Mike Fox
In March 2020, the US Attorney’s Office for the Southern District of New York descended into chaos as one of its cases collapsed. Widely regarded as the most prestigious office in the nation, these “esteemed” prosecutors admitted in an internal email to lying to a federal judge and seeking to conceal evidence from the defense during an ongoing trial. This win-at-all-costs mentality doesn’t instill confidence, much less respect and admiration.
Unfortunately, it gets worse. The tainted prosecution of Ali Sadr Hashemi Nejad demonstrates not only the lengths to which some prosecutors will go to secure a conviction, but also how the most powerful actors in our criminal justice system are the least accountable.
Federal prosecutors accused Nejad of violating US sanctions against Iran. In the middle of the trial, prosecutors sought to introduce a new exhibit that had not previously been disclosed to the defense. An Assistant United States Attorney suggested they bury the new exhibit in a stack of papers the prosecution was obligated to disclose, hoping defense attorneys wouldn’t notice.
Incredibly, prosecutors continued to turn over new evidence to the defense after the jury voted to convict Nejad, including a recording of an FBI interview with a witness that cast doubt on Nejad’s culpability. Belatedly realizing the gravity of their failure to timely disclose critical evidence, prosecutors moved to dismiss. But US District Judge Alison Nathan insisted on a full accounting of the prosecution team’s misconduct. She ordered prosecutors to provide a full list of exculpatory material and identify all the prosecutors and supervisors implicated in the misconduct and subsequent coverup—which almost never happens. Judge Nathan vacated the tainted verdict, dismissed the charges with prejudice, and urged an investigation by the Department of Justice’s Office of Professional Responsibility (OPR).
In the half-century since its inception, the Office of Professional Responsibility has become a veritable graveyard where allegations of prosecutorial misconduct go to die. OPR was established in 1975 by a directive from then-Attorney General Edward Levi in response to the fallout from the Watergate scandal. Levi tasked OPR with “[r]eceiving and reviewing any information concerning conduct by department employees that may be in violation of law, regulations or orders, or applicable standards of conduct.” But OPR has operated in a shroud of self-imposed secrecy and anonymity—too often sweeping egregious allegations of prosecutorial misconduct under the rug.
The Office of Professional Responsibility not only fails to hold prosecutors accountable but refuses as a matter of official policy to even identify the lawyers involved or publicize the circumstances surrounding the misconduct. Each fiscal year, OPR publishes an annual report. These reports expose a substantial number of instances of prosecutorial misconduct and lapses of professional judgment by Justice Department attorneys. The reports summarize the investigations and inquiries undertaken by OPR, but they deliberately omit the names of the prosecutors involved and other identifying details, such that it is impossible to tell what actually happened. Findings rarely lead to discipline and without transparency, Justice Department attorneys are not subject to public scrutiny.
The Justice Department is the only federal agency whose inspector general lacks the authority to investigate allegations of professional misconduct by agency lawyers. The Inspector General Act of 1978 created an arbitrary carveout for Justice Department lawyers. For years, members of Congress on both sides of the aisle have tried to close this loophole, which shields Justice Department lawyers with the power to deprive us of our liberty from independent oversight and accountability. This double standard exists even within the Justice Department, where all other employees are subject to inspector general investigations. If reintroduced and enacted, the Inspector General Access Act would transfer the responsibility to investigate allegations of misconduct relating to an attorney’s authority to investigate, litigate, and provide legal advice from the OPR to the Office of the Inspector General. Meaningful oversight by the Inspector General would bring needed independence and accountability to a workforce known for its opacity and lack of candor.
The botched 2018 prosecution of Nevada rancher Cliven Bundy further illustrates the need for independent oversight of federal prosecutors. Rampant prosecutorial misconduct deprived not only the defendants but also the public of a fair trial and resolution. Whistleblower Larry Wooten, who led the investigation for the Bureau of Land Management, unearthed a widespread pattern of misconduct, contending that supervisory agents had failed to turn over required discovery to the prosecution team that would likely have helped the defense, including by supporting its factual theories and impeaching key government witnesses.
In 2018, District Judge Gloria Navarro found that federal prosecutors “[v]iolated the universal sense of justice.” Citing flagrant prosecutorial misconduct, she dismissed with prejudice the charges against Cliven Bundy, his two sons, and an alleged co-conspirator. Judge Navarro was particularly concerned with how prosecutors failed to disclose video that documented the presence of snipers around the Bundy Ranch prior to the 2014 standoff. The U.S. Court of Appeals for the Ninth Circuit—in affirming the dismissal—noted “[t]hat the deliberate choices to withhold those documents were not cases of simple misjudgment.” The panel explained how the “[f]acially exculpatory evidence directly negated the government’s theory that the defendants lied about fearing snipers.”
Cliven Bundy’s experience is far from alone. In U.S. v. Chapman, the Ninth Circuit affirmed the dismissal of an indictment upon finding that prosecutors “[f]ailed to meet their obligations to disclose over 650 pages of documents to the defense.” Both cases happened under the leadership of longtime First Assistant and then Acting U.S. Attorney Steven Myhre. When Myhre’s tumultuous tenure finally came to an end—without explanation—he became “senior litigation counsel” and was tasked with mentoring and training young prosecutors. It is both troubling and telling that a federal prosecutor with a record of persistent misconduct would be entrusted to mold future generations of federal prosecutors.
Oftentimes, evidence of prosecutorial misconduct only comes to light when cases go to trial. Yet, due in great part to often highly coercive plea bargaining, only about 2.3 percent of federal cases go to trial. This makes it all the more important to hold prosecutors accountable when they are caught engaging in misconduct. If a doctor were to amputate the wrong limb you can rest assured that they would be identified, subject to personal liability, and barred from practicing medicine. Yet when federal prosecutors fail to live up to their ethical obligations, the public is kept in the dark. Shifting the Office of Professional Responsibility’s function to the Office of the Inspector General would put federal prosecutors in line with the rest of the federal workforce and help to expose and address pervasive prosecutorial misconduct.