A Pattern of Misconduct by Federal Prosecutors?

When we left the Manhattan DA’s office some years ago, we firmly believed that prosecutorial misconduct was as rare as it was despicable.  We can’t think of a single one of our colleagues for whom it would have even occurred to cut corners, and it certainly would not have been tolerated by the bosses.  Everyone was just… decent.  The culture wasn’t so much a dogfight as a collegial, practically patrician, management of cases.  Admittedly, we didn’t have much contact with prosecutors from other offices, but surely they couldn’t have been that different.  We all had the same job, to seek justice rather than mere convictions.  And as for federal prosecutors… well, they were just like us, right?  If anything, their culture was even more collegial, and even less likely to result in (ick) prosecutorial misconduct.

As any reader of this blog can tell, we’ve been disillusioned by the reality that prosecutorial misconduct is not only more common than we would have believed, but that it is committed with disturbing frequency by federal prosecutors.  A couple of years ago, we were disquieted by what was going on in the Ted Stevens fiasco.  A year and a half ago, we saw that Judge Posner had to direct an acquittal in a case where the feds made fraudulent misrepresentations, and we wrote that we hoped this wasn’t becoming a trend.  A couple more instances later, we were asking what the heck was going on.  The pattern has only continued since then.  (Here’s a roundup link to our posts tagged for “prosecutorial misconduct.”)

So this morning we were sadly not surprised to read (in USA Today, of all places) a lengthy discussion of the growing problem of prosecutorial misconduct by federal prosecutors.  You can read the whole thing here.

What’s going on?  The article posits that they’re trying too hard to win, with too little training or supervision, while juggling too many cases.

In some cases, Justice Department records and court documents suggest that prosecutors broke the rules inadvertently, often because they were inexperienced or unsupervised.

Former prosecutors from offices across the nation insist that the Justice Department never put pressure on them to cut corners — “there wasn’t any pervasive attitude of win-at-any-cost,” said Rick Jancha, a former prosecutor in Orlando.

But there are other pressures. For one thing, prosecutors are taking on more cases than ever. In the mid-1990s, the offices had one attorney for every 14 defendants; last year, they had one attorney for every 28. Even though most of those cases end in plea bargains, the increase can be taxing, because prosecutors often are responsible not just for conducting trials but overseeing investigations.

And prosecutors put pressure on themselves. “They’re the A+ students. They’re not used to losing,” Levenson said.

“Prosecutors think they’re doing the Lord’s work, and that they wear the white hat. When I was a prosecutor, I thought everything I did was right,” said Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer. “So even if you got out of line, you could tell yourself that you didn’t do it on purpose, or that it was for the greater good.”

Beyond that, most federal prosecutors do their jobs with little day-to-day supervision, said Michael Seigel, the second-in-command of the U.S. attorney’s office in Tampa from 1995 to 1999.

And, until last year, prosecutors were not required to get regular training in ethics such as their constitutional duty to share evidence with defendants. That training is important: Many of the legal rules prosecutors must follow are complex, and not everyone agrees on the boundary between aggressive lawyering and misconduct.

We don’t buy it.

We’re sorry, a caseload of 14 went up to 28?  Boo freaking hoo.  As a felony prosecutor, we routinely handled caseloads of 40 or more active indictments (not even counting the scads of cases we’d eventually resolve without going to the grand jury).  That was perfectly normal in an office that had more than 10,000 indictments a year, and it wasn’t too much work for anybody.  People somehow managed to go home at 6 without falling behind.  28 cases?  Luxury.

The whole “they’re not used to losing” thing is just cockiness.  That’s definitely something we’ve noticed.  In our experience, though, that usually translates into being a jerk about plea negotiations and making mistakes that we then get to exploit on behalf of our clients.  We doubt that cockiness is a driving force behind actual misconduct.

And the lack of supervision and training isn’t much of an explanation, either.  An honest person isn’t going to cheat, regardless of whether someone else is watching or not.  A cheater is going to cheat if he thinks he can get away with it, and supervision and training won’t change that.  There are cases, of course, where supervision and training might prevent blunders, but errors are not the same thing as misconduct.

The most insightful explanation here is the observation that the end justifies the means.  Breaking the rules is fine if, at the end of the day, it ensures that the criminal gets convicted.

Which is precisely the opposite of how our criminal justice system is supposed to work.

The entire point is to follow the rules.  It’s the mark of our civilization.  We’re civilized because we live by rules, and because we have a rule of law that applies just as much to the government as to the individual.  Justice is not done by getting convictions.  Justice is done by following the rules, first and foremost.  By exercising prosecutorial discretion.  By disclosing Brady material.  By being truthful.  By being as good as your word.  The mere idea that the ends justify the means is tantamount to prosecutorial misconduct.  As far back as 1908, Canon 5 has made it abundantly clear that justice is not the same thing as convictions, and the role of the prosecutor is to seek one and not the other.


Then again, maybe that cockiness really is a factor after all.  We said as much just last week, so it must be true.  Only we called it “hubris” instead.

Federal cases usually are rock-crushers.  The sentences are beyond belief, even for the stupidest stuff.  The rules are stacked against defendants.  In many cases, even the best lawyers advise clients to take whatever the feds deign to offer, which is usually not much.  So it shouldn’t come as much surprise that the feds can sometimes get sloppy.  They just don’t get a lot of pushback, and it’s easy to slide into a “good enough for government work” mentality.

That makes sense.  It explains a lot of the sloppiness that we’ve been able to exploit, in otherwise unwinnable cases.  But carelessness can also mean carelessness with the truth, or cheating.  Prosecutorial misconduct could well be occurring, not because of some malevolent drive to get an unjust conviction, but because of an attitude that “it’s good enough for me, so it ought to be good enough for you.”

We’ve had federal prosecutors say as much in court.  We did one case a couple years back, where the Antitrust Division lawyer basically said the court ought to go along with the government’s faulty economic calculations, because doing it right is just too hard.  Seriously.  The Antitrust Division, of all things.  And we’ve had other feds argue that, sure they broke the rules pretty badly, but it’s good enough for government work.

Well it isn’t.

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3 Responses

  1. shg says:

    Great post, Nathan, though I have to note that the use of the “royal we” (Pluralis Majestatis) is a bit disconcerting.

  2. Nathan says:

    Thanks! When I started the blog, I was shooting for the tone of an editorial board — impersonal, yet opinionated. So I went with the “editorial first person plural.” Impersonality went out the window after a while, but by that point the style was too much a part of the writing to abandon it.

    I let myself use the first person singular in my comment responses, of course.

  1. March 11, 2016

    […] Indeed, five years ago, USA Today reported on its LEXIS search had a major story on the issue. Former Manhattan ADA Nate Burney and Scott Greenfield wrote on the issue and reached a similar conclusion. Scott wrote […]

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