Legal Commentary

Brady violations - failures by prosecutors to hand over exculpatory or impeaching evidence to the defense - have been surfacing in the news lately, particularly with regard to federal prosecutions.  Ted Stevens'  conviction was undone by Brady violations, and in this press release, the DOJ announced it was withdrawing its prosecution of two Alaska officials in a separate corruption prosecution due to Brady-related misconduct.

Wondering if this was evidence of a wider problem, I visited the website maintained by the DOJ's Office of Professional Responsibility or OPR, which is responsible for investigating allegations of prosecutorial misconduct by federal prosecutors.

According to OPR's 2006 annual report (the most recent report available), OPR opened 84 investigations of allegations of professional misconduct, which included Brady  violations, abuse of prosecutorial authority, misrepresentations to the court or counsel, and other miscellaneous allegations.The bulk of allegations were referred by judges in 2006, although some were referred by internal DOJ personnel, and a few by private attorneys.  The report further noted that OPR received over 800 complaints, which it whittled down to just 84 investigations.

During the same time period, OPR "closed" (or completed) 88 investigations and found professional misconduct in 20% of those cases. (It also found "poor judgment" in an additional 15%, and that attorneys had made "a mistake" in an additional 25% of the 88 closed investigations).  OPR  recommended disciplinary action against 14 attorneys.  According to the report, 3 were suspended, 4 were reprimanded, 3 resigned, 3 filed grievances, and 1 escaped with no discipline as the Department declined OPR's recommendation for discipline.

Now, there are 94 United States Attorney's Offices, and over 5000 federal prosecutors.  So in 2006, fewer than than 1% were formally disciplined for prosecutorial misconduct.  The numbers were not significantly different in 2005, except that the 2006 OPR report brags that the finding of professional misconduct (20% among a very small data set) is down from the previous year's figure of 28%. 

So what does all of this mean?

You could conclude that professional misconduct rarely occurs among federal prosecutors, but that when it does occur, it is a doozy and the outcome is devastating for both the government and prosecutors alike.  That's why these Brady-type violations get so much press.  

You could also conclude, however, that the OPR model is an ineffective mechanism for promoting internal compliance.  It investigates and recommends formal discipline in a tiny number of really "bad" cases, while weaker allegations of wrongdoing go unnoticed (at least formally - the individual US Attorneys Offices may be exerting their own, internal and informal discipline over attorneys).  It is primarily reactive and not proactive; it operates out of Main Justice (in D.C.) and therefore is divorced from the ongoing business of line attorneys who prosecute cases in the various districts; and it does not operate a user-friendly hotline or form for filing complaints.  To the contrary, one must send a letter in writing to OPR's acting counsel.

It would seem that a regime that pairs low frequency investigations with high sanctions is doomed to fail on the deterrence front.  Instead of recognizing and treating misconduct issues when they are still small, OPR as now configured functions something akin to the "reverse lottery" that Larry Ribstein has discussed in the context of corporate crime: those who are unlucky enough to get caught lose in spectacular (and potentially embarrassing) fashion, while everyone else's mistakes fly under the radar, possibly to be addressed by their local US Attorney's Office - or not.

So, as Attorney General Eric Holder contemplates ways to avoid future Brady debacles, he may want to rethink the Department's approach to internal compliance and OPR.  After all, DOJ has been at the forefront of efforts to reform corporations by exhorting them to improve their internal compliance mechanisms.  Why not apply the same teachings internally?