the names released but would like more details on the charges.

“We weren’t out for names,” said Mr. Salzburg, who was not speaking on behalf of the bar group. “But what we wanted to know was: What kind of conduct got referred to state bars and the kinds of allegations that get made where Justice says ‘we conclude this isn’t a problem.’”

“It would help us to know that, because if we think those things are problem, then there’s a chance to talk about it,” he said.

In the case of The Times’ request for information, the office of professional responsibility refused to confirm or deny the existence of any records. But The Times, citing court records and interviews, already reported that the Justice Department office was looking into why prosecutors had missed a key deadline to decide whether to pursue the death penalty in a drug conspiracy case against Antwuan Ball of Washington, D.C.

Ball was acquitted of murder, conspiracy and other felony charges in a long-running trial in Washington. He was convicted of a single, half-ounce hand-to-hand crack cocaine transaction and was sentenced in 2011 to 18 years in prison. A decision on his appeal is expected soon.

Before the trial took place, however, prosecutors failed to file a notice of intent to seek the death penalty in the case, a decision that requires rigorous reviews at the U.S. attorney’s office and the Justice Department, as well as the attorney general’s personal approval.

The Justice Department told The Times in a March 11 letter that there was no overriding interest to release records or to even acknowledge their existence.

• Jim McElhatton can be reached at jmcelhatton@washingtontimes.com.

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